S 18C of the Racial Discrimination Act: Dispelling Some Myths
https://www.humanrights.gov.au/our-work/race-discrimination/projects/current
When it comes to the idea of freedom of speech in Australia, few provisions give rise to more controversy than s 18C of the Racial Discrimination Act 1975 (Cth); a law that prohibits expression likely to ‘offend’ or ‘insult’ where done because of ‘race, colour, national or ethnic origin’.[1]
On the one hand, the law has been positively regarded as providing protection for minorities and vulnerable members of society from the harms of hate speech. However, on the other hand the same law has been criticised as intruding on core civil liberty and the right to reasonably express opinion, particularly as contrary to the view that offensive speech should be countered by open and public debate, and not censorship.[2] However, it is submitted that the law is not in this state of conflict.
Whilst on its face it is conceded that the law could be most simply construed as overly subjective, over broad, and allowing for individuals to be penalised for nothing more than causing hurt feelings. Though when tested in our courts it is clear that the law only targets a sufficiently serious and objective level of harm, and as a result is consistent with our ideas of freedom of speech in a liberal democracy.
Particularly, the Federal Court has variously considered the test created under s 18C and the kind of content that it prohibits,[3] and as a result the test of harm under the law has been concluded to be objective, meaning not assessed from a plaintiff’s standpoint, but considered in the context of what is reasonable.[4]
Further, in applying s 18C the Federal Court has read down the meaning of what constitutes ‘offend’ or ‘insult’. In Bropho v HREOC French J (as his Honour was then) read s 18C as only applying to serious effects,[5] reaching a similar conclusion to Keifel J in Creek v Cairns Post,[6] determining that the law is not concerned with ‘mere slights’.[7]
Supporting these determinations of our courts, it is also clear that reserving the application of s 18C for only objectively serious effects is a correct approach that accords with both statutory interpretation,[8] and also another protection contained within our law; being the common law principle of legality.[9]
First, in the second reading speech providing for s 18C the Attorney General asserted that the intention of the Racial Discrimination Act was to ‘…close a gap in the legal protection available to the victims of extreme racist behavior’,[10] and specifically that s 18C ‘deals with serious incidents only’ (emphasis added).[11]
Second, the principle of legality in our common law holds that in the absence of clear words or necessary implication courts must not interpret legislation as departing from our fundamental freedoms.[12] Freedom of speech is recognised as one of these fundamental freedoms, such that in interpreting any law that may incur upon free speech requires the courts to apply any available construction that minimizes its impact.[13] Again, this means that the courts are bound by a common law duty to read down s 18C to only target seriously harmful speech.
In summary, freedom of speech is vital to the functioning of a democratic society. And eliminating speech merely because any particular individual may take offence is a bridge too far. However, the Racial Discrimination Act is intended to deal with extreme racist behavior. This behavior, and particularly when it takes the form of speech, can have damaging effect upon vulnerable minorities.
Whilst s 18C may look broad on its face, it has been necessarily interpreted in a way that narrows its application and preserves a fundamental freedom by concluding that the law is not concerned with what Kiefel J labeled ‘mere slights’.[14]
References
[1] The Racial Discrimination Act (1975) Cth, s 18C.
[2] General Comment 35, ‘Combatting racist hate speech’ UN CERD, 83rd sess. CERD/C/GC/35 (26 September 2013).; General Comment 34, ‘Article 19 (Freedom of Opinion and Expression)’ UN HRC CCPR/C/GC/34 (2011).
[3] Creek v Cairns Post Pty Ltd [2001] FCA 1007; Toben v Jones [2003] FCAFC 137; Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761.
[4] Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761, 777; See also Monis v the Queen (2013) 249 CLR 92, 173.
[5] Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761, 778.
[6] Creek v Cairns Post Pty Ltd [2001] FCA 1007 [16].
[7] Ibid.
[8] Acts Interpretation Act (1901) Cth, s 15AA – AB.
[9] Monis v the Queen (2013) 249 CLR 92, 113.
[10] Commonwealth of Australia, Parliamentary Debate, Hansard of Record 15/11/94, 3336, (Attorney-General).
[11] Ibid, 3341.
[12] Above n 46, 118.
[13] Ibid, 116; See also Bradley v the Commonwealth (1973) 128 CLR 557.
[14] Above n 44.
