Menu Close

View from The Hill

The Racial Discrimination Act may be too wide but changing it has disproportionate dangers

Attorney-General George Brandis will find that changing the status quo can be dangerous. AAP/Daniel Munoz

In September 1996 John Howard said one great change that had come over Australia in the early months of his government was that “the pall of censorship on certain issues” had been lifted and people felt able to speak a little more freely.

He was addressing Queensland Liberals less than a fortnight after Pauline Hanson’s maiden speech, with its appeal to racism. Howard, aware of her populist appeal, was slow to condemn Hanson, a reluctance that brought him considerable grief.

Now another Liberal government has opened a new debate about “free speech” and what Attorney-General George Brandis calls the “chill of censorship”. Brandis describes the Liberal party as “the anti-political censorship party”.

Tony Abbott never went soft on Hanson – indeed, absolutely the opposite. He believes generally in the free speech mantra but the controversial changes to the Racial Discrimination Act unveiled on Tuesday have been driven specifically and explicitly by conservatives’ outrage at what happened to News Corp columnist Andrew Bolt, who lost a court case after he cast aspersions on some fair-skinned Aborigines.

Abbott is entering a valley of pain over these changes, now up for community consultation – hardly what he needs when so many other issues confront the government.

There will be arguments ahead – as there have already been - with ethnic communities and the Jewish lobby. The Australia/Israel and Jewish Affairs Council said after examining Tuesday’s proposals: “To pass the amendments as they stand would risk emboldening racists, threatening the quality of life of ethnic minorities in Australia and seriously straining the fabric of our social cohesion and harmony.”

What Brandis calls “reform” will bring difficulties for two sets of Liberal MPs – those in seats where there are high ethnic concentrations (think western Sydney) and those in inner areas with “progressive” constituencies (think Wentworth, held by Malcolm Turnbull). Backbenchers have aired concerns in the Coalition party room.

The changes would remove the present ban on actions that “offend, insult, humiliate”, while retaining “intimidate” and introducing a new provision against vilification. “Vilify” is defined as inciting hatred. The definition of intimidation is extraordinarily narrow – it relates only to causing fear of physical harm to persons or property.

The test of whether an act is reasonably likely to vilify or intimidate “is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community”.

That this is totally Bolt-tailored legislation can be illustrated by just one example. Bolt ran into trouble because the judge found inaccuracies and a lack of good faith in the writings in question. The proposed amendment has a free speech exemption that no longer contains the provisos requiring good faith and accuracy.

The free speech exemption is bald, referring 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”.

In other words, anything goes in the name of free speech, accurate or not.

There is a respectable case to be made that the present act is too wide. If drafters were starting from scratch, with no law on the books, they would probably be better to leave out “offend” and “insult”.

But there is not a clean slate, and changing the status quo has disproportionate dangers. It’s rather like punching a hole in an asbestos shed – a stable if not ideal structure suddenly turns into a hazard, its particles scattered with unpredictable risk. It would be easier and better to leave well alone.

And, apart from keeping faith with an outraged columnist, what is this about? There have not been other troublesome cases; the law has mostly functioned well.

Brandis claims that (unnamed) journalists tell him there is this “chill” of censorship. But who precisely wants to say what that they are not saying now?

One can’t imagine that Abbott himself would want a heightened debate on race. On indigenous affairs in particular, he’d be appalled – not least because it would endanger his push for indigenous recognition in the constitution.

Yet the government’s rhetoric over 18C and related sections of the RDA suggests that free speech is being suppressed.

Meanwhile a government that says it wants “the tone of our society to be elevated and made better” seems to be lauding a bad tone.

Brandis said this week that “people do have a right to be bigots, you know”. He points to the fact that politicians offend and insult each other every day as an example of free speech in the democratic process.

These statements are literally right but they are the low side of free speech. Indeed politicians’ frequent inability to argue with proper civility is what alienates ordinary people.

Brandis is prosecuting the issue with the verve of a barrister but within government he’s warned of the political risks. Abbott is strong on his course: one explanation, apart from his friendship with Bolt, may be his journalist background.

Those worrying the most about the alleged chains on free speech can be sensitive when the exchanges become too robust. Bolt was outraged when outspoken indigenous figure Marcia Langton threw around allegations about him on television. “I was so bruised … that I didn’t go into work on Tuesday. I couldn’t stand any sympathy — which you get only when you’re meant to feel hurt,” he wrote.

He pointed to inaccuracies; after Langton apologised to him he demanded the ABC apologise too (she had made the comments on Q&A).

The Langton-Bolt exchanges contributed little to the public debate, but if you are going to complain there is not enough opportunity for unfettered free speech, it seems more than a little inconsistent to be upset by someone saying offensive things about you. Isn’t the aim supposed to be a world of unrestrained biffo all round?

Listen to the newest Politics Podcast with Michelle Grattan and guest Tony Burke here.

Want to write?

Write an article and join a growing community of more than 184,200 academics and researchers from 4,969 institutions.

Register now