Proposed Changes to Racial Discrimination Act

Agenda Item 9.3 REPORT Report No. 131/14ccs

TO: CORPORATE AND COMMUNITY SERVICES – 14 JULY 2014

SUBJECT: PROPOSED CHANGES TO RACIAL DISCRIMINATION ACT

AUTHOR: DIRECTOR CORPORATE AND COMMUNITY SERVICES – CRAIG CATCHLOVE

EXECUTIVE SUMMARY

This report discusses proposed changes to S18C of the Racial Discrimination Act 1975 (The Act).

RECOMMENDATION That it be a recommendation to Council:

That this report be noted.

REPORT

1. DISCUSSION

A motion without notice was put to Council at the CCS Committee Meeting of 12 May 2014 seeking Council to write to the federal government objecting to proposed changes to S18C of the Racial Discrimination Act 1975 (the Act).

The Act was amended in 1995 by the Keating Government. S18.C was included in these amendments.

S18.C states:

RACIAL DISCRIMINATION ACT 1975 - SECT 18C

Offensive behaviour because of race, colour or national or ethnic origin (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is 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.

(2) For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place.

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(3) In this section: "public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

These amendments were strongly opposed at the time by the Liberal Party and although the Greens joined with the Liberals in the Senate to reject similar changes to the Crime Act, they allowed passage of the amendments to the Racial Discrimination Act.

The Keating government was expressly warned by the then Human Rights and Equal Opportunity commissioner, Irene Moss, not to legislate against the causing of offence.

In her influential 1991 report on HREOC’s National Inquiry on Racist Violence, Moss advised against following the model adopted in New Zealand where section 9C of the Race Relations Act had been “widely used and even abused by individuals complaining of insults or remarks of a relatively trivial nature”.

Acts of racial violence should be treated as “distinctive, serious criminal offences” under the Crimes Act. Civil remedies under the Racial Discrimination Act should be restricted to “the incitement of racial hostility”.

“The inquiry is not talking about protecting hurt feelings or injured sensibilities,” wrote Moss.

“The threshold for prohibited conduct needs to be higher than expressions of mere ill will.”

Public statement by the then Prime Minister Keating show that he believed it was never intended to stifle public debate on issues of race (see Attachment A).

EATOCK vs BOLT

There have been two cases involving the use of S18C that have made the section controversial. The first in 2011 involved conservative commentator and columnist Andrew Bolt (Eatock vs Bolt). He was sued by a group of fair skinned Aborigines claiming offense at an article he wrote in which he argued that they, because of their colour and features as well as non-aboriginal ancestry, had options as to how they identified and questioned their validity to claim race–based subsidy/opportunity designed to overcome disadvantage or develop Aboriginal role models.

This case was presided over by Judge Mordecai Bromberg. Prior to being made a judge, Bromberg ran unsuccessfully for pre-selection as the Australian Labor Party (ALP) candidate for the seat of Burke seat in 2001. Andrew Bolt was arguably the most effective critic of the Rudd/Gillard (ALP) governments.

Bromberg found in favour of the complainants (see Attachment C), stating that Bolt made imputations that the complainants: “have chosen to falsely identify as Aboriginal; and fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person” Bolt emphatically denies this (see Attachment D), stating that:

“In those articles I wrote that I did not question the genuineness of their identification. Report No 131/14ccs .3/

I did not even go as far as did Professor Larissa Behrendt, one of those who took me to court, who nine years ago declared that the definition of Aboriginality needed to be tightened, or "you run the risk of having the parameters stretched to the ludicrous point where someone can say: 'Seven generations ago there was an Aboriginal person in my family, therefore I am Aboriginal'." (See also Attachment E for similar arguments put forward by Aboriginal commentators, also citing examples and names, that have not resulted in legal proceedings)

To be clear: not once did I say that these people had no right to call themselves Aborigines. I've always accepted that they do.”

