Full Mental Bigot: The Coalition Government's Approach to Racial Vilification and Freedom of Speech in Australia

Rights and freedoms are rarely, if ever, absolute. Nor do they exist in isolation from other, frequently competing, rights and freedoms. A 2013 decision of the European Court of Human Rights considered freedom of expression in a European context, and acknowledged 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 on speech may be appropriate where certain types of speech jeopardise safety. Australian Prime Minister Tony Abbott 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

In Australia, an area where freedom of speech is allegedly competing against the safety of the community concerns sections 18B–18E of the Racial Discrimination Act 1975 (Cth) (‘RDA’), which provide recourse for certain types of offensive, insulting, humiliating and intimidating speech. The following is an analysis of the recently proposed (and subsequently abandoned) amendment to the RDA that would raise the threshold of speech to which the provisions apply, and an evaluation of the likely effectiveness of the proposed reform at achieving its aims.

The RDA was enacted by Parliament to implement the International Convention on the Elimination of All Forms of Racial Discrimination3 (‘ICERD’). Sections 18B–18E were added to the RDA by the Racial Hatred Act 1995 (Cth). The provisions of the current section 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 [which] 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.

Sections 18B, 18D and 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 section 18C is done in connection with their employment.

Under article 4 of ICERD, 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.

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.’4

The provisions of the RDA and ICERD inherently impact upon the freedoms of speech and expression recognised in international law,5 as well as the implied constitutional right to political communication established by the High Court of Australia in 1992.6 The exemptions in section 18D of the RDA lessen this impact substantially but, in its current form, section 18C clearly goes beyond what is required by article 4 of ICERD.

In the early 1990s, three key reports considered federal racial vilification legislation. The Australian Law Reform Commission (‘ALRC’) recommended the introduction of a civil offence of incitement to racist hatred and hostility in 1992.7 The ALRC supported ‘making incitement to racist hatred and hostility unlawful’ but felt ‘that making it a crime … restricts freedom of speech unduly.’8 The 1991 report of the Royal Commission into Aboriginal Deaths in Custody made a similar recommendation that rejected criminal penalties.9

The Human Rights and Equal Opportunity Commission (‘HREOC’, now the Australian Human Rights Commission) also recommended a civil offence for ‘incitement of racial hostility’ with a threshold higher than conduct resulting in ‘hurt feelings or injured sensibilities.’10 The HREOC was keen to avoid a repeat of the situation in New Zealand ‘where legislation produced a host of trivial complaints.’11 The Parliamentary Research Service noted that the Racial Hatred Bill 1994 (Cth) (which created the Racial Hatred Act 1995 (Cth)) established a civil offence with a significantly lower threshold than those suggested in the above reports, and appeared to ignore HREOC’s warnings.12

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 section 18C.13 The impetus for this change in public policy can be traced to Bromberg J’s decision in the 2011 Federal Court case Eatock v Bolt [2011] FCA 1103 (28 September 2011), which was referenced in a 2012 address by the current Attorney-General Senator George Brandis (Deputy Leader of the Opposition in the Senate at the time) to the Australian Liberal Students’ Federation Federal Council.14

The case concerned the publication of two articles written by columnist Andrew Bolt and published in The Herald Sun newspaper, both 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 or appearance were identifying as indigenous Australians for personal, financial and political gain.15 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.16

In March 2014 the Attorney-General announced that the Government’s Party Room had approved legislation to repeal sections 18B–18E of the RDA, and to insert new and more specific provisions.17 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 five weeks for public submissions to be made.18 Although the Government has declined to publish any of the submissions made,19 it was reported by SBS News that the Attorney-General’s Department received more than 5000 submissions.20 When questioned by Greens Senator Penny Wright, the Attorney-General confirmed that the submissions ‘will not be published’, adding that the ‘exercise was not an opinion poll.’21

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,22 and the Government announced that it would not be pursuing the reforms.23 This decision was strongly criticised by some Liberal Party members (several of whom threatened to resign their membership) and others including the Institute of Public Affairs24 and Human Rights Commissioner Tim Wilson.25

