Rights and freedoms are rarely, if ever, absolute. Nor do they exist in isolation from other, frequently competing, rights and freedoms. The 2013 decision of the European Court of Human Rights in Neij v Sweden considered freedom of expression in a European context and acknowledges that there are circumstances in which freedom of speech is necessarily restricted:

Article 10 [of the European Convention on Human Rights] guarantees the right to impart information and the right of the public to receive it … The Court considers that the actions taken by the applicants are afforded protection under Article 10 §1 of the Convention and, consequently, the applicants’ convictions interfered with their right to freedom of expression. Such interference breaches Article 10 unless it was ‘prescribed by law’, pursued one or more legitimate aims referred to in Article 10 §2 and was ‘necessary in a democratic society to attain such aim or aims.1

Restrictions of speech may be appropriate where certain types of speech jeopardise safety. The Prime Minister of Australia stated in a recent speech to the House of Representatives that ‘the most basic freedom of all is the freedom to walk the streets unharmed and to sleep safe in our beds at night.’2

One area involving the need to balance freedom of speech against the safety of the community and its members concerns ss 18B–18E of the Racial Discrimination Act 1975 (Cth) (‘Racial Discrimination Act’) which provide recourse for certain types of offensive, insulting, humiliating and intimidating speech. This essay analyses the recently proposed (and subsequently abandoned) amendment to the Racial Discrimination Act that would raise the threshold of speech to which the provisions apply, and evaluates the effectiveness of the reform at achieving its aims.

The Racial Discrimination Act was enacted by Parliament in reliance upon its ‘external affairs’ power3 to implement the International Convention of the Elimination of all Forms of Racial Discrimination4 (‘Racial Discrimination Convention’). Sections 18B–18E were added to the Racial Discrimination Act by the Racial Hatred Act 1995 (Cth). The provisions of the current s 18C make it ‘unlawful for a person to do an act [that] is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and … 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.’5

Sections 18B and 18D–18E add further provisions: importantly, section 18D contains exemptions for ‘anything said or done reasonably and in good faith’ in certain artistic, academic, scientific, public interest and journalistic contexts. Section 18E contains vicarious liability provisions and places some liability on employers and principals for the actions of their employees and agents where an act contrary to s 18C is done in connection with their employment.

Under Racial Discrimination Convention art 4, Australia is obliged to provide an offence prohibiting ‘all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof’.6 The International Covenant on Civil and Political Rights also mandates that ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’7

This inherently impacts upon the freedoms of speech and expression recognised in international law8 as well as the implied constitutional right to political communication established by the High Court in 1992.9 The exemptions in s 18D lessen this impact substantially, but, in its current form, s 18C clearly goes beyond what is required by Racial Discrimination Convention art 4.

In the early 1990s, three key reports considered federal racial vilification legislation. The Australian Law Reform Commission recommended the introduction of a civil offence of incitement to racist hatred and hostility in 1992.10 The Commission supported ‘making incitement to racist hatred and hostility unlawful [but] that making it a crime … restricts freedom of speech unduly.’11 The 1991 Report of the Royal Commission into Aboriginal Deaths in Custody made a similar recommendation that rejected the notion of criminal penalties.12

The Human Rights and Equal Opportunity Commission (‘HREOC’) also recommended a civil offence for ‘incitement of racial hostility’ with a threshold higher than conduct resulting in ‘hurt feelings or injured sensibilities.’13 The HREOC was keen to avoid a repeat of the situation in New Zealand ‘where legislation produced a host of trivial complaints.’14 The Parliamentary Research Service noted that the Racial Hatred Bill 1994 (Cth) — the bill that created the Racial Hatred Act 1995 (Cth) — established a civil offence with a significantly lower threshold than those suggested in the reports above, and included ‘hurt feelings or injured sensibilities’ that the HREOC warned against.15

