Committee Secretary Parliamentary Joint Committee on Human Rights Inquiry into in Australia Parliament House Canberra ACT 2600

16 December 2016

Re: Freedom of Speech in Australia – Racial Discrimination Act

Dear Committee,

I am grateful for the opportunity to provide a submission to the inquiry into Freedom of Speech in Australia.

I have written previously on Part IIA of the Racial Discrimination Act 1975 (Cth) in my academic work and some media commentary.1 I am one of the few academics in Australia from a minority background who has written on Part IIA of the RDA. I have expertise in this area of the law. Regrettably, I also have personal experiences of racial abuse.

The structure of my submission is in three parts. First, I will set out the purposes of racial vilification laws. Second, I will address the jurisprudence as it currently stands. Third, I will address the broader background to the current inquiry. In sum, my submission is entirely directed towards the first question posed by the inquiry. Namely:

1. Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss. 18C and 18D should be reformed.

I will make no detailed remarks on the conduct of the current Race Discrimination Commissioner other than to note that it is deeply inappropriate for a Commissioner, who is charged with overseeing the conciliation process, to solicit complaints. It is self-evident that any pretensions to impartiality would be lost the moment that a decision-maker solicits a complaint against a particular party.

In summary, I recommend:

(i) That Part IIA is in need of slight reform, but care should be taken to not greatly elevate the harm threshold;

1 See Dilan Thampapillai, ‘Inconsistent at Best?: An Analysis of Australia’s Federal Racial Vilification Laws,’ (2010) Canberra Law Review 1. Also, Dilan Thampapillai, Managing Dissent Under Part IIA of the Racial Discrimination Act, (2010) 17(1) eLaw Journal 52.

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(ii) That Part IIA of the RDA could be amended to bring it into line with State and Territory legislation; (iii) That the laws should be clarified so as to stipulate that racial vilification laws apply equally to all members of the community; (iv) That the test for vilification should have some regard to the views of the members of the aggrieved community; and (v) That Section 18D be amended to remove the term ‘good faith’.

I. RACIAL VILIFICATION LAWS GENERALLY

(i) The purpose of Racial Vilification laws

There is a genuine need for laws against racial vilification. It is a regrettable fact that there are some members of the Australian community who would seek to harass, intimidate, severely insult or exclude others on the basis of their race.

Their reasons for engaging in this type of conduct may vary. They may be unable to handle the existence of racial diversity within the wider Australian community. They may be unable to accept the reality that they have to compete for educational, employment and professional opportunities on an equal basis with people of other races.

Regardless of the reasons for their conduct, their inability to perceive and treat others equally is their own personal problem. In 2014, the current Attorney-General stated, “people do have a right to be bigots.”2 The minor controversy surrounding the way in which he made those remarks might have been somewhat unfortunate.3 Nonetheless, his point was rather well made, but notwithstanding rights to privately held bigotry, people should not necessarily have the right to impose that bigotry upon others. There is a huge difference between holding a set of beliefs and forcefully asserting them in a way that diminishes the quality of life of other citizens. Likewise, there is a massive difference between free speech, in terms of communicating ideas, and harassment. In his book on freedom of speech in Australia, Professor Michael Chesterman wrote that where racist statements are freely disseminated the consequences would be that the, “equality between groups of citizens and the dignity and security of individual citizens are threatened.”4

2 Senator , Hansard, The Senate, 24 March 2014, p1797 3 Senator Wong’s rejoinder is worth reading. See Gabrielle Chan, ‘Race law debate touches a personal chord – in Parliament and out,’ The Guardian, 28 March 2014. Available at: http://www.theguardian.com/world/2014/mar/28/race-law-debate-touches-emotional-chord-in- parliament-and-out. Senator Nova-Peris’s experiences with racism have also been recounted in the media. See Stuart Rintoul, ‘The Fast Track’, Morning Herald, 22 March 2014. Available at: http://www.smh.com.au/federal-politics/the-fast-track-20140317-34wav.html. 4 Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (Ashgate, 2000), 193.

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The law should not lend itself to allowing bigots to harass, intimidate, severely insult or exclude others on the basis of their race. Unfortunately, there is a danger that if 18C is amended to raise the harm threshold, that a range of racist behaviours might become lawful or might be perceived by some to be lawful. Suffice to say, intimidation and harassment are not desirable qualities in an open and vibrant public life.

There are strong pro-democratic reasons to support racial vilification laws. Equality is of paramount importance to a democratic society. As the Canadian Supreme Court stated in R v Keegstra5:

Expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics.6

Similarly, in an important essay in the Harvard Law Review, Jeremy Waldron stated:

…. hate speech regulation can be understood as the protection of a certain sort of precious public good: a visible assurance offered by society to all of its members that they will not be subject to abuse, , humiliation, discrimination, and violence on grounds of race, ethnicity, religion, gender, and in some cases sexual orientation.7

Racial vilification laws protect the basic dignity of individual citizens. While these laws cannot combat every form of racism or educate racists, they do serve as a useful protection where serious wrongs are committed. These laws should not be used recklessly or invoked over minor matters. These laws do provide minority groups with a measure of protection. Nonetheless, these laws should not be seen as setting up a false opposition between the majority and minorities, within a pluralistic and diverse society these laws also offer a means of restraining hostilities between and from minority groups.

Racial vilification laws must acknowledge the importance of free speech in a liberal democracy. There is value in supporting the right of individuals to put forward unpopular or controversial positions. Political debate is often untidy and contentious. As Justice Kirby noted in Coleman v Power, “Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion.”8 However, given that harassment and intimidation go beyond the boundaries of merely espousing controversial ideas the law needs to draw a line somewhere.

My view is that there is a legitimate role for the law to play wherever there are serious racist incidents. These may be matters where serious racist abuse is directly inflicted upon an individual. It might also include situations where racist messages

5 [1990] 3 SCR 697. 6 [1990] 3 SCR 697, 764. 7 Jeremy Waldron, ‘Dignity and defamation: The visibility of hate,’ (2010) 123 Harvard Law Review 1596, 1599. 8 Coleman v Power (2004) 220 CLR 1, 91.

3 are sent to a person or where a deeply racist tract is publicly disseminated. In my view, conduct that amounts to harassment, bullying, intimidation (whether engendering an apprehension of physical harm or not), severe insult or serious exclusion, are all legitimate grounds for action under racial vilification laws.

Further, given the variety of situations that might arise giving genuine cause for redress the standard must be flexible. That standard needs to reflect a real and dynamic legal relationship between free speech and protection from vilification. On a doctrinal level that relationship is currently well achieved within Part IIA by s 18D. It is difficult to see how the requirements of ‘reasonableness’ and ‘good faith’ impose a burden that is too onerous on participants in public discussion. The only qualification that I would offer is that ‘good faith’ might not necessarily be compatible with the commercial imperatives that surround modern media. I will elaborate on that point below.