With regards to the protections alleged to be afforded by S18D, Judge Bromberg wrote:

“The inclusion of untruthful facts, the use of inflammatory and provocative language and the failure to minimise the potential harm to those likely to be offended denied to Bolt and the HWT, both the ‘fair comment’ exemption provided by s 18D(c)(ii) and the genuine purpose exemption provided by s 18D(b) of the RDA”

The “untruthful facts identified by Judge Bromberg (http://www.fedcourt.gov.au/publications/judgments/judgment- summaries#20111103) were: 381 In the first article (1A-21), Mr Bolt wrote that Ms Heiss had won “plum jobs reserved for Aborigines” at each of three named institutions or enterprises. Each of those assertions was erroneous. Mr Bolt accepted that they were wrong because they were exaggerated. One of the positions that Mr Bolt claimed Ms Heiss had won as a “plum job” was a voluntary unpaid position. The other two positions were not reserved for Aboriginal people but were positions for which Aboriginal people were encouraged to apply.

382 Mr Bolt wrote that Ms Eatock “thrived as an Aboriginal bureaucrat, activist and academic” (1A-28). The comment is unsupported by any factual basis and is erroneous. Ms Eatock has had only six to six and a half years of employment since 1977. In the case of Ms Eatock, Mr Bolt also suggested in the first article that she identified as an Aboriginal for political motives after attending a political rally (1A-27). That statement is untrue. Ms Eatock recognised herself to be an Aboriginal person from when she was eight years old whilst still at school and did not do so for political reasons.

383 Further, Mr Bolt intimated that Ms Cole chose to identify as an Aboriginal motivated by access to “political and career clout” (1A-4). This is a comment. The facts upon which the comment is based are not stated, referred to or notorious. There has been comment made after this case that the errors were not of a significance to invalidate the “fair comment” protections of S18D (see Attachment F): testimony

“Bolt was criticised for errors in his writings. Yet all he had done was what all journalists and bloggers do – he had used the internet for research. It also seems extraordinary to an observer of the trial that the biographical statements made by the nine applicants were accepted by the judge without testing by the court.”

This latter comment pertains to the evidence given by Cole that she was brought up by her Aboriginal grandmother and father (see Attachment G).

Report No 131/14ccs .4/

MORTIMER VS AITKIN

The second involved a left leaning academic, former University of Canberra Vice- Chancellor and former Chairman of the National Capital Authority Professor Don Aitkin who is being sued for $6 million for alleged racial discrimination. Ngambri Aboriginal elder Shane Mortimer alleges the adjunct professor's blog contravenes Section 18C of the Racial Discrimination Act and has lodged an application for damages in the Federal Magistrates Court. Mr Mortimer said he was offended by an article from August 27 that says: ''He looks about as Aboriginal as I do, and his constant references to his 'ancestors' makes me scratch my head.'' (See attachment H).

PROPOSED CHANGES TO S.18C

The Abbott government has indicated it will move passage of a Bill to amend S18.C as indicated in the media release by the Attorney General, George Brandis, below:

Racial Discrimination Act 25 March 2014

The Government Party Room this morning approved reforms to the Racial Discrimination Act 1975 (the Act), which will strengthen the Act’s protections against racism, while at the same time removing provisions which unreasonably limit freedom of speech.

The legislation will repeal section 18C of the Act, as well as sections 18B, 18D, and 18E.

A new section will be inserted into the Act which will preserve the existing protection against intimidation and create a new protection from racial vilification. This will be the first time that racial vilification is proscribed in Commonwealth legislation sending a clear message that it is unacceptable in the Australian community.

I have always said that freedom of speech and the need to protect people from racial vilification are not inconsistent objectives. Laws which are designed to prohibit racial vilification should not be used as a vehicle to attack legitimate freedoms of speech.

This is an important reform and a key part of the Government’s freedom agenda. It sends a strong message about the kind of society that we want to live in where freedom of speech is able to flourish and racial vilification and intimidation are not tolerated.

The draft amendments are released for community consultation. The Government is interested in hearing from all stakeholders on the proposed reforms. Submissions can be made until 30 April 2014 at [email protected].

A copy of the draft amendments is attached.

Exposure Draft Freedom of speech (Repeal of S. 18C) Bill 2014

The Racial Discrimination Act 1975 is amended as follows:

1. Section 18C is repealed. 2. Sections 18B, 18D and 18E are also repealed. Report No 131/14ccs .5/

3. The following section is inserted:

1. “ It is unlawful for a person to do an act, otherwise than in private, if: a. the act is reasonably likely: i. to vilify another person or a group of persons; or ii. to intimidate another person or a group of persons, and b. the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.

2. For the purposes of this section: a. vilify means to incite hatred against a person or a group of persons; b. intimidate means to cause fear of physical harm: 1. to a person; or 2. to the property of a person; or 3. to the members of a group of persons.

