Fixing our illiberal race laws
Published in The Australian, March 18, 2014
AUSTRALIAN magistrates have always tended to take a dim view of people who threaten to throw bricks through other people’s windows. Nevertheless, Paul Keating insisted the law should go further.
“Why do we need a racial hatred bill?” John Laws asked the then prime minister in 1994.
“Because basically having people running around saying ‘I’m going to throw a brick through your window or burn your building down because of your race’ should be an offence,” replied Keating. “And that’s what we’re making it.”
It was hardly the most convincing explanation for the racial vilification laws that were later to land a newspaper columnist in the dock.
Importantly, however, in Keating’s view racial vilification was explicitly linked to an act of physical violence to a person or their property.
There was no suggestion that the provisions could be used to redress hurt feelings or against the likes of Andrew Bolt.
Indeed, in the same interview Keating went out of his way to defend the right of Alan Jones — “our friend on the morning program” — to say pretty much what he liked.
“Good on Alan,” the PM said, “even though most of the stuff is middle-of-the-road fascism.”
If the 1995 amendments to the Racial Discrimination Act had reflected these sentiments there would be little reason to repeal it.
Yet Part IIA of the act is not restricted to the incitement of racial violence, as federal court judge Mordy Bromberg found in the Bolt judgment.
The prosecution merely had to demonstrate that Bolt had committed “offensive behaviour based on racial hatred”.
Bromberg presumed Bolt had and that he had not acted in good faith, robbing him of the protection of section 18D.
The Keating government was expressly warned by the then Human Rights and Equal Opportunity commissioner, Irene Moss, not to legislate against the causing of offence.
In her influential 1991 report on HREOC’s National Inquiry on Racist Violence, Moss advised against following the model adopted in New Zealand where section 9C of the Race Relations Act had been “widely used and even abused by individuals complaining of insults or remarks of a relatively trivial nature”.
Acts of racial violence should be treated as “distinctive, serious criminal offences” under the Crimes Act. Civil remedies under the Racial Discrimination Act should be restricted to “the incitement of racial hostility”.
“The inquiry is not talking about protecting hurt feelings or injured sensibilities,” wrote Moss.
“The threshold for prohibited conduct needs to be higher than expressions of mere ill will.”
As it turned out, the proposed amendments to the Crimes Act were a step too far even for the Greens, who sided with the Coalition to block them in the Senate.
“It will create a crime of words,” the Greens’ Christabel Chamarette told the Senate.
“This will take the legislation across a certain threshold into the realm of thought police.”
The changes to the RDA were passed, however, with the shoddily worded section 18C unamended. Thus, for the past 19 years, it has been a civil offence “to offend, insult, humiliate or intimidate” a person or group on the grounds of national identity.
It is a legislative dog’s dinner that Attorney-General George Brandis is now obliged to clear up.
In hindsight the Howard government should have closed the loophole when it came to power. It was well aware of its dangers.
The promising new member for Warringah, for example, delivered a prescient critique of 18C in parliament.
“All that is necessary to create a civil offence under this bill is for someone to have hurt feelings,” Tony Abbott said. “What we need to combat racism is argument, not censorship.”
Two decades later, Abbott has the opportunity to put that right. Brandis’s proposal to amend the act is expected to be discussed in cabinet this week.
Critics from both the Left and Right are predicting that the Prime Minister and his Attorney-General will pull their punches.
They are wrong. They underestimate how deeply Abbott and others of a classical liberal persuasion are offended by the perverse consequences of 18C.
They underestimate the chilling effect the act’s provisions have on those who hold the freedom of expression as a non-negotiable element of a liberal society.
And they underestimate the personal affront Abbott took to the prosecution of Bolt.
It will then be wholly out of character if the Prime Minister squibs this fight or if his Attorney-General does not present for cabinet’s consideration a carefully formulated remedy.
Barring a particularly recalcitrant Senate, 18C will be repealed in its current form.
Three of the four words that were lazily cut and pasted into 18C from legislation outlawing sexual harassment — “offend, insult, humiliate” have to go.
That is not to under-appreciate the slings and arrows of racism but simply to recognise that the law is a crude and ineffective shield against the hurting of feelings.
“Intimidate”, or a word that conveys a similar meaning, is likely to stay. Indeed it should be strengthened to make it a more effective weapon against acts or threats of physical violence, which were the legislation’s original target.
The “good faith” test in 18D must be removed. An opinion is an opinion, whether arrived at in bad faith or in good.
It is difficult to mount a cogent defence of the law as currently worded, but the Race Discrimination Commissioner gave it his best shot in an impenetrable 7000-word speech delivered earlier this month.
Tim Soutphommasane, an academic philosopher by trade, nit-picked his way through the works of Isaiah Berlin, Voltaire, John Stuart Mill and others as he attempted to define “the concept of freedom”. It is a laboured argument irrelevant to the present debate. For Liberals of Abbott’s persuasion, liberty is not just a matter for philosophical discussion but something one feels in one’s gut.
Incredibly, on this fundamental principle, the modern Labor Party finds itself, with Soutphommasane, cheering for the wrong side.
Opposition spokesman for legal affairs Mark Dreyfus told Sky News’ Australian Agenda on Sunday the act was working well. Bolt, he said, had got his just desserts.
Labor’s former finance minister Peter Walsh, one of the sternest critics of Keating’s racial hatred legislation, wrote in 1992: “When I joined the Labor Party 30-odd years ago, I believed it stood for civil liberty — for freedom of expression.
“Was I wrong, or have some people never understood what Mill was on about in On Liberty?”