The reasons for reform

I would question whether there is in fact a reasonable basis upon which to amend Part IIA at the present time. In a speech in Parliament prior to the last Government inquiry into 18C, the Attorney-General cited (i) the Eatock v Bolt9 decision and (ii) the absence of laws dealing with incitement to racial hatred as reasons for amending s 18C. Senator Brandis stated:

It is certainly the intention of the government to remove from the Racial Discrimination Act those provisions that enabled the columnist Andrew Bolt to be taken to the Federal Court merely because he expressed an opinion about a social or political matter.10

Similar opinions have been expressed in the media. However, a cursory reading of the facts in would demonstrate that Bolt did more than ‘merely’ express a political opinion. Bolt made statements about particular Aboriginal- that were found to be untrue. Admittedly, the Bolt case is a point of difficulty. The low threshold in s 18C brought Bolt’s articles within the parameters of the Act and his failure to make accurate statements effectively precluded any reliance on the s 18D defence. There are valid arguments that can be made against the low threshold in s 18C. However, as I note below, Bolt could have more vigorously argued the causation point.11 Further, notwithstanding the RDA, the content of Bolt’s articles would likely have triggered an action for defamation. Nevertheless, the decision in Eatock v Bolt has clearly been a pyrrhic victory for the supporters of the RDA.

9 (2011) 283 ALR 505. 10 Senator George Brandis, Hansard, The Senate, 24 March 2014, p1797. 11 Bolt’s failure to strongly press this point was a curious omission. His articles clearly attack the personal motivations of the plaintiffs in self-identifying as Aboriginal. This is a very different thing to attacking someone on the basis of their race. On the causation point see Creek v Cairns Post [2001] FCA 1007.

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It is worth pointing out that the Federal Court’s decision in Eatock v Bolt does not amount to censorship. Andrew Bolt’s impugned articles are still freely available on the internet. The only requirement imposed by the Federal Court was that a corrective notice be appended to the articles. Bolt is still free to comment on the issue of Aboriginal identity. He just cannot do so in a manner that carelessly contravenes Part IIA of the RDA or the laws of defamation. Many other people have written on the issue of Aboriginal identity in recent times without any legal disputes arising.

(ii) The application of Part IIA

I think it worthwhile to make some brief points about the present Part IIA scheme. While there was some inconsistency in the early decisions under the RDA,12 in recent years a more settled jurisprudence has emerged. Section 18C has contributed to the inconsistency via the low threshold.13 In Creek v Cairns Post,14 Keifel J, as she then was, elevated the harm threshold under s 18C above the ordinary meaning of the terms “offend, insult, humiliate or intimidate” by suggesting that the terms require, “profound and serious effects, not to be likened to mere slights.” The approach in Creek v Cairns Post has been followed in subsequent cases.15 It should at least be clear that the threshold under s 18C does not amount to a mere right not to be offended.

It is notable that the threshold in s 18C is lower than that in the State and Territory legislation. Nevertheless, the cases where vilification has been found would likely have also satisfied those laws. In short, the cases where the Federal Court has found racial vilification to exist have involved serious racist incidents. These have been cases of bullying, harassment, intimidation or extended racist speech.

In particular, in those cases where direct racist abuse has been at issue, such as Campbell v Kirstenfeldt,16 Horman v Distribution Group17 and McMahon v Bowman,18 the challenged acts have been easily found to be racial vilification.19 In each of these cases the racist abuse was directly made to the victim by the defendant. The racist abuse was also accompanied by vulgarity. In Campbell, the plaintiff, an elderly Aboriginal lady, was repeatedly verbally abused by her neighbour. The neighbour referred to her as “ ” and “ ” on a number of occasions and was generally

12 See Dan Meagher, ‘So Far So Good?: A Critical Evaluation of Racial Vilification Laws in Australia,’ (2004) 32 Federal Law Review 225. 13 See Dilan Thampapillai, Managing Dissent Under Part IIA of the Racial Discrimination Act, (2010) 17(1) eLaw Journal 52. 14 [2001] FCA 1007. 15 See Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105; Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307. 16 Campbell v Kirstenfeldt [2008] FMCA 1356. 17 Horman v Distribution Group [2001] FMCA 52. 18 McMahon v Bowman [2000] FMCA 3. 19 See also Kanapathy v In De Braekt (No.4) [2013] FCCA 1368.

5 aggressive. He persisted with his behaviour despite repeated police warnings. His conduct only ceased after he was sued in the Federal Court. It was only after he was sued that Mervyn Kirstenfeldt accepted that his conduct was wrongful and that he should apologise to Ms Campbell. I think it worth pointing out that Kirstenfeldt’s conduct inappropriately and substantially interfered with Ms Campbell’s right to enjoy her own property. Notably, she received a mere $7500 in damages.

In Silberberg v Builders Collective of Australia Inc and Another the posting of a vulgar anti-Semitic message on a discussion board was held to be vilification.20 In Silberberg the defendant failed to remove racist messages after several requests. In Clarke v Nationwide News Pty Ltd,21 Justice Baker found that the publication of comments that derided four deceased Aboriginal youths contravened s 18C.

Furthermore, the Holocaust denial cases, Jones v Scully,22 Toben v Jones23 and Jones v Bible-Believers Church,24 have also found to be racial vilification with little controversy.25 In each of these cases the Holocaust denial material was accompanied with anti-Semitic statements. In Jones v Scully, the defendant engaged in a number of racist acts including placing Holocaust denial material in the letter boxes of Jewish householders.

Racial vilification has also been found to exist in cases where there has been a pointed attempt to exclude a particular racial group from facilities or from having their views or culture taken seriously in a political debate. In both McGlade v Lightfoot26 and Warner v Kucera,27 it can be argued that though the insults in question differ in degree from the type of hate speech at issue in either the Holocaust denial cases or the direct racial abuse cases, they are still sufficiently serious to warrant an action before a court. In McGlade the defendant made racist comments about Aborigines in response to an interview with the Australian Financial Review (AFR). The AFR reported that the defendant stated:

“Aboriginal people in their native state are the most primitive people on earth"; and

20 Silberberg v Builders Collective of Australia Inc and Another [2007] FCA 1512. 21 [2012] FCA 307. 22 Jones v Scully (2002) 120 FCR 243. 23 Toben v Jones (2003) 199 ALR 1. 24 Jones v Bible Believers Church [2007] FCA 55. 25 For a discussion of the issues around Holocaust denial see Lawrence McNamara, ‘History, Memory and Judgment: Holocaust Denial, The and Law’s Problems with the Past,’ (2004) 26 Sydney Law Review 353. Also David Fraser, ‘‘On the Internet Nobody Knows You’re a Nazi’: Some Comparative Legal Aspects of Holocaust Denial on the WWW,’ in Ivan Hare and James Weinstein (editors), Extreme Speech and Democracy, (2009). The leading international decision on Holocaust denial is the Canadian Supreme Court’s decision in R v Keegstra [1990] 3 SCR 697. See also Kent Greenwalt, Fighting Words: Individuals, Communities, and Liberties of Speech, (1995), 64-70. Also Lawrence Sumner, ‘Hate Propaganda and Charter Rights,’ in Wilfrid Waluchow (ed), Free Expression: Essays in Law and Philosophy, (1994). 26 McGlade v Lightfoot [2002] FCA 1457. 27 Warner v Kucera, (Unreported) 10 November 2000.