Policy Objectives

The title of the exposure draft indicates its aims. At the core its aim is the enhancement or protection of ‘freedom of speech.’ This was to be achieved by narrowing the application of the prohibited conduct to circumstances where actual physical violence or racial hatred occurs or is being encouraged. On 24 March 2014 the Attorney-General was questioned in the Senate by Senator Nova Peris over the amendments; his responses provide 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.’26 The aim was to ensure that the expression of a political opinion was not the subject of litigation.27

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.’28 The RDA was very obviously intended to restrict particular forms of speech,29 but 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 RDA ‘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.’30

From the statements of the Attorney-General, the Government’s policy aim was to firstly improve freedom of speech by permitting the expression of opinions on social, cultural and political matters, and secondly to improve protection from racial vilification and deterrence of incitement to racial hatred.

Improving Freedom of Speech

The policy aim of improving freedom of speech would have been achieved to an extent, but the proposed legislation fell short significantly by dealing with only one type of speech. Litigation involving section 18C is not particularly common, and so the actual impact that the reform would have had on improving freedom of speech is arguably minima: according to the Australian Human Rights Commission ‘less than three per cent of racial hatred complaints proceeded to court’ in 2012–13.31 A comparison of cases involving section 18C reveals that the vast majority of dispute that were settled by tribunals and courts were in fact dismissed. The current impact of section 18C on freedom of speech appears to currently be minimal.

At the University of New South Wales’ 2014 Constitution Day Forum, panellist Kirstie Parker (co-chair of the National Congress for Australia’s First Peoples) asked the Human Rights Commissioner: ‘What is not being said now, that you think should be?’32 The Commissioner concede that there was likely nothing that would add to or encourage meaningful debate that was being prevented by section 18C. Perhaps two reasons why the reform was abandoned is that the Government was unable to offer a persuasive answer to this question, and that the reform appeared to merely be a legislative implementation of the Attorney-General’s view that ‘[p]eople … have a right to be bigots.’33

Certainly the Human Rights Commissioner believes that the Attorney-General’s remark was unhelpful. In criticising the Government’s handling of the reforms, the Commissioner wrote:

Discussion 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.34

The poor framing of the debate helps to highlight a major flaw in the proposed amendments: despite the exposure draft’s title referring to freedom of speech, 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 section 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 repeated 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 and perhaps inconsistent approach to freedom of speech given other policy changes in relation to commercial boycotts and the reporting of national security issues.35 The Pirate Party recommended in its submission to the Attorney-General’s Department that ‘the Government looks into enacting broader freedom of speech legislation’,36 and if that approach had been taken it may have been perceived as less of 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 for improving protection from racial vilification and intimidation are comparable to those contained in section 16 of the South African Constitution (‘SAC’). Section 16(1) of the SAC protects freedom of expression, while section 16(2) contains limitations that exclude, inter alia, incitement of imminent violence and advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm.37

The proposed amendments to the RDA would have operated in the reverse due to the context. Section 16 of the SAC is permissive rather than prohibitive: it states the freedom and then provides explicit exceptions. The RDA is the opposite: rather than state a freedom, it prohibits specified conduct on the basis that any speech in Australia not explicitly prohibited by law is permitted. 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 specifically excludes 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 RDA 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 RDA, 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 place a significant number of people in an unassailable position. Not only would Andrew Bolt 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 would have substantially undermined 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 … .38

As the analysis shows, 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 Abbot, ‘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. 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). 

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

  5. 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. 

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

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

  8. Ibid. 

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

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

  11. Ibid 300. 

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

  13. Jessica Wright, ‘George Brandis to Repeal “Bolt Laws” on Racial Discrimination’, The 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>. 

  14. 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). 

  15. 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>. 

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

  17. 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>. 

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

  19. 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>. 

  20. ‘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>. 

  21. 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>. 

  22. 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>. 

  23. 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>. 

  24. 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>. 

  25. 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>. 

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

  27. Ibid. 

  28. Parliamentary Research Service, above n 12, 11. 

  29. Ibid. 

  30. Ibid. 

  31. 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>. 

  32. Chalmers, above n 21. 

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

  34. 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>. 

  35. Lenore 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>. 

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

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

  38. Pirate Party Australia, above n 36, 4.