Why has Section 18C of the Racial Discrimination Act provoked such debate?

There has been a tremendous clamour coming out of Canberra recently around the Racial Discrimination Act and, more particularly, section 18C of that Act.

It currently reads that it is unlawful for a person to do an act “otherwise than in private” (a complicated way to say in public) that would be “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” because the relevant act was “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”.

In layman’s terms it makes it unlawful to insult, humiliate or intimidate someone because of their race. Given that the White Australia policy fell by the wayside some 40-plus years ago and that we are now a diverse and multi-cultural society, it might strike you as odd that such a prohibition is in any way controversial.

Opponents of section 18C in its current form generally cite the catch cry of “free speech” in justifying their opposition. It is said that “free speech” is a more important value than the offended feelings of an individual.

This justification ignores the following section 18D which provides a number of exemptions for things done reasonably and in good faith in art, academic /scientific debate, “fair and accurate” reporting in the public interest, or “fair comment”.

It also elevates the importance of free speech, arguably to a level not found otherwise in our laws. Australia has no bill of rights like the United States, and there is no constitutionally enshrined right to free speech otherwise. Whether or not everyone has a right be to be a bigot as reportedly said by our Attorney General is not legally accurate and probably undesirable from a social harmony perspective.

The latest proposal from the government as reported is that the words “offend”, “insult” and “humiliate” will be replaced with “harass”. This is, apparently, to provide a much more certain test for the Australian Human Rights Commission and the Courts to apply.

“Harass” is a word that it not strictly defined in a legal sense. The Butterworths Legal Dictionary has it as “the act of annoying or obstructing another person by interference, threat, or emotional or physical violence”. The definition also notes that it will “usually occur over a period of time not as an isolated incident”. The Prime Minister is on record as saying the amended section can apply to a single act.

The most famous case dealing with the section involves Andrew Bolt. He was successfully sued for imputations in an article published by him that there were fair skinned aboriginals “who are not genuinely Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal” and that having fair skin “indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person” – Eatock v Bolt [2011] FCA 1103.

Although frequently cited as an example of the failings of the section, it could equally be cited as an example of why no change is needed. The judge in that case found that Mr Bolt did not come within the section 18D exemptions because the article contained “errors of fact, distortions of the truth and inflammatory and provocative language”.

All in all the proposed changes seem unlikely to bring greater certainty. They look like a solution in search of a problem.