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"If you want to pick out some aspects of Aboriginal culture which are valid in the 21st century, that aren't abhorrent, that don't have some of the terrible sexual and killing practices in them, I'd be happy to listen to those."28

McGlade is a case that directly affects political speech. However, there has been little or no controversy over this case. The decision has not impeded political discussion of Indigenous affairs.

In Warner the defendant placed a sign on the door of her restaurant stating “Not open due to destructive Aborigines.”29 In response to her sign others had written further racist remarks including “ ” and “ the parents: take it out of their abstudy.”30 The defendant was found to have vilified Aborigines.

There has been a significant amount of media commentary about the decision in Prior v Queensland University of Technology.31 The decision in Prior highlights the fact that the judiciary has interpreted 18C correctly. It should not be forgotten that the Court in Prior dismissed the claim on the basis that complaint did not satisfy the harm threshold. I note that there was a dispute as to whether Calum Thwaites had in fact used the term ‘ITT ’. I acknowledge both that Mr Thwaites has denied that claim and that Jarret J found that Thwaites had established a prima facie presumption that he had not authored the statement on Facebook. Jarret J stated:

Until there is proof regarding the document’s true authorship, its contents have no probative value; and, for that very reason, one cannot prove the document’s authorship solely from the document itself. To put matters in a slightly different way: the issue is whether or not Mr Thwaites was responsible for the contents of the document. Until that is proved, the document is merely unsourced documentary hearsay, placed on the computer screen through the agency of Facebook. If it is proved that Mr Thwaites was responsible, then the document can be tendered against him. But the document, itself, cannot afford such proof, since its admissibility as an admission against interest depends on its authorship first being proved from another source.32

I note that there is a news report in The Guardian newspaper to the effect that lawyers for Mr Thwaites are currently seeking to stop Facebook from providing details as to the account linked to Thwaites.33 I note also that Mr Thwaites is currently seeking $150,000 in damages in a libel suit against Ms Terri Butler over comments that she made on the ABC’s Q&A program.34 Ms Butler’s comments related to 18C and she simply noted that it was in Mr Thwaites’s interests to deny making the ‘ITT ’ post. No doubt this is true, particularly if he did not make

28 Reproduced at [2002] FCA 1457, [17]. 29 Warner v Kucera, (Unreported) 10 November 2000, 30 Id. Which aptly demonstrates the capacity of racist speech to attract further and much cruder racist speech. 31 Prior v Queensland University of Technology & Ors (No.2) [2016] FCCA 2853. 32 Id, [75]. 33 Joshua Robertson, ‘Court asked to close off search for origin of racist QUT Facebook post,’ The Guardian, 9 December 2016. Available at: https://www.theguardian.com/australia- news/2016/dec/09/court-asked-to-close-off-search-for-origin-of-racist-qut-facebook-post. 34 Id.

7 the remarks. It is worth observing that the main criticism paraded in the media around the Prior case was the effect that it would have on free speech and the ostentatiousness of her claim for $250,000 in damages.

Some of the commentary on the Prior case appears to mistakenly conflate the procedural matters surrounding the legal system with the actual meaning of section 18C itself. On the ABC’s Q&A program, Senator Paterson stated:

Yeah, I just don’t know how you can say, Albo, that there’s been no consequences of 18C, particularly for these students in the QUT case. Three and a half years of their lives were taken up by this legal dispute. Thankfully, they’ve got excellent pro bono legal representation. But their lawyers have estimated that their legal fees would be up to $600,000-700,000 if they had to defend themselves. That’s the financial cost.35

The length of time that the dispute took is a procedural matter. It has no bearing on 18C itself. Likewise, legal costs may vary greatly depending upon your choice of lawyer.

It is deeply remarkable that in the furore over the Prior case there has been no comment at all on other 18C cases. Most notably, none of the politicians or media commentators who have remarked on s 18C have addressed recent cases like Sidhu v Raptis,36 Kanapathy v In De Braekt (No 4),37 Murugesu v Australia Post,38 and Haider v Hawaiian Punch.39 All of these cases involved direct racial abuse. In each case the racial abuse had a profound impact upon the victims. Sidhu involved racial abuse in which the claimant was called a ‘coconut’ and a ‘ ’ in public places. Haider and Murugesu each involved serious racial taunts and an assault. It surprising that many of the advocates of free speech have ignored these cases and focused solely on the Prior case. The oversight is rather revealing as to the deficiencies in the ‘free speech’ argument.

It is worth noting that the Institute of Public Affairs, in its publication “The Case for the Repeal of Section 18C”40 does not address Toben, Campbell, Scully, Sidhu, Murugesu, Silberberg or Haider in its discussion of the ‘key’ cases.41 The significance of the oversight should not be glossed over given the role that the IPA has played in lobbying for the repeal of s 18C. Any fair and honest assessment of 18C would address all of the major cases in depth.

35 The program transcript is available at: http://www.abc.net.au/tv/qanda/txt/s4547904.htm 36 [2012] FMCA 338. 37 [2013] FCCA 1368 38 Murugesu v Australia Post & Anor (No.2) [2016] FCCA 2355. Murugesu was a general RDA claim, though the racial abuse identified in the case would clearly have contravened s 18C. 39 Haider v Hawaiian Punch Pty Ltd [2015] FCA 37. 40 Available at: http://ipa.org.au/portal/uploads/IPA_Submission_The_Case_for_the_Repeal_of_Section_18C_09122 016.pdf 41 See Part 7 of the IPA Report. The IPA Report states, “[t]he cases summarised above are not exhaustive.” This is quite an understatement. A more even-handed analysis would address all the major cases.

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International obligations

It is worth noting that comparable jurisdictions have similar laws to Part IIA of the RDA. Indeed, almost all liberal democracies have some form of racial hate speech laws. Examples of these laws can be seen in: Public Order Act 1986 (UK), Racial and Religious Hatred Act 2006 (UK); Human Rights Act 1993 (NZ); Canadian Charter of Rights and Freedoms, Schedule B of the Constitution Act, 1982; enacted as Schedule B to the Canada Act 1982 (UK); Art. R. 624-4 of the Penal Code (France).42 The notable exception is the United States by virtue of the First Amendment to the United States Constitution.

At an international level Australia is obligated to provide adequate measures to prohibit racist speech. Under Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), any “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Under Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) Australia is required to provide civil and criminal penalties for the incitement of racial hatred and discrimination.

Observations on Part IIA of the RDA

It is worth noting that most of the defendants in Part IIA have tended to be marginal figures. For a variety of reasons they have been precluded from espousing their views from a more central position within the marketplace of ideas. The Bolt case represents a shift away from this norm given the media profile of Andrew Bolt. However, this in itself does not warrant any special action on Andrew Bolt’s behalf.

Leaving aside the controversies around the Bolt case, there is little to suggest that the decisions that have been found to be racial vilification have produced an unjust or wrong result. These decisions have not materially impeded public life in Australia. Political discussion on sensitive topics and controversial positions have not been stopped by the jurisprudence.