3. Whether an act is reasonably likely to have the effect specified in subsection (1)(a) is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.

4. This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”

It can be seen that the proposed amendments make unlawful vilification and intimidation but remove the offenses relating to offending, insulting and humiliating. The standard for vilification and incitement has been changed from the person who believes that they have been vilified to that of an ordinary reasonable member of the Australian community. Additionally, it specifically makes public discussion of race related issues exempt from this section.

The media release also makes it clear that submissions closed on the 30th of April 2014.

Darwin City Council passed the following motion at its ordinary meeting of 8 May 2014:

That Council write to the Committee on Freedom of Speech (Repeal of Section C) Bill 2014 in relation to the Racial Discrimination Act expressing Council’s view that there be protections against racial vilification.

This can be seen to be consistent with the proposed changes (see 1.a.i above).

2. POLICY IMPACTS

NIL

3. FINANCIAL IMPACTS

NIL

Report No 131/14ccs .6/

4. SOCIAL IMPACTS

NIL

5. ENVIRONMENTAL IMPACTS

NIL

6. PUBLIC RELATIONS

Council adopting a position on a controversial Federal Government issue would be itself controversial.

7. ATTACHMENTS

Attachment A: Article – “Abbott must fix problems in Race Act” Attachment B: Article – “Law of unintended consequences” Attachment C: Summary – Eatock vs Bolt Attachment D: Article – “This is a sad day for free speech” Attachment E: Articles – “Success – we like it white” and “Claims of racism need more damaging than the real thing” Attachment F: Article – “Where is justice” Attachment G: Article – “Publicity Video – Bindi Cole” Attachment H: Article - “Aitkin sued over alleged slur” Attachment I: Article - “We need more than libel laws” Attachment J: Interview excerpt – Gillian Triggs Attachment K: Article – “Hate speech law must go” Attachment L: Speech Transcript – Senator Scott Ryan Attachment M: Article – “Offence is key to free speech debate”

Craig Catchlove DIRECTOR CORPORATE AND COMMUNITY SERVICES

ATTACHMENT A

Abbott must fix problems in Race Act • by: Nick Cater • From: The Australian • March 18, 2014 12:00AM

AUSTRALIAN magistrates have always tended to take a dim view of people who threaten to throw bricks through other people’s windows. Nevertheless, Paul Keating insisted the law should go further.

“Why do we need a racial hatred bill?” John Laws asked the then prime minister in 1994. “Because basically having people running around saying ‘I’m going to throw a brick through your window or burn your building down because of your race’ should be an offence,” replied Keating. “And that’s what we’re making it.”

It was hardly the most convincing explanation for the racial vilification laws that were later to land a newspaper columnist in the dock.

Importantly, however, in Keating’s view racial vilification was explicitly linked to an act of physical violence to a person or their property.

There was no suggestion that the provisions could be used to redress hurt feelings or against the likes of Andrew Bolt.

Indeed, in the same interview Keating went out of his way to defend the right of Alan Jones — “our friend on the morning program” — to say pretty much what he liked.

“Good on Alan,” the PM said, “even though most of the stuff is middle-of-the-road fascism.” If the 1995 amendments to the Racial Discrimination Act had reflected these sentiments there would be little reason to repeal it.

Yet Part IIA of the act is not restricted to the incitement of racial violence, as federal court judge Mordy Bromberg found in the Bolt judgment.

The prosecution merely had to demonstrate that Bolt had committed “offensive behaviour based on racial hatred”.

Bromberg presumed Bolt had and that he had not acted in good faith, robbing him of the protection of section 18D.

The Keating government was expressly warned by the then Human Rights and Equal Opportunity commissioner, Irene Moss, not to legislate against the causing of offence.

“The inquiry is not talking about protecting hurt feelings or injured sensibilities,” wrote Moss. “The threshold for prohibited conduct needs to be higher than expressions of mere ill will.” As it turned out, the proposed amendments to the Crimes Act were a step too far even for the Greens, who sided with the Coalition to block them in the Senate.

“It will create a crime of words,” the Greens’ Christabel Chamarette told the Senate.

“This will take the legislation across a certain threshold into the realm of thought police.” The changes to the RDA were passed, however, with the shoddily worded section 18C unamended. Thus, for the past 19 years, it has been a civil offence “to offend, insult, humiliate or intimidate” a person or group on the grounds of national identity.