Public policy context and process

Prominent on the current government’s agenda prior to and following the 2013 Federal Election was the specific repeal of s 18C.16 The impetus for this change in public policy has been traced to the 2011 Federal Court decision by Bromberg J in Eatock v Bolt17 referenced by the current Attorney-General Senator George Brandis (Deputy Leader of the Opposition in the Senate at the time) in a 2012 address to the Australian Liberal Students’ Federation Federal Council.18

The case concerned the publication of two articles written by columnist Andrew Bolt and published in The Herald Sun newspaper in print and online. The articles — ‘It’s so hip to be black’ and ‘White is the new black’ — suggested that individuals of predominantly European ancestry identified as Aborigines for personal, financial and political gain, despite not being indigenous in appearance.19 Bromberg J was ‘satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles [and] that each of Mr Bolt and the Herald & Weekly Times engaged in conduct which contravened section 18C’.20

In March 2014 the Attorney-General announced that the Government’s Party Room had approved legislation to repeal ss 18B–18E and insert a new, more specific, section.21 An exposure draft of the Freedom of Speech (Repeal of s 18C) Bill 2014 was released for public consideration the same day, with a window of approximately one month (25 March–30 April 2014) for public submissions to be made.22 Although the Government has not published any of the submissions made,23 SBS News reported that the Attorney-General Department received more than 5000 submissions.24 When questioned by Senator Penny Wright, the Attorney-General stated that the submissions ‘will not be published’ and that the ‘exercise was not an opinion poll.’25

Despite this, many organisations and individuals have chosen to publish their submissions independently. Fairfax Media reported that 76% of 4100 submissions opposed the proposed changes,26 and the Government announced it would not be pursuing the reforms.27 This decision was strongly criticised by Liberal Party members, some of whom threatened to resign their membership, and others including the Institute of Public Affairs28 and the Human Rights Commissioner, Tim Wilson.29

Policy objectives

The title of the exposure draft gives a strong indication of its aims. At the core of the issue is enhancing or protecting ‘freedom of speech.’ This was to be achieved by narrowing the application of the prohibition to circumstances where actual physical violence or racial hatred occurs or is encouraged. On 24 March 2014 the Attorney-General was questioned in the Senate by Senator Nova Peris over the amendments. His responses provide significant insight into the specific purpose of the amendments.

The Attorney-General stated that it was ‘the intention of the government to remove from the Racial Discrimination Act those provisions that enabled the columnist Andrew Bolt to be taken to the Federal Court merely because he expressed an opinion about a social or political matter.’30 The aim was to ensure that the expression of a political opinion was not the subject of litigation.31

It was noted by the Parliamentary Research Service in 1994 that the ‘problem with using terms such as “offend”, “insult” and “humiliate” is that they are largely subjective in nature.’32 The Racial Hatred Act 1995 (Cth) was very obviously intended to restrict particular forms of speech.33 In the aftermath of Eatock v Bolt it is clear that it was the current Government’s policy aim to improve freedom of speech by removing those largely subjective terms. The Attorney-General expressed his view (and that of the Government’s) that the Racial Discrimination Act ‘goes about the problem of dealing with racial vilification in the wrong way’, being through political censorship, and drew attention to the fact that ‘no law of the Commonwealth of Australia … prohibits racial vilification [or] incitement to racial hatred. … [S]ection 18C, in its current form, does not prohibit racial vilification.’34

Thus, from the statements of the Attorney-General, the policy change aimed to improve

  1. freedom of speech by permitting the expression of opinions on social, cultural and political matters, and
  2. protection from racial vilification and deterrence of incitement to racial hatred.

These policy objectives will be examined individually.

Improving freedom of speech

This policy aim is achieved to an extent, however it falls short significantly by dealing with a very specific type of speech. Litigation involving s 18C is not particularly common and so the actual impact the reform would have on free speech is arguably minimal: according to the Australian Human Rights Commission, ‘less than three per cent of racial hatred complaints proceeded to court’ in 2012–2013.35 A comparison of cases involving s 18C reveals that the vast majority of disputes that were settled by tribunals and courts were in fact dismissed. The current impact of s 18C on freedom of speech would therefore appear minimal.

