To the public consultation on the amendments to the Racial Discrimination Act 1975.
Submission from TRUTHOPHOBES to Repeal section 18c of the Racial Discrimination Act 1975.
TRUTHOPHOBES: Exposing the truth about islam;
is an educational and activist group speaking up against political and extremist islam and the left wing political entities, groups and bodies that support these agendas. The group is an action group that abides by the rule of law and endeavours to work with in those boundaries. It does not condone hate speech against individuals.
This submission by the group seeks to address a number of key issues.
RACIAL DISCRIMINATION ACT 1975-SECTION 18C.
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public space; or
(c) is done in the sight or hearing of people who are in a public space.
(3) in this section: 'public space' includes any place to which the public has access as of right or invitation, whether express or implied and whether or not a charge is made for admission to the place.
Freedom of speech in Australia
The Australian Constitution does not explicitly protect freedom of expression. However the High Court has held that the freedom of expression with regards to political discussion is an implied right. This right does not extend more generally to cases where political issues are not involved.
Australia is a signatory to the International Covenant on Civil and Political Rights, though there has been no express implementation of it's principles, which include the right to hold opinions without interference and the right to freedom of expression (Article 19).
Freedom of speech is an essential aspect of the rule of law and ensures there is accountability in government. People must be free to express their opinion about the content of laws, as well as the decisions of government or accountability is greatly reduced. Freedom of expression is a broader term, which incorporates free speech, the right to assemble and other important ways of expressing ideas and opinions such as art, cartoons and other constructs designed to suggest or imply a point of view.
Unfortunately, freedom of speech and what follows from that, specifically, freedom of thought and expression, has been under attack in Australia for a number of years. The attempt by the Gillard government to regulate the media was an attack. Without freedom of the press there can be no freedom of speech.
The Gillard government, in 2012, tried to introduce the so-called Human Rights and Anti-Discrimination Bill. The bill proposed to make it unlawful to 'offend' or 'insult' someone on the basis of his or her 'political opinion'. Such a bill would have placed a muzzle on political debate and freedom of speech across this nation. The bill would have all but eliminated religious freedom, because it proposed that a public expression of religious belief would have been unlawful if someone was offended. The bill would have made it unlawful to debate religion and religious practices if a person found such a debate 'offensive'. Furthermore the bill proposed that individuals accused of unlawful behaviour be declared guilty unless they could prove their innocence, that individuals accused under the legislation would not have an automatic right to legal representation, and that the accused would be required to pay all costs of their defence even if they were found to be innocent. In the wake of public outcry the bill was withdrawn. That such a draconian bill could even have been contemplated in a free and democratic nation such as Australia is alarming.
Once upon a time the political left supported freedom of speech. This is no longer the case. Now the task of defending freedom of speech falls to groups like TRUTHOPHOBES.
So, who gets to decide whether free speech is valuable? The government? A judge? The Australian Human Rights Commission? And who gets to decide that the obtuse and the wilfully ignorant are not allowed to speak? Much is argued about those who are uninformed or badly informed. Their right to an opinion and their right to express that opinion are just as valid as that of those in academia or in a parliament.
Apart from the political left, a number of ethnic community leaders in this country also oppose freedom of speech. a number of ethnic community organisations specifically oppose the removal of Section 18c of the Racial Discrimination Act 1975. Their argument for their opposition is that a prohibition against insulting or offending someone on the basis of their race is necessary in order that Australia ensures that it is a tolerant multicultural society. This argument ignores a number of things. During the period that millions of people migrated to Australia in the 1950's and 60's, Section 18c did not exist. The freedoms that made the country and its society what it is are not a product of Section 18c. Australia's freedoms a legacy of centuries old tradition of liberty. It would be unfortunate indeed if those that have come to this country remove the freedoms that they have benefited from.
There are three main arguments for freedom of speech. The first is democracy. Free expression is an institution that supports democratic deliberation. This fact is highlighted in the High Court of Australia's implied freedom of political communication. Chief Justice Mason said, in part:
Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives...Absent such a freedom of communication, representative government would fail to achieve it's purpose, namely, government by the people through their elected representatives.
The second is the so-called Market of Ideas. This is most commonly associated with John Stuart Mill. In his book On Liberty, Mill argues for a discursive ideal for the freedom of speech. Free speech allows individuals and society at large to interchange, test and confirm ideas. To censor such speech is to stifle this process. To Mill free speech is really free discussion. He wrote:
The particular evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it.
The third argument for freedom of speech is founded in moral autonomy. This places freedom of expression with freedom of conscience. This the argument for freedom of expression defended in Chris Berg's In Defence of Freedom of Speech: from Ancient Greece to Andrew Bolt:
Freedom of speech is a matter of individual agency, or personhood. It is an element of individual autonomy. The right to hold views that may be contrary to those of the majority, or those in positions of power, is seen as quintessentially democratic. As we are all equal, we equally hold that right.
Section 18c of the Racial Discrimination Act 1975 is explicitly intended as a significant weapon in the battle against prejudice by restraining contrary voices. In the second reading speech for the Racial Hatred Bill 1995 Attorney General Michael Lavarch argued that Section 18c ' sends a clear warning to those who might attack the principle of tolerance.' Mill counsels us that a tolerance that is only brought about by legislation is a weak and fragile tolerance.
Australia opposed the introduction of the provision against the incitement of racial hatred in the
International Covenant on Civil and Political Rights, Article 20(2), which was adopted in 1966. Making the case against this provision, which was proposed by a group of nations led by the Soviet Union, the Australian representatives argued that 'people could not be legislated into morality.' . This remains true today. A legislative prohibition on expressions of prejudice will not limit prejudice.