It is a legislative dog’s dinner that Attorney-General George Brandis is now obliged to clear up.

In hindsight the Howard government should have closed the loophole when it came to power. It was well aware of its dangers.

The promising new member for Warringah, for example, delivered a prescient critique of 18C in parliament.

“All that is necessary to create a civil offence under this bill is for someone to have hurt feelings,” Tony Abbott said. “What we need to combat racism is argument, not censorship.” Two decades later, Abbott has the opportunity to put that right. Brandis’s proposal to amend the act is expected to be discussed in cabinet this week.

Critics from both the Left and Right are predicting that the Prime Minister and his Attorney- General will pull their punches.

They are wrong. They underestimate how deeply Abbott and others of a classical liberal persuasion are offended by the perverse consequences of 18C.

They underestimate the chilling effect the act’s provisions have on those who hold the freedom of expression as a non-negotiable element of a liberal society.

And they underestimate the personal affront Abbott took to the prosecution of Bolt.

It will then be wholly out of character if the Prime Minister squibs this fight or if his Attorney- General does not present for cabinet’s consideration a carefully formulated remedy.

Barring a particularly recalcitrant Senate, 18C will be repealed in its current form. Three of the four words that were lazily cut and pasted into 18C from legislation outlawing sexual harassment — “offend, insult, humiliate” have to go.

That is not to under-appreciate the slings and arrows of racism but simply to recognise that the law is a crude and ineffective shield against the hurting of feelings.

“Intimidate”, or a word that conveys a similar meaning, is likely to stay. Indeed it should be strengthened to make it a more effective weapon against acts or threats of physical violence, which were the legislation’s original target.

The “good faith” test in 18D must be removed. An opinion is an opinion, whether arrived at in bad faith or in good.

It is difficult to mount a cogent defence of the law as currently worded, but the Race Discrimination Commissioner gave it his best shot in an impenetrable 7000-word speech delivered earlier this month. Tim Soutphommasane, an academic philosopher by trade, nit-picked his way through the works of Isaiah Berlin, Voltaire, John Stuart Mill and others as he attempted to define “the concept of freedom”. It is a laboured argument irrelevant to the present debate. For Liberals of Abbott’s persuasion, liberty is not just a matter for philosophical discussion but something one feels in one’s gut.

Incredibly, on this fundamental principle, the modern Labor Party finds itself, with Soutphommasane, cheering for the wrong side.

Opposition spokesman for legal affairs Mark Dreyfus told Sky News’ Australian Agenda on Sunday the act was working well. Bolt, he said, had got his just desserts.

Labor’s former finance minister Peter Walsh, one of the sternest critics of Keating’s racial hatred legislation, wrote in 1992: “When I joined the Labor Party 30-odd years ago, I believed it stood for civil liberty — for freedom of expression.

“Was I wrong, or have some people never understood what Mill was on about in On Liberty? ATTACHMENT B

Law of Unintended Consequences • by: CHRIS MERRITT • From: The Australian • March 27, 2014 12:00AM

BARRING a sudden reversal by the Abbott government, Federal Court judge Mordecai Bromberg is about to enter an exclusive club: he will soon become one of the few judges whose rulings have led to the destruction of a body of law.

Before his 2011 ruling against News Corp Australia columnist Andrew Bolt, hundreds of claims of racial vilification had been quietly processed over 20 years using a procedure that favoured those who claimed they had been vilified. It was mostly done behind closed doors at the Australian Human Rights Commission, with only about 5 per cent of respondents braving a hearing before a court.

After Justice Bromberg’s ruling against Bolt, the notoriety of the case and the clarity of the judgment meant a much wider audience became aware of the nature of the law governing racial vilification.

That culminated in this week’s release by Attorney-General George Brandis of a draft plan that would introduce a system that would oblige the courts and the Human Rights Commission to adopt a procedure that gives priority to community standards.

The Brandis plan says liability for speech that vilifies or intimidates people because of their race is to be determined “by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group”. This would reverse two decades of legal practice in which community standards had limited relevance. The potential liability of those accused of racial vilification was being judged from the perspective of a reasonable representative of those claiming they had been vilified. Legal academic Simon Rice has no doubt the Bolt judgment is responsible for the push to change the law.