At the University of New South Wales’ ‘Say what you like: a constitutional right?’ Constitution Day Forum 2014, the Human Rights Commissioner was asked by fellow panellist Kirstie Parker (co-chair of the National Congress for Australia’s First Peoples): ‘What is not being said now, that you think should be?’36 The Commissioner conceded that there was likely nothing that would add to or encourage meaningful debate being prevented by s 18C. Perhaps one of the reasons why the reform was abandoned is that it appeared to merely be a legislative implementation of of the Attorney-General’s view that ‘[p]eople … have a right to be bigots.’37

Certainly this is the belief held by the Human Rights Commissioner, who criticised the Government’s handling of the reforms. The Commissioner wrote that ‘[d]iscussion about the need for reform did not start well. The argument that people have “a right to be a bigot” was neither the justification for reforming the law, nor is it accurate. … The justification for reforming the Racial Discrimination Act is because it encroaches too heavily on free speech.’38

The poor framing of the debate helps to highlight a major flaw: despite the exposure draft being named the ‘Freedom of Speech … Bill’ it would only have improved freedom of speech in a very narrow area of public discussion. The continued references to Eatock v Bolt as the foremost case involving s 18C made it clear that this reform was calculated to lift a restriction on a very particular form of speech — effectively ‘bigoted’ speech. The reforms would not be permissive or protective of expression or speech generally.

The policy change would have prevented a repeat of Eatock v Bolt, but would not have provided any substantial protections, leaving Australia with a patchwork approach to freedom of speech. Certainly it can be demonstrated that the current Government takes an unpredictable approach to freedom of speech given other policy changes in relation to commercial boycotts and the reporting of national security issues.39 The Pirate Party recommended in its submission that ‘the Government looks into enacting broader freedom of speech legislation’,40 and if that approach had been take it may have been perceived as less a protection of the right to be a bigot. Far-reaching reforms would have better achieved this policy objective, both practically and in terms of public approval.

Improving protection from racial vilification and intimidation

The exposure draft’s provisions are comparable to those contained in s 16 of the South African Constitution. Section 16(1) protects freedom of expression, while s 16(2) contains limitations that exclude propaganda for war, incitement of imminent violence and advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutions incitement to cause harm.41

The proposed amendments to the Racial Discrimination Act would have operated in reverse to this due to context. Section 16 is found in ch 2 of the South African Constitution, which is titled ‘Bill of Rights.’ As such it is permissive rather than prohibitive: it grants non-exhaustive freedoms and then provides explicit exceptions for circumstances to which those freedoms do not extend. The Racial Discrimination Act is currently, and would have remained, prohibitive. This fundamental difference highlights the changes’ major flaw in relation to improving protection from racial vilification and deterring the incitement of racial hatred.

While the South African provision confers a right, it excludes specifically the advocacy of hate based, inter alia, on race and ethnicity that constitutes incitement to cause harm. By contrast, the Australian Government’s proposed amendments to the Racial Discrimination Act would in fact permit speech that vilifies and intimidates in a wide range of circumstances. Although it is difficult to understand why vilification and intimidation should be permitted in artistic, academic, scientific or journalistic contexts, the Racial Discrimination Act, if the amendments had been adopted, would have protected speech to that effect.

In addition, it is not readily apparent that there is a situation in which vilification and intimidation would be in the public interest. Superficially the amendments would appear to provide an effective means of reducing race-based vilification and intimidation. In practice, however, they would have placed a significant number of people in an unassailable position. Not only would Andrew Bolt, for example, be permitted to be offensive, he would also be permitted to incite racial hatred against fair-skinned Aborigines and even publish material that would place individuals and groups in a position of fear for their safety and property. This substantially undermines the effectiveness of the reforms.

