Attorney General George Brandis has issued an exposure draft of proposed amendments to the RDA aimed at watering down the existing protections against offensive speech or, as he puts it, increasing the protection for freedom of speech. So what’s the deal?
Section 18C of the RDA has been lying there not doing much for many years. It might have stayed that way, had the charming Andrew Bolt not been found by the Federal Court to have infringed it by a series of articles in which he suggested light-skinned Aborigines were using their race to advance their careers. 18C prohibits public acts which are reasonably likely to “offend, insult, humiliate or intimidate” other people and which are done because of their race, colour or national or ethnic origin. There is a very wide exception for acts done reasonably and in good faith for purposes including fair comment on matters of public interest. The Court found that Bolt had no such defence.
Anyway, that caused a big stink and now the government wants to repeal s18C and replace it with a new offence. This will only outlaw public acts that are reasonably likely to “vilify” or “intimidate” another and which are done because of the victim’s race, colour, ethnicity or nationality.
It sounds not too unreasonable at first, and there is a legitimate argument that offence or insult is a bit too much of a restriction on free speech. Maybe vilify and intimidate are more appropriate measures.
However, then you look at the detail. Both words are defined narrowly, but the real devil is in the new exceptions. The prohibition won’t apply to anything spoken, broadcast, published or communicated “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.” This is not qualified by reasonableness or good faith.
If you can think of anything anyone could say that won’t be caught by that exception,
we’ll be impressed. For example, Holocaust denial would be completely fine, as would a statement that some races are genetically superior to others. In that sense, the exception is likely to preserve free (racist) speech more effectively than any other laws in Australia, given that there’s no legal, personal right to free speech in this country.
Politically, the sledgehammer obviousness of these amendments will be a red rag to the ethnic lobby groups, who are already gearing up to fight this on the beaches. It will be a major hot potato for the Government. And there lies the irony – if they’d just left it alone, s18C would continue to have offended nobody apart from the few Bolt-like creatures who have nothing better to do than assert their right to be obnoxious. It didn’t need to be an issue at all.