“It lit the match — and it took off and ran,” said Professor Rice who is co-author of Anti- Discrimination Law in Australia.

This is not the first time rulings by Justice Bromberg have had an impact. In December he determined that Toyota workers should not be allowed to vote on whether they wanted to consider changes to their workplace agreement. Soon after, Paul Sheehan wrote in The Sydney Morning Herald that Justice Bromberg had “probably signed the death warrant of the Australian vehicle manufacturing industry”. In February, Toyota announced it would close its Melbourne manufacturing operations from 2017.

Like some others who joined the Federal Court during the Rudd-Gillard years, Justice Bromberg has strong Labor credentials. He sees the judiciary as a way of delivering what he describes as social justice. He joined the court in 2009, eight years after failing to secure Labor Party preselection for a federal seat.

At his ceremonial welcome to the bench he listed the reasons he had accepted judicial appointment. They included “my impassioned commitment to the rule of law and to the continued contribution this court makes to upholding the law as an instrument of social justice”.

He started his legal career at Slater & Gordon, Julia Gillard’s old firm, where his contemporaries included Bernard Murphy, who joined the Federal Court in 2011.

The judge yesterday declined an invitation to discuss section 18C and the government’s proposed changes. Professor Rice, who has criticised the government’s proposed changes, said Justice Bromberg’s ruling was “within bounds” and there was good authority to support his approach in determining liability based on a hypothetical reasonable representative of “the target group”.

Legal academic Spencer Zifcak — who was one of the first to call for section 18C to be changed — said it was wrong to see Justice Bromberg’s decision as a departure from the pattern of previous decisions. The judge had merely applied the law as set down in the Racial Discrimination Act.

Professor Zifcak had one caveat. “Bromberg made one fundamental error and that was to give some weight to the fact Bolt had expressed himself in inflammatory terms,” he said. “But apart from that, it is a good judgment overall. But that doesn’t mean the statute was good. It just means the decision, under the terms of the statute, was a reasonable decision.”

Professor Zifcak, who is based at the Australian Catholic University, is a former president of Liberty Victoria. He provided a briefing on Monday for the Coalition backbench and presented a paper on the operation of section 18C.

The draft plan outlined by the government on Tuesday would simplify the defences to section 18C by eliminating the requirement for “reasonableness” and “good faith”.

In the Bolt case, these requirements meant Justice Bromberg believed he was required to examine the tone of Bolt’s articles and to question the absence of material the judge believed should have been included in the articles.

The ability of judges to impartially assess this requirement for “reasonableness” has been subject to criticism in the US, according to Mirko Bagaric, dean of law at Deakin University. In remarks on the US research, not the Bolt case, Professor Bagaric said that whenever legislation contained a requirement for reasonableness “it introduces the capacity for judges to decide matters on the basis of their pre-existing sentiments”.

“There is an enormous amount of evidence in the US regarding the unconscious biases and prejudices judges bring to the task when they make discretionary decisions,” he said. “They are affected by their political views, their religious views, and impacted by things such as whether they make a decision before lunch or after lunch.

“When you have such a broad brush as this, it is quite easy for two judges to reach opposite conclusions, and that is often informed by their implicit biases.” ATTACHMENT C

Eatock vs Bolt (2011) FCA 1103 28 September 2011, Justice Bromberg

HUMAN RIGHTS – Part IIA Racial Discrimination Act 1975 (Cth) – offensive conduct based on race – newspaper articles and on-line blog articles – principles for determining imputations conveyed by articles – conventional meaning of ‘Aboriginal’ – whether Part IIA of the Racial Discrimination Act restricted to conduct based on racial hatred – whether articles were reasonably likely to offend, insult, humiliate or intimidate – whose reaction is to be assessed – relevance of community standards – ‘in all the circumstances’ – ‘reasonably likely – ‘offend, insult, humiliate or intimidate’.

This proceeding raised for consideration Part IIA of the Racial Discrimination Act 1975 (Cth) (the RDA), including questions as to the balance sought to be struck by Part IIA between justifiable freedom of expression and the right to freedom from racial prejudice and intolerance.