It is also notable that two important communities in Australian society have been the groups to most use Part IIA. In a number of cases the Aboriginal and Jewish communities have availed themselves of the statutory scheme. The significant injustice done to Indigenous Australians through dispossession and discrimination

42 It is worth observing that on the ABC’s Q&A program, of The Australian newspaper said in relation to 18C that, “No similar Western country has legislation like this.” As the discussion above demonstrates, Mr Sheridan’s statement is clearly false. In the same program Mr Sheridan stated of 18C, “This is badly drafted legislation.” I am unaware of Mr Sheridan having any qualifications in law or any expertise at all in statutory interpretation. The program transcript can be accessed here: http://www.abc.net.au/tv/qanda/txt/s4559268.htm

9 has resulted in entrenched disadvantage. Likewise, within the Western world the Jewish community has grappled with a longstanding, and at times horrific, history of anti-Semitism. I am somewhat disconcerted to note that the victims in Kanapathy, Haider, Murugesu and Sidhu are all of South Asian background. I think that they should be congratulated for standing up for their rights and for equality. Moreover, that they have sought to do so within the parameters of the law is a testament to their inherent decency. I think it obvious that people who meaningfully engage with the law make a constructive contribution to a civilised society. The type of people who go about directing racist abuse at others are not productive or worthwhile members of a society.

Part IIA tends to be a statutory scheme of last resort. The legislation cannot cure prejudice. It cannot prevent a citizen from being racially abused. However, it does provide recourse once a line has been crossed. Part IIA does not necessarily educate racists. I suspect that most bigots know full well that their actions are wrong, but they seek to impose a twisted power structure through harassment and vilification.

In an important opinion piece Waleed Aly referred to s 18C as being unable to prevent racial abuse.43 However, for those of us who belong to racial minorities the existence of the RDA and Part IIA is important. While it might only be used in ‘worst- case’ scenarios it is an affirmation of our full and equal citizenship. In a society where identity and power are often contested this is not a small guarantee.44 There is little point investing and contributing to a society that does not view you as a full and equal human being. In this sense, there is in fact quite a lot at stake in the debate over s 18C.

Reforming Part IIA

Even though the decisions under Part IIA have tended to be just, there may still be value in clarifying the relevant legal rules. Racial vilification is a relatively new jurisprudential concept. Bringing Part IIA in line with the State and Territory laws will produce uniformity and clarity. It is important that the issue of uncertainty is addressed in the law. The decision in McLeod v Power,45 which held that derisory remarks about skin colour that were made to a white corrective services officer were not done on the basis of race, should also be addressed.

43 Waleed Aly, ‘George Brandis' Racial Discrimination Act changes create the whitest piece of proposed legislation I've encountered,’ The Sydney Morning Herald, 27 March 2014. Available at: http://www.smh.com.au/comment/george-brandis-racial-discrimination-act-changes-create-the- whitest-piece-of-proposed-legislation-ive-encountered-20140327-zqnea.html. I do not think that it is helpful to refer to legislation as being the ‘whitest’. 44 See for example, Judith Brett, ‘Relaxed and Comfortable the Liberal Party’s Australia,’ (2005) 19 Quarterly Essay 1. Brett states, “Howard has used a hard, exclusive nationalism of insiders and outsiders as well as the inclusive nationalist address to his fellow Australians,” at p41. See also David Marr, ‘His Master’s Voice – The Corruption of Public Debate Under John Howard,’ (2007) 26 Quarterly Essay 1. 45 [2003] FMCA 2.

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Racism tends to be about power. When we have individuals from important minority groups achieving positions of influence it is important to keep in place rules that prevent racist behaviour. Put simply, an Indian doctor who racially harasses a white nurse is no less culpable than he would otherwise be were their racial identities to be reversed.

There might be scope for addressing the existing threshold. However, in terms of overall reform, an approach, such as that which featured in the 2014 Exposure Draft written by Senator Brandis, which attempted to narrow racial vilification to the point of irrelevance, is likely to cause substantive injustice by allowing bigotry to extend into abuse and harassment. A set of laws that fails to do justice loses its validity. Likewise, a set of laws that is too obtuse loses its relevance. Navigating a path between these two undesirable ends is no easy task. There is merit in setting out more clearly the substantive concept of racial vilification. Yet, this is best approached as a multi-factored test. The law needs flexibility otherwise it cannot adapt to changing circumstances. At the same time it does need boundaries lest it wanders beyond the mischief at which it was originally aimed.

Consequences of amending the RDA

It is worth considering the consequences of amending the RDA along the lines suggested by some of its critics. I would suggest that if the RDA is amended:

(i) Complainants will simply shift to State and Territory laws. Changing the Commonwealth RDA will not affect State and Territory laws. These laws will still serve plaintiffs well in cases of serious racist incidents. In effect, an amendment to the RDA might only result in a forum shift.

(ii) Private organisations will step up their rules to avoid disruptive racist behaviour that might undermine their commercial and professional endeavours. There have been a number of situations where private organisations have taken action to prevent racism. These have involved serious consequences for transgressors. For example, when John’s Derbyshire published online a deeply racist article deriding African-Americans he was fired from his position at the National Review.46 Similarly, recent racist remarks by the owner of the LA Clippers, Donald Sterling, have seen him banned for life by the NBA.47

46 See Elspeth Reeve, ‘Why John Derbyshire Hasn’t Been Fired (Yet)?’ The Wire, 6 April 2012. Available at: http://www.thewire.com/politics/2012/04/why-john-derbyshire-hasnt-been-fired- yet/50803/. Derbyshire’s article can be accessed here: http://takimag.com/article/the_talk_nonblack_version_john_derbyshire#axzz1rWAoNIn4. See also Dilan Thampapillai, ‘What We Write Matters,’ ABC The Drum, 12 April 2012. Available at: http://www.abc.net.au/unleashed/3944546.html. 47 John Swaine, ‘NBA bans LA Clippers owner Donald Sterling for life over racist comments,’ The Guardian, 30 April 2014. Available at: http://www.theguardian.com/world/2014/apr/29/nba-la-clippers- donald-sterling-lifetime-ban-racist-comments.

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Likewise, the marginal figures who appear in many of the Part IIA cases, such as Toben v Jones and Campbell v Kirstenfeldt, are unlikely to appear or be welcomed on any university campus or place of business. Indeed, if Part IIA is replaced or rendered ineffective, all that will happen is that private law rules will step in to fill the leadership vacuum created by the absence of satisfactory public law rules. In criticising Part IIA, Professor James Allan points to the United States and the First Amendment.48 However, he fails to acknowledge that most private American organizations actually have very strict rules on racist speech. You can hardly make racist comments at Harvard University or any other reputable institution and expect to be allowed to stay on campus.

(iii) Bracket creep might begin in other areas of law. That is, we may see cases that are actually racial vilification matters being run before the courts as defamation, trespass, nuisance or other matters. It is possible that judges might stretch these areas of law so as to do justice between the parties. This does not augur well for doctrinal coherency. It is notable that in the United Kingdom many instances of racial abuse are treated as Public Order Offences. In these cases the perpetrators are brought within the criminal justice system.

