Posted 19/03/2014 by Kirsty Magarey
There is currently heated debate over the Racial Discrimination Act 1975 (RDA) and its racial vilification provisions. This debate has been narrowly focussed on one section of the Act, and has sometimes failed to recognise the impact of the following ‘free speech’ provision.
The media’s coverage has focussed almost exclusively on section 18C of the RDA. 18C makes it illegal for someone to do a public act which is ‘reasonably likely, in all the circumstances,’ to ‘offend, insult, humiliate or intimidate’ someone on the basis of their race (‘the vilification section’). There has been less attention paid to section 18D, which provides an overarching freedom of speech limitation on the restrictions of 18C (‘the freedom of speech section’). As an example, the ABC’s recent discussion of ‘Freedom of speech and the RDA’ included a detailed examination of 18C, but made no reference to the freedom of speech section.
Section 18D sets out the perimeters within which section 18C functions. Section 18D overrides 18C any time it applies--providing that 18C does not ‘render unlawful anything said or done reasonably and in good faith’ in the course of what might be summarised as public debate or fair comment, including artistic expressions. This means that one is free to give expression to racist ideas, including those that offend, if it falls within 18D’s fairly broad definitions of reasonable free speech.
Thus in Bropho v Human Rights & Equal Opportunity Commission, for example, a cartoonist created a cartoon about a racial group. There was a complaint, and the cartoon was found to be offensive, but no breach of 18C was found because the section could not be applied. Section 18C was blocked by 18D and the cartoonist was protected in the exercise of their freedom of speech, however offensive to the complainants.
Toben v Jones was another exploration of 18D. There were questions raised about whether holocaust denialism can be undertaken ‘reasonably’. In the event, the court did not need to examine this matter in detail because the defendant’s lack of good faith was established both by his ‘deliberately provocative and inflammatory’ language and his reference to the Jews as ‘murderers’. The judges at all stages of the case concurred that the tenor of the materials was designed to ‘smear’ Jewish people and could not be said to be ‘an honest attempt to put forward a contribution embodying a genuine purpose, or genuine purpose in the public interest, or a fair comment by way of genuine belief.’
In Eatock v Bolt there was a similar application of the law, in that 18D was found not to protect Mr Bolt’s exercise of his speech. This was, again, not so much because of his statements, but because of his use of inaccurate material. The use of these materials was found not to have been 'reasonable and in good faith'. In the ‘normal’ course of events, Mr Bolt’s views on pale-skinned aborigines would have fallen within the bounds of fair comment in 18D, but it was his inclusion of ‘errors of fact [and] distortions of the truth’, along with ‘inflammatory and provocative language’ [para 8] meant that the protections of 18D were not available to him.
It was the judge's decision regarding section 18D that enabled his decision under 18C, and it is thus inadequate to summarise the Eatock v Bolt case as simply a breach of 18C. It was a breach of section 18C, along with an incapacity to utilise the protections of 18D that led to the judge’s finding.
Cases under these sections have often involved intensive statutory interpretation, including a focus on the inter-relationship between the two sections. In particular 18D, with its explicit recognition of the common law right to freedom of speech, has led to a restrictive interpretation of the words ‘offend, insult, humiliate or intimidate’ in 18C. Thus it is important, in considering the RDA, to have regard to both sections.
The courts have also had a close regard to the purpose and history of the provisions, and the parliamentary consideration that took place on their introduction. Much of this background is summarised by the Race Discrimination Commissioner, who has given a history of these provisions in ‘Two Freedoms: Freedom of expression and freedom from racial vilification’. In summary, sections 18C and 18D were introduced into the Act in response to a number of reports on racial violence, including the National Inquiry into Racist Violence, the Royal Commission into Aboriginal Deaths in Custody and the Law Reform Commission’s Report, Multiculturalism and the Law, as well as international treaty obligations, including the International Convention on the Elimination of All Forms of Racial Discrimination. Further background on these topics is available from both the Human Rights Commission’s website and the Parliamentary Library.