The applicant (Eatock) complained that two newspaper articles written by a well-known journalist Andrew Bolt (Bolt), and published in the Herald Sun by the Herald and Weekly Times (HWT), conveyed racially offensive messages about fair-skinned Aboriginal people. In a class action brought on her own behalf and on behalf of a class identified as people who have a fairer, rather than darker skin, and who by a combination of descent, self- identification and communal recognition are, and are recognised as, Aboriginal persons, Eatock claimed that Bolt’s articles contravened s 18C(1) of the RDA, which relevantly provided:

(1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is 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.

Bolt and the HWT denied that the elements of s 18C had been established and claimed that in any event, their conduct was exempted by s 18D of the RDA, which relevantly provided that: Section 18C does not render unlawful anything said or done reasonably and in good faith: … (b) in the course of any statement [or] publication…made…for any genuine… purpose in the public interest; or (c) in making or publishing: … (ii) a fair comment on any event or matter of public interest…

Justice Bromberg determined that each of the elements required by s 18C was established and that the conduct of Bolt and HWT was not exempted from unlawfulness by s 18D. His Honour was therefore satisfied that each of Bolt and HWT had contravened s 18C of the RDA by reason of the writing and publication of the articles. As well as making a declaration of contravention, Justice Bromberg made orders which prohibited the re-publication of the articles and required HWT to publish corrective notices in the newspaper in which the articles had appeared. In the course of his judgment and in construing s 18C of the RDA, Justice Bromberg held that: (i) section 18C was not restricted to extreme racist behaviour based upon racial hatred or behaviour calculated to induce racial violence; (ii) whether conduct is reasonably likely to offend a group of people, is to be analysed from the point of view of the ‘ordinary’ or ‘reasonable’ representative of that group, to whom will be attributed characteristics consistent with what might be expected of a member of a free and tolerant society; (iii) the phrase ‘reasonably likely’ in s 18C(1)(a) refers to a chance of an event occurring or not occurring which is real, and not fanciful or remote; and (iv) the phrase ‘offend, insult, humiliate or intimidate’ in s 18C(1)(a) does not extend to personal hurt which is unaccompanied by a public mischief of a kind that the RDA seeks to avoid and refers to conduct that has profound and serious effects.

Justice Bromberg held that Australian Aboriginal people are a race and have a common ethnic origin within the meaning of s 18C(1)(b) and that a person of mixed heritage but with some Aboriginal descent, who identifies as an Aboriginal person and has communal recognition as such, satisfies what is conventionally understood to be an Australian Aboriginal.

His Honour held that from the perspective of fair-skinned Aboriginal people, the articles contained imputations that: • there are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the individuals identified in the articles are examples, 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 • fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.

Justice Bromberg was satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the articles. Further, Justice Bromberg was satisfied that the causal nexus required by s 18C was satisfied because the articles were calculated to convey a message about the race, ethnicity or colour of fair-skinned Aboriginal people, including as to whether those people were sufficiently of Aboriginal race, colour or ethnicity to be identifying as Aboriginal people.

In relation to the construction of s 18D of the RDA, Justice Bromberg held: (i) the onus of proof under s 18D falls on a respondent; and (ii) that an assessment of whether conduct is done ‘reasonably and in good faith’ within the meaning of s 18D, involves a consideration of both objective and subjective good faith. Objective good faith will be assessed by reference to the values underlying Part IIA.

Justice Bromberg concluded that the articles were not written ‘reasonably and in good faith’, as required by s 18D of the RDA. The inclusion of untruthful facts, the use of inflammatory and provocative language and the failure to minimise the potential harm to those likely to be offended denied to Bolt and the HWT, both the ‘fair comment’ exemption provided by s 18D(c)(ii) and the genuine purpose exemption provided by s 18D(b) of the RDA. ATTACHMENT D

This is a Sad Day for Free Speech • by: Andrew Bolt • From: Herald Sun • September 29, 2011 12:00AM • I AM truly shocked. I cannot believe this is Australia, a land of free speech.

A judge yesterday told me I’d expressed an unlawful opinion on multiculturalism, and must never repeat it -- at least not in the way I did.

And you may be next, because I cannot be the only Australian to wonder why fair people with European ancestry insist they are Aboriginal only.

Why this insistence on such differences of race, I wrote?

But Justice Mordecai Bromberg of the Federal Court yesterday ruled that columns I wrote were unlawful. It came in a judgment where his Honour found against me in a case brought by Aboriginal woman Pat Eatock over my columns discussing racial identity.

“At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so,” the judge said.