(iv) The freer exchange of racist ideas and speech may result in violence. There has rarely been a case in history where racist insults have been exchanged and violence has not followed at some point. I note that many of the critics of the RDA give little if any attention to the actual victims of racist acts. It appears that in the eyes of some of the RDA’s critics the victims are either docile or supplicant. However, the events of the Cronulla Riots demonstrate that communal violence does happen. Without the safety valve that the law provides there is a danger that some people might retaliate against racist behaviour. One of the fundamental purposes of the law is to provide a mechanism by which disputes may be peacefully settled. Given that serious racist incidents do result in a genuine grievance it is worth considering whether abrogating the valuable role played by the law will actually serve a socially useful purpose.

II. BACKGROUND

(i) The Bolt Case

The Federal Court’s decision in Eatock v Bolt represents a significant victory for Indigenous Australians because it confirms in law a particular approach to the question of Aboriginal identity. Sadly, the response of the conservative side of

48 Stefanie Balogh and Patricia Karvelas, ‘18C not stopping racism, says law expert James Allan,’ The Australian, 28 March 2014. Available at: http://www.theaustralian.com.au/business/legal-affairs/c-not- stopping-racism-says-law-expert-james-allan/story-e6frg97x-1226866974817#.

12 politics has mirrored past events. Decisions such as Mabo (No 2) v Queensland,49 Wik Peoples v Queensland,50 and Eatock v Bolt are all in their own ways significant legal victories for Indigenous Australians. Yet, there is an unpleasant symmetry in that in each instance the conservative side of politics has overreacted, made exaggerated comments about the implications of the decision and sought to change the laws so as to remove the substance of that victory.

As noted, Eatock v Bolt is significant for the way in which it assesses Aboriginal identity. However, with the benefit of the time that has passed since the decision I do have some concerns about its place within racial vilification laws. I will make two points here to outline those concerns.

The first concern is that the insult in Eatock v Bolt, while clearly hurtful, may not reach the level of seriousness as that in other Part IIA cases. It does not actually attribute a negative characteristic to an entire racial group in the way that statements in other cases have done. The insult in dispute in Bolt was the suggestion that the plaintiffs were too light-skinned to be Aborigines. This insult was magnified by Bolt’s errors and the mocking and inflammatory tone of his articles. However, if the errors and mocking tone are put to one side, the insult does not reach the level of seriousness as those in Toben v Jones, Scully v Jones, Campbell v Kirstenfeldt or even McGlade v Lightfoot.

The particular problem for Bolt is that the low threshold in s 18C brought him within the Part IIA scheme, but his errors and misrepresentations precluded reliance on the free speech exemption in s 18D. Those errors were not minor. However, the question of Aboriginality is a legitimate topic for debate where affirmative action measures are concerned. Moreover, the issue of skin colour can legitimately arise within this context. That there is an awful history that shadows the issue of Aboriginality, does not mean that it is an issue that is exempted from debate.

My second concern is that Eatock v Bolt should really have been a defamation case. I suspect that it was run as a racial vilification matter to prove a political point. As noted, this has been a pyrrhic victory for the jurisprudence. In contrast to the other racial vilification cases, Bolt did not attack Aborigines as a race. He did not attribute negative qualities to Aborigines as a race.51 He attacked the bona fide claims of certain individuals to belong to that race. Bolt attacked the character and integrity of the plaintiffs as individuals. It was just that skin-colour formed an incidental part of that attack on their character.

Setting aside my concerns on the Bolt case, there are other issues of risk management and legal argument that should be addressed.

49 (1992) 175 CLR 1. 50 Wik Peoples v Queensland ("Pastoral Leases case") (1996) 187 CLR 1. 51 In stark contrast to McGlade v Lightfoot or Clarke v Nationwide News.

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Andrew Bolt is perhaps not blessed as an analytical journalist. Instead, to make the most of his talents, such that they are, Bolt practices a particular type of journalism. It relies on strident language, exaggerated claims and mockery. It picks controversial topics and makes statements that polarises the ensuing debate. In an online context this draws viewers to his publisher’s website and in turn enables the proprietors of the site to advertise to viewers. There is a market demographic for this type of journalism. It may not be to everybody’s taste. It may be perceived as lacking credibility and intellect within certain circles, but it still has a legitimate role within the marketplace of ideas. This type of journalism will at times probably run a fine line with defamation law or even racial vilification law. With any business model there are risks. For the most part the type of journalism that Bolt practices can easily proceed without resulting in litigation. However, it is incumbent on Bolt and those like him to manage the risks in their profession. Indeed, it is difficult to understand how a competent media professional, working for a sophisticated news organisation, could have been so unaware of the relevant laws that might impact upon his work. Viewed from a purely commercial perspective some of the arguments around RDA reform amount to shifting the risks associated with the Bolt business model onto the wider community.

Good faith

That said, the Bolt case offers a good reason for revisiting the requirement of good faith. The term good faith is used across a number of areas of law and it must have much the same substantive meaning, if our legal system is to be coherent, though it may well be susceptible to slight adaptations as the context in which it is employed changes. In the field of contract law, good faith is very controversial. Moreover, good faith is often understood to require reasonableness and fidelity to the bargain in a contractual setting. It necessarily imports an element of looking out for your counterpart’s best interests in a commercial relationship. At the very least, good faith necessitates the absence of bad faith. That is, a contracting party cannot attempt to cheat or frustrate the interests of their counterpart. More broadly speaking, good faith almost imposes an element of morality into commercial practise.

Nevertheless, our commercial law permits transactions where good faith may not necessarily be present, but, in which there is not necessarily bad faith. For example, if I sell you tobacco in the course of my business as a shopkeeper, I may know that consumption of the product is harmful to your health, but I am not deliberately seeking to harm you. At best the transaction is morally neutral, it would be hard to argue that it is moral, but it is perfectly lawful. Likewise, gambling transactions may proceed without any concomitant element of good faith. The High Court in Kakavas v Crown Limited,52 stated:

52 (2013) 298 ALR 35.

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Gambling transactions are a rare, if not unique, species of economic activity in a civilised community, in that each party sets out openly to inflict harm on the counterparty. In the language of Lord Hardwicke, there was nothing "surreptitious" about Crown's conduct. Generally speaking, it would be an odd use of language to describe the outcome of such voluntary, and avowedly rivalrous, behaviour as the victimisation of one side by the other. This is especially so once the focus of the appellant's case shifts away from his complaint of being lured or enticed into Crown's casino. To describe the business of a casino as the victimisation of the gamblers who choose to frequent it might well make sense in moral or social terms depending on one's moral or social philosophy; but it does not make a lot of sense so far as the law is concerned, given that the conduct of the business is lawful. And the courts of equity have never taken it upon themselves to stigmatise the ordinary conduct of a lawful activity as a form of victimisation in relation to which the proceeds of that activity must be disgorged.53 Kakavas involved a claim of unconscionable conduct in relation to gambling losses. In the immediate context, the High Court’s statement suggests that our commercial law will tolerate amoral conduct.

