Let me open this by saying that I like the idea of free speech. It is a good and reasonable thing that people do have the right to disseminate and publish their ideas; no matter how unhinged they happen to be. Free speech, which should also include the right to assembly and to petition the Government for a redress of grievances, is the sign of a functioning and healthy democracy.
Hand in hand with the idea of the right to free speech, comes the right to be judged upon that same speech which has disseminated and published.
New Senator Malcolm Roberts, I can forgive for looking clumsy when it comes to issues such as free speech but as someone who has the responsibility of making laws for this country, I will exercise my right to judge what he has said.
We need people to speak up freely and deliver what they really believe and yet they get slammed for that, I'm looking at [section] 18C under the Racial Discrimination Act — that needs to be addressed because that is curbing free speech.
When we have free speech curbed, it means we don't talk about the real issues — tax, Islam, terrorism, the economy.
- Senator Malcolm Roberts - as reported by ABC News, 4th Aug 2016.
Personally I think that this sounds nuttier than a packed of mixed nuts owned by Nat Nutt. I agree that having free speech curbed means we don't talk about things like tax, Islam, terrorism, the economy and whatnot but none of these things are even remotely connected with Section 18C of the Racial Discrimination Act.
To remind you, Section 18C of the Racial Discrimination Act provides that:
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 is 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.
- Section 18C, Racial Discrimination Act 1975
I think that's fair enough. The explanatory note says Subsection (1) certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. I think that's also fair enough.
Section 18C of the Racial Discrimination Act provides a solidifed pathway to seek remedy if someone has acted, disseminated or published something whilst exercising their right to free speech. There have in the past, been helpful opinions on what free speech is and is not at law as well:
"'Free' in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law."
- James vs Commonwealth of Australia 1936¹
That's a very interesting and important turn of phrase, that: "governed by law". James v Commonwealth eloquently says something which is common to all of legislation; that by its very existence all legislation imposes limits to absolute freedom.
Common Law which had been refined for about 500 years to that point, had long since come to the conclusion that not only did the law apply across all of the realm (hence the reason why it was called "Common") but the thirty years which immediately preceded it had also demonstrated that the law applied even to the highest office in the realm - the king. The Bill Of Rights Act which arrived in English Law in 1689, had come after the execution of King Charles I, the English Civil War, the period of the Commonwealth which was rule by Oliver Cromwell and then his brother Richard as king in all but name, the restoration and then the so-called Glorious Revolution in which William of Orange was installed as king.
Consider the right to bear arms as contained within the Bill Of Rights Act 1689:
That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law.
- Section 7, Bill Of Rights Act 1689
Again we see the phrase "and as allowed by law" but it's worth remembering what sort of allowances that the law made at the time and for whom. There are quirks of law which make it allowable for the universities to defend themselves with swords for instance. Estate owners in the 1680s still faced the prospect of wild foxes destroying their livestock. The idea of modern policing wouldn't arrive for another century and a half; so the military was the de facto and default police force. It would have been entirely inappropriate even in 1689 for wide swathes of the population of the cities like London to be armed with guns and so regulations with regards firearms followed reasonably quickly.
The people who framed the Bill Of Rights Act in 1688, would have been well aware of the chaos which had rocked England to the core and so the law was designed to act as a hedge against future chaos.
The Bill of Rights which was tacked onto the end of the United States Constitution, had faced opposition to its existence before it had been approved. The right to bear arms as currently worshipped in the Second Amendment says the following:
Thanks to 227 years of manipulation by the US Supreme Court and various lobby groups, the words "well regulated" now only seem to be applied to a militia (which doesn't exist) and any attempts to impose any sort of sane regulations, even in the wake of cases like 20 school children being destroyed, or 50 people being shot to pieces and destroyed at a nightclub, are quashed in the name of freedom.
Intriguingly, one of the most influential framers of the United States Constitution, Thomas Jefferson wrote to James Madison that:
But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.