You disagree? We have laws now to shut you up. I cannot believe it’s come to this.

I AM the son of Dutch parents who came to Australia the year before I was born. For a long time, I have felt like an outsider here, not least because my family moved around so very often.

You know how it is when you feel you don't fit in. You look for other identities, other groups, to give you a sense of belonging, and perhaps some status.

So for a while I considered myself Dutch, and even took out a Dutch passport.

Later I realised how affected that was, and how I was borrowing a group identity rather than asserting my own. Andrew Bolt's.

So I chose to refer to myself as Australian again, as one of the many who join in making this shared land our common home.

Yet even now I fret about how even nationality can divide us.

To be frank, I consider myself first of all an individual, and wish we could all deal with each other like that. No ethnicity. No nationality. No race. Certainly no divide that's a mere accident of birth.

So that's the background to the calamity that hit me yesterday. That's why I believe we can choose and even renounce our ethnic identity, because I have done that myself.

But I also believe that many people now increasingly do insist on asserting racial and ethnic identities, and that we increasingly spend money and pass laws to entrench them.

I think that a terrible pity, even a danger, because surely in a multi-ethnic community like ours it's important to stress what unites us, not what divides.

As you might know, I have argued against this trend. For instance, and this is what brought me to the court, I have written about what seems to me an increasing trend of people to identify as Aboriginal, when even their looks loudly suggest they have ancestry drawn from many "races" or ethnicities, especially European.

In two columns in particular -- and that's where this misery started -- I wrote about people who, it seemed to me, had other options than to call themselves, without qualification or hyphens, "Aboriginal".

They included nine fair-skinned Aborigines who responded not with public arguments, but with a legal action in the Federal Court to have my articles banned forever, and me prevented from ever again writing something similar.

I'm talking about people such as an Aboriginal lawyer whose father was British, an Aboriginal activist whose own sister identified as non-Aboriginal, and an Aboriginal writer whose father was born in Austria.

In those articles I wrote that I did not question the genuineness of their identification.

To be clear: not once did I say that these people had no right to call themselves Aborigines. I've always accepted that they do.

I am too worried now to quote directly from what I did actually write, but my argument -- which Justice Mordecai Bromberg of the Federal Court yesterday rejected -- was that such people had choices.

They could choose to identify as Aboriginal, or as some other ethnicity in their ancestry, or, as I do, as Australian. Even as an individual.

Indeed, they could do as the former sprinter Patrick Johnson once put it in his own case: "I have the best of both cultures, of a couple of cultures. I mean, Dad's Irish. I'm Aboriginal as well."

As well. And, in fact, since I wrote my damn columns two years ago, I've seen that one of the people I wrote about has indeed since described herself as someone of many heritages -- "of English, Jewish and Wathaurung descent".

Two years ago, I would cheerfully have argued that this acknowledgment of a multiple ethnicity was healthier, and truer, in such cases than insisting on only being Aboriginal. But not today. I no longer dare.

ATTACHMENT E

Success - We Like it White

Why are these people smiling?

The two on the left are smiling because they've not long returned from Harvard. The two on the right are smiling because they're about to depart for Oxford. (Photo of 2012 Perkins Trust Winners NLA)

These three (excluding of course, the not-for-much-longer PM) are smiling because they're off to Oxford & Cambridge.

And yes, they're all Aboriginal. All helped to achieve their dreams and more success than they imagined by the generous people at the Roberta Sykes Indigenous Education Foundation & The Charlie Perkins Scholarship Trust, with help from the faithful taxpayers of course.

Both organisations make some pretty high aims. Some of them I even agree with, like needing more positive Aboriginal role models and mentors out there, however, I disagree with having an overwhelming majority of white faces cast to play those roles. That is not to say that each of those people in the photo above won't be a great role model due to their achievements and efforts for their own family, or their friends, but a nationwide beacon of hope to all Aboriginal people? You can't even hope to claim such a thing is true.

What these opportunities have done is help these specific people. Not all Aboriginal people. We have no end of Doctors, Lawyers, Academics, Artists and Authors who identify as Aboriginal, however - it seems a smaller and smaller number of those are easily identifiable as Aboriginal - and therein lies the difference. Whilst someone of a similarly fair complexion who identifies as Aboriginal may be able to look up to the group above and see one or more of them as someone whose achievements they can aspire to, that is just not the case for me.

