George Brandis’ exposure draft of amendments to the Racial Discrimination Act is a magnificent example of how to repeal legislation without admitting you’re repealing legislation.
It is, without doubt, a reform that advances the cause of freedom of speech in Australia.
The reforms neuter the provision (Section 18C) which Andrew Bolt was found to have breached in 2011 with his newspaper columns discussing white-skinned Aboriginal people.
As supporters of the existing law point out, the next section of the Racial Discrimination Act(Section 18D) is supposed to provide exemptions to 18C, for instance, any reasonable and good faith statements on topics in the public interest.
But Justice Bromberg decided that Bolt was not eligible to meet the exemptions in Section 18D that cover political comment because the columns were not written in good faith. The judge said there were too many factual errors and Bolt had adopted an excessively sarcastic tone.
Well, 18D is to be repealed, and replaced with an extraordinarily, incredibly powerful exemption that reads (and it is worth reading in full):
This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.
There’s no “reasonable” or “in good faith” there. No ambiguous terms of art a judge could use to decide some speech on political, social, or cultural topics didn’t actually qualify for the exemption.
And this rewritten exemption would undeniably have covered the Andrew Bolt columns, which spoke of what he saw as a social, cultural and political phenomenon of lighter-skinned people choosing to identify as Indigenous.
The full amendment presented by Brandis today makes a lot of other changes.
The old Section 18C prohibited any speech that would offend, insult, humiliate and intimidate a group on the basis of their, race, colour, national, or ethnic origin.
The words offend, insult, and humiliate are gone. Intimidate is more tightly defined as intimidation that involves physical harm, duplicating much existing law. The amendment adds “vilify”, which it defines as inciting hatred against a person or group.
But none of that matters if the grand exemption applies.
The exemption is important not just for what it does to the new Section 18C, but for what it symbolises.
Back in the early 1990s, the High Court decided that freedom of speech is a fundamental lynchpin of democracy, and that therefore the constitution implied some sort of freedom of political communication.
Putting aside whether implied rights make much sense, the court’s basic reasoning was a good one: it is absurd to talk of a democracy that doesn’t freely and openly debate political matters. Or social, cultural, religious, artistic, academic or scientific matters. Democracy is more than just voting.
The defence lawyers in the Bolt case didn’t base their argument on the right to political communication. It’s a shame that they didn’t. The strict confines that the High Court has placed around this right are starting to fall apart, as we saw in the Unions NSW case late last year. It would have been fascinating to see what they might have done with Section 18C if it was taken that far.
The new exemption makes clear the fundamental importance of free discussion on any matter of public interest, no matter how extreme that discussion is.
Yet Brandis is right that protections against racial vilification remain, even in the new amended section.
To understand why you have to be familiar with the sort of cases section 18C is used in. Most section 18C cases don’t cover high profile things like Andrew Bolt columns. I’ve mentioned one such case in the Drum before: where a lawyer called a security guard a “Singaporean prick”.Here’s another one, from 2012 – a family dispute that involved throwing racial slurs around.
Nor does anybody suggest that these sort of cases are major wins in the battle against prejudice.
Depending on how judges choose to interpret the word “vilify” and the phrase “racial hatred” – both added to Section 18C in the exposure draft – it is highly plausible that they would still be considered unlawful acts of racial discrimination. (And of course, there’s all those state racial and religious vilification laws.)
But who knows? Legislation can travel in funny directions once Parliament puts it in the hands of the courts.
That, ultimately, is the problem with leaving Section 18C in there; with not going the whole hog and committing to a full repeal.
The phrase “racial hatred” comes from state law, but we can’t know how future judges will choose to interpret it. There is always some risk that Section 18C could be reactivated in some sense.
Now given the strength of the broad exemption, it’s fair to say that risk might be small. But why not just do the full repeal?
Politics, obviously. The complex amendments allow George Brandis and Tony Abbott to say that they haven’t repealed any protections, just cleaned them up.
And that argument is pitched entirely at the Liberal party room, who will be the ones that decide whether this draft exposure bill becomes Liberal Party policy.