There is a difference between moral, amoral and immoral modes of conduct. Behaviour that is immoral should be proscribed. However, the task of a robust commercial law is to provide a framework under which a broad range of commercial and contractual dealings can take place. Not all of these dealings or acts will suit everybody’s ‘moral or social philosophy’, but that is not in of itself a reason to make certain conduct unlawful. Moreover, if our commercial law tolerates amoral behaviour in the context of a range of industries, why should a higher moral standard be brought to bear on other commercial activities? Clickbait journalism must necessarily have a degree of shock value in order to fulfil its role in the media market. Making money out of writing articles that shock, and, dare I say, offend, might be morally neutral, but it is not an illegitimate commercial activity. Further, I am not suggesting that clickbait journalism would be wholly unregulated. I am merely suggesting that given that reasonableness is already a requirement under s 18D, good faith adds an additional burden that is sometimes unhelpful. Removing the good faith requirement and retaining reasonableness as a requirement under 18D would not result in a significant injustice. Deeply racist writings, direct racist abuse and the like are all still likely to be found to be inherently unreasonable. However, it is not tenable for 18D to apply commercial activities in a way that other laws do not.

Causation

There were also aspects of Bolt’s legal case that could have been better developed. It was quite open to Andrew Bolt to have argued his case convincingly on issues of causation or purpose. As Justice Bromberg noted:

Section 18C(1)(b) specifies the causal nexus between the act reasonably likely to offend and the racial or other characteristic or attribute of one or more of the persons reasonably likely to

53 (2013) 298 ALR 35, [25] – [26]. The harm that the High Court refers to is financial harm.

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have been offended ….. That nexus or link is concerned with the reason that the act was done.54

Bolt could very easily have argued that he was attacking the character of the plaintiffs in his impugned articles rather than their race. This would have negated the causation requirement in s 18C(1)(b). Unfortunately, Bolt did not come across as a convincing witness at trial. Justice Bromberg’s assessment of Bolt’s evidence in relation to causation is not particularly flattering:

Not surprisingly, given the lapse of time, Mr Bolt had some difficulty recalling his thinking processes at the time of writing and at times during his evidence frankly admitted that he was “reconstructing”. Additionally, having observed Mr Bolt, I formed the view that he was prone to after-the-fact rationalisations of his conduct. I note in this respect in particular that Mr Bolt’s stated motivation for writing the Articles evolved during his cross-examination.55

Andrew Bolt could also have argued that s 18C does not extend to allowing members of the same basic racial group to claim against each other. After all, Bolt could have argued that if there was racial vilification in his articles it was directed towards the Western European heritage of the plaintiffs and his perception that this heritage had been misrepresented. Curiously, Bolt failed to appeal the decision.

Bolt’s own assessments of his case have stretched credibility. He has said that he has been gagged. However, as noted above this is not true. Quite apart from the corrective notice appended to the impugned articles, he remains free to comment on Aboriginality and a host of other matters. Andrew Bolt has criticised others for not defending him:

Every one of them knows what a supporter I have been of the Jewish community, not just in print, yet not one publicly protested when a Jewish QC told a Jewish judge in my case something far more foul than anything I had written - that my thinking resembled that of the Nazis who drew up the Nuremberg race laws.56 (emphasis added)

The ethnic background of Justice Bromberg is neither here nor there. Leaving aside the issues I have raised above, Justice Bromberg’s decision in Eatock v Bolt is a predictable decision under Part IIA of the RDA. Given the low threshold in s 18C, once it had been found to be satisfied the significant errors and misrepresentations in Bolt’s articles effectively precluded any reliance on s 18D. Had Bolt not been so sloppy and unprofessional in his research he might successfully have availed himself of the s 18D defence.

54 [2011] FCA 1103, [303]. 55 [2011] FCA 1103, [324]. 56 Andrew Bolt, ‘The Liberals must restore free speech,’ , 6 December 2013. Available at: http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/the_liberals_must_re store_free_speech_it_defends_all_regardess_of_faith_or_/.

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(ii) The Media Debate

The media’s reactions to the Bolt decision have played a large role in the move towards reforming the RDA. However, the media debate has contained a number of misrepresentations about Part IIA of the RDA. Some commentaries attacking the RDA have used the word “guilty” and have tacitly suggested that the RDA is a criminal law scheme.57

In some commentary, Part IIA, which is a whole statutory scheme containing inter- related provisions, has been reduced to merely turning upon the word 'offensive'. James Paterson, now a member of Parliament, but then a member of the IPA wrote, “the Racial Discrimination Act led a court to elevate the right not to be offended above the right to freedom of speech.”58 However, anyone who has read Justice Kiefel’s decision in Creek v Cairns Post would be well aware that the threshold under s 18C rises above merely being offended.59 The obiter statements of Justice Kiefel in Creek have been endorsed by the Federal Court in a number of cases.60

It is worth contrasting the remarks of Senator Paterson with the actual remarks of the judiciary. Senator Paterson wrote:

Freedom of speech matters precisely when someone is offended - that is when a society's commitment to the principle is really tested. Disturbingly, the Racial Discrimination Act led a court to elevate the right not to be offended above the right to freedom of speech.61

Senator Paterson’s remarks were made in relation to the Bolt case. Whether those remarks are a fair encapsulation of the decision of Bromberg J is highly questionable. Indeed, nowhere in Eatock v Bolt, does Bromberg J ever use the phrase ‘the right not to be offended’. In fact, Bromberg J was at pains to point out that the composite phrase ‘offend, insult, humiliate or intimidate’ went beyond mere personal hurt. Bromberg J stated:

… the section is concerned with consequences it regards as more serious than mere personal hurt, harm or fear. It seems to me that s 18C is concerned with mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public’s interest in a socially cohesive society.62

Moreover, in Bromberg J noted that the term ‘offend’ had to be read together with the other terms in s 18C. His Honour stated:

57 For a critique of the media discourse see Katharine Gelber and Luke McNamara, ‘Freedom of speech and racial vilification in Australia,’ (2013) 48(4) Australian Journal of Political Science 470. 58 James Paterson, ‘Bolt case highlights discriminatory Act,’ ABC The Drum, 29 September 2011. Available at: http://ipa.org.au/news/2486/bolt-case-highlights-discriminatory-act. It is worth noting that Senator Paterson does not appear to have a law degree. Accordingly, his ability to actually engage in statutory interpretation or legal analysis would be limited at best. 59 See Creek v Cairns Post Pty Ltd [2001] FCA 1007, [16]. 60 For example, Eatock v Bolt [2011] FCA 1103, [268] (Bromberg J); Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, [71] (French J); Sidhu v Raptis [2012] FMCA 338, [7] (Smith FM); Jones v Toben [2002] FCA 1150, [92] (Branson J). 61 Id. 62 Eatock v Bolt [2011] FCA 1103, [263].

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The definitions of “insult” and “humiliate” are closely connected to a loss of or lowering of dignity. The word “intimidate” is apt to describe the silencing consequences of the dignity denying impact of racial prejudice as well as the use of threats of violence. The word “offend” is potentially wider, but given the context, “offend” should be interpreted conformably with the words chosen as its partners.63

It should be clear then on the law, as it presently stands, the word ‘offend’ cannot be given its ordinary, broad meaning. It must be interpreted in a manner that is consistent with the terms that surround it, the structure and text of the RDA as a whole, and the purpose and history of the relevant provisions of Part IIA. Pretending that there is a ‘right not to be offended’ is mere sophistry. Regrettably, the finer points of statutory interpretation might have eluded Senator Paterson’s grasp. This is a risk run by those who comment on the law without the benefit of any actual training in the law. Needless to say, it is not correct to reduce Bromberg J’s considered judgment in Bolt to “elevating the right not to be offended above the right to freedom of speech.” There is clearly more depth and complexity in the judgment.