Conclusion

The raising of the threshold from ‘offend, humiliate, insult or intimidate’ to ‘vilify or intimidate’ would improve freedom of speech in Australia, but only in a very narrow area. The reforms did not take an holistic approach to protecting freedom of speech, and this is likely a cause for the widespread public opposition. In regard to improving protection from racial vilification and intimidation, the reforms would have partially achieved this aim, but been seriously undermined by the exceptions provided. The Pirate Party could not ‘see a justification for why vilification or intimidation would be acceptable in the “public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.” … It would seem there are few activities that fall outside those categories[.]’42 As the analysis demonstrates, the proposed reforms would have been ineffective at achieving their aims to any significant degree.




  1. Neij v Sweden (European Court of Human Rights, Chamber, Application No 40397/12, 19 February 2013) 9–10.

  2. Tony Abbott, ‘National security statement’ (Speech delivered to the House of Representatives, Canberra, 22 September 2014) <http://www.smh.com.au/federal-politics/political-news/tony-abbott- national-security-statement-to-parliament-20140922-10kccx.html>.

  3. Australian Constitution s 51(xxix). See also Koowarta v Bjelke-Petersen (1982) 153 CLR 168.

  4. International Convention on the Elimination of all Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

  5. Racial Discrimination Act 1975 (Cth) s 18C(1).

  6. International Convention on the Elimination of all Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) art 4(a).

  7. International Convenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 20.

  8. Ibid art 19; Universal Declaration on Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) art 19.

  9. See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

  10. Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) [7.47].

  11. Ibid.

  12. Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 4, 74–75.

  13. Human Rights and Equal Opportunity Commission, Report of National Inquiry into Racist Violence (1991) 299.

  14. Ibid 300.

  15. Parliament Research Service, Department of the Parliamentary Library (Cth), Racial Hatred Bill 1994 Digest, 14 November 1994, 4.

  16. Jessica Wright, ‘George Brandis to repeal “Bolt laws” on racial discrimination’, They Sydney Morning Herald (online), 8 November 2013 <http://www.smh.com.au/federal-politics/political-news/george-brandis-to-repeal-bolt-laws-on-racial-discrimination-20131108-2x50p.html>.

  17. Eatock v Bolt [2011] FCA 1103 (28 September 2011).

  18. George Brandis, ‘The Threats to Freedom of Speech in Gillard’s Australia’ (Speech delivered to the Australian Liberal Students Federation Federal Council, University of Sydney, 5 July 2012) quoted in Commonwealth, Parliamentary Debates, Senate, 24 March 2014, 1797 (Nova Peris).

  19. Andrew Bolt, ‘It’s so hip to be black’, The Herald Sun (Melbourne), 15 April 2009; Andrew Bolt, ‘White fellas in the black’, The Herald Sun (online), 21 August 2009 <http://www.heraldsun.com.au/news/opinion/white-fellas-in-the-black/story-e6frfifo-1225764532947?nk=0f84412c77dc1582d3b0b4e541b6b074>.

  20. Eatock v Bolt [2011] FCA 1103 (28 September 2011) [16]–[27].

  21. Attorney-General’s Office (Cth), ‘Racial Discrimination Act’ (Media Release, 25 March 2014) <http://www.attorneygeneral.gov.au/Mediareleases/Pages/2014/First%20Quarter/25March2014-RacialDiscriminationAct.aspx>.

  22. Attorney-General’s Department (Cth), Amendments to the Racial Discrimination Act 1975 <http://www.ag.gov.au/consultations/Pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx>.

  23. Ibid; Max Chalmers and Chris Graham, ‘Brandis Blocks Public Airing Of Free Speech Submissions’, New Matilda (online), 20 June 2014 <https://newmatilda.com/2014/06/20/brandis-blocks-public-airing-free-speech-submissions>.

  24. ‘Government “rethink” of race laws change cautiously welcomed’, SBS News (online), 28 May 2014 <http://www.sbs.com.au/news/article/2014/05/28/government-rethink-race-law-changes-cautiously-welcomed>.