There are limitations that are justifiable, on the freedom of expression. Speech should be prohibited when it crosses the line from expression into action. The leader of a lynch mob speaking in ways to incite the mob to commit crime is an example of those limitations.
The Repeal of Section 18c
To the extent that section 18c covers conduct that 'offends', 'insults' and 'humiliates' it is a restriction on the fundamental human right to freedom of expression. And to the extent that it covers conduct that 'intimidates' it duplicates a range of more appropriate Commonwealth and State laws against intimidation.
Section 18c also creates a legal test based on emotional states. No such test should exist anywhere in the law. Permitting 'hurt feelings' to be the basis of legal claims imposes legal obligations which are impossible to comply with. It asks judges to assess liability based on sentiment.
Section 18c also restricts conduct that intimidates. Intimidator conduct has met a threshold where speech ought to be restricted. Every Australian state and territory has laws against intimidation.
Section 18c should be repealed in full, and these state and territory laws relied on as appropriate protection against intimidation. Retaining intimidation in the content of Section 18c merely duplicates these other laws and makes the Australian legal system more complex.
Mattock v Bolt.
On September 2011, News Corp Australia journalist Andrew Bolt was found to have breached section 18c of the Racial Discrimination Act. The Federal Court case of Eatock v Bolt had considered two articles Bolt had written on the matter of public policy, and which were published in the Herald Sun in 2009.
The judge in the case, Justice Bromberg, also found that Bolt didn't fall within any of the exemptions provided for in Section 18d. Bolt had argued that the 'fair comment' exemption should apply in his case as he was discussing an important issue in the public interest. The exemption did not apply because the judge held that Bolt had used 'gratuitous asides' and a 'mocking' and 'sarcastic' tone in his articles, and that this was sufficient to deny the exemption.
The Bolt case is an example of the dangers of Section 18c. It was used in that case as a political tool to censor a political enemy.
The Bolt case and the problems it highlighted within the law brought forth a number of supporters for change. For example, three of Australia's leading newspapers agreed that Section 18c restricts freedom of speech.
This newspaper has long argued that the Racial Discrimination Act should be amended to rebalance it more towards free speech. Specifically, we believe Section 18c should be abolished. The Age , 21 December 2013.
Gagging people from fairly and legitimately held opinions is censorship. It is a basic denial of freedom of speech...The underlying problem with the ill-considered effects of section 18c is that if someone says they have been offended or humiliated, who is to challenge them That is not what freedom of speech and the right to fairly voice your opinions is about. Herald Sun 12 March 2014.
Australia has no reason to be complacent about freedom of speech. Hundreds of prohibitions govern the things we are not allowed to know. And we rank 28th out of 180 on the World Press Freedom Index. The further erosion of freedom of speech is too high a price to pay for legislation erroneously intended to stifle the rougher edges of our robust debate. Trying to legislate for good manners or to prevent hurt invariably backfires. The government is right to abolish section 18c of the RDA. The Australian, 29 March 2014.
The Exposure Draft
The exposure draft as proposed by the Attorney General is a substantial improvement on the current law. Repealing Section 18c and replacing it with provision as proposed would be a significant step forward. This proposal goes to ensuring what happened to Andrew Bolt will never happen again.
One of the most significant strengths of the Exposure Draft is that it removes the words 'offend', 'insult' and 'humiliate'. These are the words that create the restriction on freedom of speech. The Exposure Draft does however propose to add the word 'vilify'. Under the Exposure Draft the term 'vilify' is taken to mean, 'inciting hatred'. This term is vague and ambiguous and barely raises the threshold of this provision. The government should not proceed with the vilification clause in the Draft. It risks being as significant a restriction on freedom of speech as the current Section 18c. Laws against intimidation are appropriate. Threats of physical violence and incitement to violence should be unlawful. Both state and Commonwealth laws exist to protect individuals against such conduct. The vast majority of these laws apply generally, and the reason for the intimidation is not relevant. Only racial vilification laws require such a racial test to be met. Generally applicable laws against intimidation should be relied upon to appropriately deal with intimidatory conduct.
The exemption provision as it is currently drafted is crucial to the strength of this Exposure Draft. It is broad, and is designed to protect discussion of 'political, social, cultural, religious, artistic, academic or scientific' matters. It is an expansion of the current exemption under section 18d,and is appropriate. Most importantly the exemption provision does not include a requirement that conduct be done 'reasonably' or in 'good faith'. This condition on the application of the exemptions has proved too difficult to meet in many cases, and it has undermined the original rationale behind the existence of the exemption - the protection of free speech.
Truthophobes believe that freedom of speech is fundamental to a free society. While the Exposure Draft proposed by the Attorney General is a welcome move towards restoring the freedom of speech in Australia. It is the considered view of the group that the entire Section 18c be repealed in it's entirety. Tolerant, liberal, open societies like the United States successfully welcome people from all over the world without the need for laws like Section 18c. Canada recently repealed legislation equivalent to Section 18c.
Truthophobes has some reservations with regard to the Exposure Draft, we believe it should proceed unchanged. If any changes are made, in particular to the exemption provision, we believe it will weaken the exemption provision and it should not proceed. Any reform to Section 18c which leaves open the prospect of more cases like Eatock v Bolt would represent a complete failure of the reform project.
No free speech is of course, the hallmark of Fascism. Advocating the revocation of free speech for Fascists is fascism itself, and roughly the same as advocating no voting in a democracy.' A surprising collection of leftists and others would eventually adopt the position represented by threat slogan, most of them with a zeal sufficient to enable them to ignore the inherent contradiction of the position they have taken.
Submitted on behalf of the members of the Facebook group Truthophobes
9th December 2016