It is also worth quoting a rather lengthy extract from the judgment of French J, as his Honour then was, in Bropho v Human Rights and Equal Opportunity Commission.64 French J stated:

The criteria for determining the outer limits of the conduct caught by Pt IIA and the words ‘offend, insult, humiliate or intimidate’ must be judged according to their ordinary meaning, in their context, acknowledging their somewhat elastic content and having regard to the objectives of the legislation which are to be derived from its terms and from extraneous material including the Second Reading Speech and the Explanatory Memorandum. As a general principle freedom of expression is not limited to speech or expression which is polite or inoffensive. The European Court of Human Rights observed in the Handyside case that Art 19 of the ICCPR applies not only to information or ideas that are favourably received or regarded as inoffensive but, also subject to par 2:

‘those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad mindedness without which there is no ‘democratic society’.’

Handyside Case European Court of Human Rights (1976 Ser A No 24) [1976] ECHR 5; 1 EHRR 737

70 The intention of the Racial Hatred Bill as explained by the Attorney-General in the Second Reading Speech was ‘... to close a gap in the legal protection available to the victims of extreme racist behaviour’ (Parl Deb H of R 15/11/94 p 3336). … The balance struck by the Bill was to be read in the light of that purpose as was made clear in the Second Reading Speech:

‘In this Bill, free speech has been balanced against the rights of Australians to live free of fear and racial harassment. Surely the promotion of racial hatred and its inevitable link to violence is as damaging to our community as issuing a misleading prospectus, or breaching the Trade Practices Act.’

…

63 Id, [265]. 64 Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16.

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That observation covered the civil provisions of the Bill reflected in Pt IIA and criminal provisions which were not ultimately enacted. However, the Attorney-General said in reference to the civil provisions:

‘The requirement that the behaviour complained about should ‘offend, insult, humiliate or intimidate’ is the same as that used to establish sexual harassment in the Sex Discrimination Act. The commission is familiar with the scope of such language and has applied it in a way that deals with serious incidents only.’65

This extract lays bare the fact that Part IIA, comprising both ss 18C and 18D, attempts a balancing act wherein the community’s interest in free speech is weighed together with its interests in containing racial harassment. At the very least, 18C cannot be reduced to merely being represented by the word ‘offend’.66

More recently, on the ABC’s Q&A program, Senator Paterson stated:

… freedom of speech is a human right. And there’s now a number of court cases under Section 18C which demonstrate it does restrict freedom of speech.67

This is at least true. However, it is the very nature of Part IIA of the RDA to restrict speech where the relevant speech falls afoul of both sections 18C and 18D.68 It is worth pointing out that in the Murugesu case, the Court found:

… the applicant was subjected to racial taunts in the form of being called “ , told to go home to Sri Lanka by boat and subject to remarks equating his labour to slave labour”.69

No matter how strongly Senator Paterson and his ilk might romanticize the notion of free speech the law must surely draw the line somewhere.

Other commentary has ignored the role of the legal concept of proportionality in mediating between the goals of protection against racial vilification and freedom of expression. In Quadrant, John Izzard wrote in relation to the nominal conflict between freedom of expression and racism, “Pick one or the other, but you cannot have both!”70 The role of proportionality is well recognized in other legal contexts.71

65 Id, [69] – [71]. 66 Even a non-lawyer should be able to grasp the fact that statutory interpretation has its own rules and that these need some attention even before one approaches the interpretation of s 18C itself. 67 The program transcript is available at: http://www.abc.net.au/tv/qanda/txt/s4547904.htm 68 Senator Paterson might be deeply concerned to discover that other laws also restrict the ‘human right’ of free speech. For example, section 18 of the Australian Consumer Law which proscribes misleading or deceptive conduct restricts speech in trade or commerce which may mislead or deceive consumers. See for example; Vision Eye Institute Ltd & Anor v Kitchen & Anor [2014] QSC 260; Director of Consumer Affairs Victoria v The Good Guys Discount Warehouses (Australia) Pty Ltd [2016] FCA 22; Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors [2012] VSCA 91; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592. There are numerous cases on misleading or deceptive conduct. A sensible conclusion would be that the ‘human right’ to free speech is not absolute and that it can be restricted where other legitimate ends arise. The right to be free from harassment, which would be relevant in a case like Murugesu, would be such a legitimate end. 69 Murugesu v Australian Postal Corporation & Anor [2015] FCCA 2852, [224] (Burchardt J). 70 John Izzard, ‘The Gag is On Every Single One of Us,’ Quadrant, 14 March 2014, Available at: http://quadrant.org.au/opinion/qed/2014/03/gag-every-single-one-us/.

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In Campbell v MGN Limited,72 Lord Hope of Craighead stated of the proportionality exercise:

…… decisions about the publication of material that is private to the individual raise issues that are not simply about presentation and editing. Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. The decisions that are then taken are open to review by the court. The tests which the court must apply are the familiar ones. They are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy. The jurisprudence of the European Court of Human Rights explains how these principles are to be understood and applied in the context of the facts of each case. Any restriction of the right to freedom of expression must be subjected to very close scrutiny. But so too must any restriction of the right to respect for private life. Neither article 8 nor article 10 has any pre-eminence over the other in the conduct of this exercise.73 (emphasis added)

Campbell v MGN concerned a claim in the United Kingdom that the Mirror had breached Naomi Campbell’s privacy by publishing a photo identifying the location of the clinic where she was receiving therapy. The photo was published as part of a story refuting Campbell’s false claim that she had never tried drugs. The claim was decided under UK legislation which imported articles from the European Convention on Human Rights. As Lord Hope’s statement demonstrates it is possible to balance the competing ends of free speech and protection against some harm arising from speech. It is rather ill-informed to reduce the question of racial vilification and free speech to an ‘either/or’ equation. The test set out by Lord Hope is very similar to that found under s 18D.

Some criticisms have simply been bizarre. In relation to vilification and restrictions on speech generally, Dr Jennifer Oriel wrote:

In censoring free speech, people who consider themselves the cognoscenti of Western tolerance and diversity have become enjoined to a global political movement led by the world’s worst violators of human rights.74

There seems to be little, if any, basis for this argument. Oriel’s piece as a whole is less than convincing on this point. Dr Oriel has also written of opposition to amending the RDA:

The RDA anti-reform argument is based on three core beliefs: 1) It is acceptable to limit free speech in the interest of cultural diversity. …….If you agree, replace the term “cultural

71 See Susan Kiefel, ‘Proportionality: A rule of reason,’ (2012) 23 Public Law Review 85. 72 [2004] UKHL 22. 73 [2004] UKHL 22, [113]. 74 Jennifer Oriel, ‘The totalitarian urge to censor,’ Institute of Public Affairs Review: A Quarterly Review of Politics and Public Affairs, Vol. 64, No. 2, Jun 2012: 40-41. Available at: http://search.informit.com.au/documentSummary;dn=730010789693108;res=IELHSS.

