Any changes to the Racial Discrimination Act must address significant inconsistencies with human rights.
The deadline for feedback on the government’s exposure draft of amendments to the act closes today. Set against the background of the worthy aspiration of tackling racism, the current law makes it unlawful to speak if it is reasonably likely to “insult, offend” or “humiliate”.
Even if such speech is deeply unacceptable, making it unlawful significantly restricts free speech.
Many have argued that these words have been interpreted by the courts at a higher bar than the law establishes and does not cover “mere slights”.
But that is an argument for change on the basis courts may be reading it down in recognition of just how broadly the law can be used to limit free expression.
Even then it is not always the case, as demonstrated by the case against News Corp columnist Andrew Bolt. That case established just how broadly the law can be interpreted with consequences for the free speech of every Australian. That’s why reasonable voices accept change can be made.
Recently, the head of the Prime Minister’s indigenous council, Warren Mundine, criticised the proposed changes, but recognised “there is no doubt we need to amend the act and make sure it’s focused”.
The NSW Rabbinical Council acknowledged the laws make it hard for rabbis to “get up and make a pronouncement on certain moral issues (because they) … might insult (someone)”.
Similarly, Jewish community leader Mark Leibler has said “there is a possibility of working out a solution which will be a sensible compromise” while arguing for minimal change.
The question is not if the law should be changed, but how. Any revised proposal needs to keep two fundamental components of the current proposal on the table. First, it must remove restrictions on speech that may “insult, offend” or “humiliate”.
Human rights are about people protecting the individual’s right to own their own lives and exercise their faculties to pursue their opportunities and enterprise. Restrictions on free speech can exist when its exercise impinges on others’ human rights, such as explicit incitement to violence, but deference should always be towards the most limited form of restriction.
Restricting speech that offends, insults or humiliates simply doesn’t cut it. Humiliation can unintentionally occur for numerous culturally based reasons, and mockery that can lead to humiliation can be the basis of humour. The importance of keeping expression free and open on matters of race is particularly important considering the powers granted to the commonwealth parliament.
Under the Constitution, the parliament has the power to make race-specific laws. If the parliament can legislate on it, we must be free to talk about it.
Even from an international law approach, the relevant sections of the International Covenant on Civil and Political Rights argue only for restrictions on “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.
Depending on the final drafting, the government’s proposal to include a targeted definition of vilification is likely to be consistent with both freer speech and international human rights law.
Second, to preserve equality before the law, the test of whether speech can be limited should be based on a reasonable member of the Australian community. The current interpretation is based on the attitudes of the group affected by the speech. Their attitudes can vary depending on whether a person is a part of that group, or not.
Subjective attitudes operate regularly within social conventions and norms. For example, it is understood that gay and lesbian people can use the term “queer” to describe themselves, but it is socially unacceptable for others to use this traditionally derogatory term.
The same principles cannot apply in law without undermining equality before the law.
It is unjust that two persons, standing side-by-side can be acting in precisely the same fashion, but because one is part of the group that their actions refer to it is legal, and for others it is not because they come from outside that group.
These problems are exacerbated by the “insult” and “offend” low bar. It is corrected in the current proposal, but should adopt the language included in other anti-discrimination laws to have “regard to all the circumstances” so contextually relevant details can be considered. Some have argued that exemptions protect free speech and solve the problems with the law. But exemptions are an admission that free speech is being violated and courts need an “out”.
The current law requires that speech be exercised reasonably and in good faith. But speech cannot be restricted simply because it is unreasonable. Equally, good faith requirements are unjustified because public debate, rightly or wrongly, is often conducted with degrees of bad faith to convince others of the merit of the speaker’s argument and the weaknesses of their opponent.
If the law only restricts speech when it conflicts with other human rights there is minimal need for exemptions because the law will be set at the right level.