The regulation of offensive or insulting language has a long history, including through defamation law and the general laws regulating public behaviour and language. In the context of the current debates on the regulation of language in the Race Discrimination Act 1975 (RDA) it is interesting to note that race and cultural heritage, as a basis for insult, have long been subject to regulation. So, for instance, in 1919 in Orange, NSW, a defendant was ‘convicted’ and fined for using insulting language, after calling someone a ‘German sausage’. There was evidence that the plaintiff was born in the UK to an English mother and his father came from an area that was then part of Denmark. The Magistrate took into account the relevant socio-political circumstances when recording the fine and conviction, saying ‘the words used were very insulting at a period like the present.’
The varying nature of insults and their context, along with a question as to whose standards they should be judged against, is discussed in the Parliamentary Library’s recently issued Research Paper ‘The Attorney-General’s suggested changes to the Racial Discrimination Act’. One of the changes proposed by the Attorney-General would change the standards by which insults are to be evaluated. The law as it stands takes into account the perspective of the racially distinct person being insulted when considering the impact of that insult, whereas the proposed changes would confine judges to considering the ‘ordinary, reasonable’ Australian with no reference to a ‘particular group’. This change and its associated issues is one of four specific changes that would be made under the Attorney’s suggestions which are explored in the paper.
The Attorney-General’s changes have been the subject of much public scrutiny and there are reports he will pursue an amended version of his suggested changes. Senator Nova Peris tied the proposal to more long-lasting change when she wrote to the Prime Minister suggesting that the changes should be abandoned entirely and argued that they have ‘sabotaged meaningful discussions on constitutional recognition’.
Another issue that has arisen during the course of the public debate is the different forms of language regulation that would be unaffected by the Attorney’s current proposal. The Race Discrimination Commissioner has pointed to various constraints on speech which may have a more dramatic or unjustified effect on free speech than the RDA’s provisions. This includes defamation law and various forms of public offensiveness legislation. Warren Mundine has said ‘I just find it funny that we are quite accepting that no-one should swear in public, but it's OK for people to be bigots and I find that a bizarre situation. I can assure people, more people died from bigotry than people died from being swore at.’ Others have pointed out that the failure to reform the law in all areas does not justify a failure to reform it where it needs doing, although this argument leaves open, in turn, the question of whether racial insults are of a peculiarly pernicious sort which require regulation over and above the general bans on ‘offensive’ behaviour.
The Research Paper looks particularly at the distinctions that exist between defamation law and the arrangements in the RDA. After the Eatock v Bolt case went to court there were questions as to why the complainants in that case did not pursue the matter in defamation, which was likely to have been more financially rewarding. The Paper offers possible reasons, some of which, like the broader educative reach of the RDA, have subsequently been confirmed by Professor Larissa Behrendt, who also reflected that the applicants in the case believed Mr Bolt would apologise for his inaccuracies before the matter went to court.
Tim Wilson, the new Human Rights Commissioner, has argued that section 18C of the Act should be repealed in its entirety, as has the Institute of Public Affairs, as their concern is to protect an unfettered freedom of speech. This may also be reflected in the Prime Minister’s response to Senator Peris, which is reported to say that while racial vilification will not be acceptable in Australia, laws which are designed to prohibit racial vilification should not be used to attack ‘legitimate’ freedom of speech.
Mr Wilson also pointed out that two options beyond repeal are open: leaving the provisions untouched or making a modest change.
As documented in the paper, some eminent members of the human rights community have shown an openness to modest change, including George Williams, Gillian Triggs and Mark Leibler. Other, equally eminent, members of the Indigenous community have argued for no change, including Jackie Huggins, Mick Dodson, Noel Pearson, and Pat Dodson, who joined what Sky News called a ‘chorus of concerns’, saying that when one has lived the experience of racism and seen its damage one no longer sees a solution to the problem through what might be referred to as a ‘debating society’.
The results of the Attorney-General’s Department consultation process are yet to be made public, but the Research Paper can now be viewed online.