- Thomas Jefferson to James Madison, Popular Basis of Political Authority, 6th Sep 1789
This indicates that even they thought that law should change to reflect its circumstances. Having said that, Jefferson also write that:
Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.
- Thomas Jefferson, Letter to William Stephens Smith, 13th Nov 1787
It's comforting to know that the blood of those 20 children who were destroyed at Sandy Hook, was a just price to pay for people's freedom. I hope that people like the NRA remember that they equate the blood of children with natural manure.
18C exists as a hedge against injury which is caused by what people have published. The Bolt case, which is perhaps the most famous case brought under the legislation illustrates the need for 18C's existence rather pointedly.
Broadly speaking, the nature of her complaint is that the articles conveyed offensive messages about fair-skinned Aboriginal people, by saying that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could access benefits that are available to Aboriginal people. Ms Eatock wants the law to address this conduct. She wants declarations and injunctions and an apology from the Herald & Weekly Times.
- Eatock v Bolt, Federal Court of Australia (2011)²
As far as I can make out, the only reason why Section 18C ever rose to fame at all, was because of the Bolt case. Precisely because Andrew Bolt was an employee of The Herald and Weekly Times Limited and he lost, it meant that The Herald and Weekly Times Limited, the rest of News Corporation, their friends at the Institute of Public Affairs and the Liberal Party, had a giant cuddle puddle pile on. It is precisely this example which illustrates why Section 18C needs to exist.
Bills of Rights are about a population asserting a desire not to suffer injury because power has been exercised by the powerful. The hope of a bill of rights is that by giving power to the previously powerless, that a new balance is established. Legislation though, is almost always about either restricting the power of the powerful or regulating society into some sort of manageable order.
Courts exist to interpret law and decide what is fair and just based upon their interpretation of that law; be that the law of equity, common law, statute law or constitutional law. Courts themselves are bound by law and employ tests to prove the worthiness of the cases that are set before them.
If you're having your name dragged across a newspaper and media network as large as News Corporation's, then it's kind of obvious what sort of injury is caused to someone's reputation as a result of that.
The esteem in which he is held, or the goodwill entertained towards him, or the confidence reposed in him by other persons, whether in respect of his personal character, his private or domestic life, his public, social, professional, or business qualifications, qualities, competence, dealings, conduct, or status, or his financial credit ...
A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.
- Radio 2UE Sydney Pty Ltd v Chesterton, High Court of Australia (2009)
When it's a matter for the courts to test and find out, to what material degree that the injury occurred and whether or nor a remedy should be instructed. This is a useful thing to look at because it admits in principle that injury doesn't have to be physical and spells out the kind of tests which are used in such cases.
If someone advocates for the removal of any piece of legislation, immediately I begin to question why. If somebody wants something then what is my motive driving the desire? It's all very well to yell "free speech" but when the ability to publish anything is so widespread, then it is deeply dishonest to claim that it is merely about a right to be heard. If you are specifically talking about a desire to remove a hedge on the ability to publish material which is racist or to remove all possible remedies to the injury caused by the publication of racist material, then the only conclusion that I can draw is that that person either wants to be openly racist and cause harm and injury or the just don't want to be held responsible for any injury that they have caused as a result of clumsy negligence.
When a political group like One Nation spruiks its desire to remove the hedges to the remedies of racist material, then what other conclusion should I draw other than they have a desire to be racist? When Pauline Hanson stood up on the floor of the Parliament in 1996 and declared that we were in danger of being swamped by Asians, then that indicates to me that at least then, that conclusion was likely to be true. I note that the new designated target has moved on to Islam. The problem is that Islam as a religion, not only isn't covered under the proivisions of the Racial Discrimination Act, Section 116 of the Consitution prohibits the Commonwealth from imposing any religious observance, or for prohibiting the free exercise of any religion.
In the words of Senator Malcolm Roberts, we do need people to speak up freely and deliver what they really believe. They also need to be slammed for that if it happens to be just plain stupid, or in this case with regards Section 18C, completely irrelevant to the legislation.