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diversity” with communism under point one and cite the author: Zedong, Mao. 1957. On the Correct Handling of Contradictions Among the People.75

This is again a very odd approach to the debate around the RDA. That Mao Zedong might once have referred to cultural diversity, which is hardly surprising in the post- war climate, does nothing to invalidate the basic concept of cultural or racial diversity itself. Oriel’s statement makes as much sense as arguing against vegetarianism on the basis that Hitler was reportedly a vegetarian. The logic is sadly lacking.

Similarly, in criticising Professor Triggs and the basis for the RDA at international law Oriel states:

Australia has no extant legal obligation to introduce racial vilification laws. Triggs's friend "internationally" is presumably the UN and the supposed legal obligation is to articles 19 and 20 of the International Covenant on Civil and Political Rights. But the ICCPR is not formally enforceable in Australia and there is no formal mechanism for its enforcement internationally. Despite that fact, human rights commissions across the West take its integration into sovereign state law and institutions as core business.76

Oriel confuses the existence of a binding treaty obligation with the mechanism by which that obligation can be enforced. The inference that the ICCPR carries little weight is misleading. Further, article 19 actually deals with freedom of expression.77 The relationship between the RDA and the international law has been addressed in a number of the cases under Part IIA and was also acknowledged when the laws were first enacted.78 I have addressed the question of international obligations above. Oriel’s assertion that Australia “has no extant legal obligation to introduce racial vilification laws” is simply wrong.79 It does not actually appear that Dr Oriel has a law degree. Accordingly, her observations on the law are questionable at best.

Other misrepresentations of Part IIA have either played down or ignored the nature of s 18D. This has been a notable feature of the commentaries that have repeatedly appeared in The Australian newspaper. There is often no engagement with the actual text of the RDA or even the substance of the Bolt case. In commenting on the RDA, Professor Ramesh Thakur stated, “I have seen laws like this in India, and I didn't like what happened. India, after all, was the first country to ban Salman

75 Jennifer Oriel, ‘State censorship of speech kills off the free-thinkers,’ The Australian, 19 April 2014. Available at: http://www.theaustralian.com.au/national-affairs/opinion/state-censorship-of-speech-kills- off-the-freethinkers/story-e6frgd0x-1226889402563#. 76 Jennifer Oriel, ‘Left fights a rearguard action against liberty,’ The Australian, 26 December 2013. Available at: http://www.theaustralian.com.au/opinion/left-fights-a-rearguard-action-against- liberty/story-e6frg6zo-1226789689766#. 77 Which presumably would be something Oriel would support. Oriel also fails to make reference to the CERD. As Justice Bromberg noted in Eatock v Bolt [2011] FCA 1103, [197] the RDA refers to the Convention on the Elimination of Racial Discrimination (CERD) in its preamble. 78 See Toben v Jones [2003] FCAFC 137, [92] – [132] (Allsop J). See also Eatock v Bolt [2011] FCA 1103, [197] (Bromberg J). 79 In polite academic terms this is poor scholarship.

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Rushdie's novel Satanic Verses.”80 The tone of Professor Thakur’s article seems to suggest that a novel like The Satanic Verses might be banned in Australia under the RDA. Notwithstanding the question of whether Part IIA would even extend to Muslims,81 a cursory glance at s 18D would have informed Professor Thakur that Rushdie’s superb novel, The Satanic Verses, would have been exempted under the legislation.82 In a more recent article, Professor Thakur wrote of s 18C:

I want it thrown right out, replaced by a law that bans incitement to racial hatred and violence but leaves the thought police to the repressive regimes of the world.83

However, s 80(2A)(1)(c) of Schedule 1 of the Criminal Code Act 1995 (Cth) already proscribes the urging to violence against others on the basis of race. Professor Thakur’s commentary on 18C demonstrates a lack of care and attention to detail on an important matter of public policy. A moment’s research would have alerted Professor Thakur to the incitement laws that already exist in the Commonwealth’s Criminal Code. Similarly, as noted, the scope of 18D protects artistic works like The Satanic Verses.

In the aftermath of the Bolt decision, Chris Kenny accused Justice Bromberg of judicial ‘activism’.84 However, there is nothing in the text of Eatock v Bolt to suggest that the judgment is anything more than a stock standard exercise of statutory interpretation.

Other commentary has downplayed the errors made by Bolt. In discussing s 18D, James Allan stated, “that Bolt made a few factual errors.”85 In other words Allan contends that Bolt’s errors were not significant. However, Bolt made 19 errors in two articles. These errors played a large role in Justice Bromberg’s decision. Gelber and McNamara note:

80 Ramesh Thakur, ‘India Shows the Harmful Effects of Affirmative Action,’ The Australian, 10 October 2011, Available at: http://www.theaustralian.com.au/opinion/india-shows-harmful-effects-of- affirmative-action/story-e6frg6zo-1226162508717 81 There is a strong argument that it does not. In turn, that would make Professor Thakur’s remarks redundant. 82 Section 18D provides, “Section 18C does not render unlawful anything said or done reasonably and in good faith ….in the course of any …. publication, …. for any genuine academic, artistic or scientific purpose.” Given that Part IIA was drafted in 1995, the Rushdie controversy which took place in 1989 would likely have been fresh in the minds of the legislators. The Satanic Verses was clearly written for a genuine artistic purpose and there is nothing to suggest that it was not done reasonably or that Rushdie did not act with good faith. 83 Ramesh Thakur, ‘Wanted: Our Own Swamp Drainer,’ The Australian, November 18, 2016. 84 Chris Kenny, ‘Silencing dissent won't resolve indigenous issues,’ The Australian, 3 October 2011. Available at: http://www.theaustralian.com.au/national-affairs/opinion/silencing-dissent-wont-resolve- indigenous-issues/story-e6frgd0x-1226156370004. To describe the decision of Bromberg J in Bolt as ‘activism’ is to fail to appreciate the proper function of the judiciary within a common law legal system. 85 James Allan, ‘Andrew Bolt decision justifies repeal of a bad statute,’ The Australian, 30 September 2011. Available at: http://www.theaustralian.com.au/business/legal-affairs/andrew-bolt-decision- justifies-repeal-of-a-bad-statute/story-e6frg97x-1226152277397.

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Crikey tallied how many times, on the day following the judgment, editorials in Sun, The Australian and the Daily Telegraph mentioned ‘free speech’ or ‘freedom’ (13) and how many times they mentioned the ‘errors of fact, distortions of the truth and inflammatory and provocative language’ that were central to Bromberg's adverse finding (zero).86

The media debate and lobbying by the IPA and News Limited have played a large part in the move towards the amendment or repeal of Part IIA of the RDA. However, the media debate on the Bolt case and Part IIA is littered with exaggerations and misleading statements. Accordingly, there should be some doubt as to whether there is a credible basis to revisit Part IIA at this time.

Sincerely

Dilan Thampapillai

Senior Lecturer ANU College of Law Australian National University

86 Katharine Gelber and Luke McNamara, ‘Freedom of speech and racial vilification in Australia,’ (2013) 48(4) Australian Journal of Political Science 470, 476.

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