  25. Max Chalmers, ‘Bigotted Buddies Might Be Why Brandis Pushes Silence On 18c’, New Matilda (online), 21 June 2014 <https://newmatilda.com/2014/06/21/bigotted-buddies-might-be-why-brandis-pushes-silence-18c>.

  26. Heath Aston, ‘Few back change to race laws’, The Sydney Morning Herald (online), 1 August 2014 <http://www.smh.com.au/federal-politics/political-news/few-back-change-to-race-laws-20140731-3cx9a.html>.

  27. Heath Aston, ‘Tony Abbott dumps controversial changes to 18C racial discrimination laws’, The Sydney Morning Herald (online), 5 August 2014 <http://www.smh.com.au/federal-politics/political-news/tony-abbott-dumps-controversial-changes-to-18c-racial-discrimination-laws-20140805-3d65l.html>.

  28. Latika Bourke, ‘Liberal Party members threaten to quit party after Tony Abbott’s backdown on changes to race hate laws, says Institute of Public Affairs’, The Sydney Morning Herald (online), 6 August 2014 <http://www.smh.com.au/federal-politics/political-news/liberal-party-members-threaten-to-quit-party-after-tony-abbotts-backdown-on-changes-to-race-hate-laws-says-institute-of-public-affairs-20140806-3d8i7.html>; Latika Bourke, ‘IPA supporters pour in cash to fund anti-Abbott ad as race discrimination fury boils over’, The Sydney Morning Herald (online), 7 August 2014 <http://www.smh.com.au/federal-politics/political-news/ipa-supporters-pour-in-cash-to-fund-antiabbott-ad-as-race-discrimination-act-fury-boils-over-20140807-3d9r3.html>.

  29. Emma Griffiths, ‘Government backtracks on Racial Discrimination Act 18C changes; pushes ahead with tough security laws’, ABC News (online), 6 August 2014 <http://www.abc.net.au/news/2014-08-05/government-backtracks-on-racial-discrimination-act-changes/5650030>.

  30. Commonwealth, Parliamentary Debates, Senate, 24 March 2014, 1797 (George Brandis).

  31. Ibid.

  32. Parliamentary Research Service, Department of the Parliamentary Library (Cth), Racial Hatred Bill 1994 Digest, 14 November 1994, 11.

  33. Ibid 13.

  34. Ibid.

  35. Australian Human Rights Commission, At a glance: Racial vilification under sections 18C and 18D of the Racial Discrimination Act 1975 (Cth) (12 December 2013) <https://www.humanrights.gov.au/glance-racial-vilification-under-sections-18c-and-18d-racial-discrimination-act-1975-cth>.

  36. Chalmers, above n 25.

  37. Commonwealth, Parliamentary Debates, Senate, 24 March 2014, 1797 (George Brandis).

  38. Tim Wilson, ‘Opponents speak with mixed voices’, The Australian (online), 9 August 2014 <http://www.theaustralian.com.au/opinion/opponents-speak-with-mixed-voices/story-e6frg6zo-1227018398491>.

  39. Lenor Taylor, ‘Australian government may ban environmental boycotts’, The Guardian (online), 3 April 2014 <http://www.theguardian.com/environment/2014/apr/02/coalition-review-of-consumer-laws-may-ban-environmental-boycotts>; Paul Farrell and Daniel Hurst, ‘Journalists will face jail over spy leaks under new security laws’, The Guardian (online), 16 July 2014 <http://www.theguardian.com/world/2014/jul/16/journalists-face-jail-leaks-security-laws>.

  40. Pirate Party Australia, Submission to Attorney-General’s Department (Cth), Public Consultation on amendments to the Racial Discrimination Act 1975, 30 April 2014, 1.

  41. Constitution of the Republic of South Africa Act 1996 (South Africa) ch 2 s 16.

  42. Pirate Party Australia, above n 40, 4.