Perhaps, what is most disappointing is the fact that when we question this lack of black faces among those receiving assistance in the name of Aboriginal Equality, we're called racist, or perpetrators of Lateral Violence. Whilst taking part in the 'Aboriginal or Not' SBS program, Greg Lehmann stressed the point that those of us questioning the motives of those like him were guilty of Lateral Violence and responsible for much of the infighting amongst Aboriginal people.

A pretty comfortable position to take when you're on the blackfella dollar at Oxford, bruz.

Similarly, Kyle Turner, recipient of a scholarship in excess of $50,000 for Aboriginal students, wrote a piece denouncing any questioning of heritage in a piece in The Global Mail in August last year, using the tired line of 'Bolt is a neo-con', rather than address the questions people like Bolt have even raised. It is just easier to keep labelling people I guess, as engaging in a dialogue on the issues may just bring to the surface some uncomfortable truths that cast some of us in an unfavourable light.

But who is that helping to succeed?

Let's look at the local cohort of Indigenous Barristers here in Victoria.

Or have a gander at the Board over at the Australian Indigenous Doctors Association. What gaps have we closed again? Posted by Black Steam Train at 19:47

Claims of Racism More Damaging than the Real Thing • by: ANTHONY DILLON • From: The Australian • March 27, 2014 12:00AM • IT is time for some plain talk about racism, vilification, offence, hurt feelings and personal responsibility, given recent discussions about section 18C of the Racial Discrimination Act.

Jeremy Jones of the Australia/Israel & Jewish Affairs Council recently wrote in The Australian “racism is, unfortunately, a reality in contemporary Australia”.

That is true. But does that mean Australia is a racist country? There is a huge difference between saying that racism exists in Australia (as it does in most countries) and that Australia is a racist country. The question we should be asking is: how frequent and severe is racism in Australia?

Political correctness, with regard to people who identify as Aboriginal Australians, has reached the ridiculous stage where one can be accused of being racist simply by questioning the motives of some people who identify as being Aboriginal.

Or there is the obvious elephant in the room. Why is it that someone with multiple ancestries chooses to build their identity around being Aboriginal, when having only one of your 16 great-great-grandparents being Aboriginal qualifies you to claim being Aboriginal? People are free to identify how they wish, but they should not be surprised when they are questioned about it.

And those who question should feel free to do so without being branded a racist, even if someone claims, “you hurt my feelings”. Such a claim is really saying, “those who question me have more power over my emotions than I have over them”.

While claims of being a victim of racism can result in one being elevated to the status of hero, the myth that Australia is a racist country prevents important discussions from taking place: discussions about how to tackle the tough problems of sickness, poverty, alcohol abuse, poor educational outcomes, unemployment.

Accusations of racism are, for a few, a convenient distraction from tackling real problems. They can elevate the status and careers of a few.

People avoid addressing these tough issues because they are difficult to tackle and are problems for which Aboriginal people must be part of the solution.

For far too long, a very vocal group of Aboriginal and non-Aboriginal Australians has been insisting that the problems faced by Aboriginal people are to be solved by the government. While government certainly has a role to play, Tony Abbott was correct when he recently stated in the Closing the Gap report: “We have to stop pretending that a government policy or program on its own can overcome indigenous disadvantage … government programs alone will never close the gap.”

Promoting the message that Australia is a racist country comes at a cost; people will see no need to take responsibility for their lives. Claims of racism provide a perfect excuse for not having to make the lifestyle changes necessary to improve quality of life. They reinforce the victim mentality, where Aborigines are presented as victims of a racist country. Propagating such myths is far easier than addressing the tough problems mentioned previously. Yes, racism exists in this country. But we are not a racist country. There is an enormous amount of goodwill towards Aboriginal Australians and other ethnic groups. Claims of racism where it does not exist are more damaging to reconciliation and the health and wellbeing of Aboriginal people than real racism.

If we are to get tough on racism, shouldn’t we also get tough on people who promote it where it does not exist and accuse others of being racist simply because they have a message that may not be popular with a few?

Anthony Dillon is a post-doctoral fellow at the Institute for Positive Psychology and Education at the Australian Catholic University. He is part-indigenous.

ATTACHMENT F

Where is Justice? Michael Connor Quadrant Online http://quadrant.org.au/opinion/michael-connor/2011/09/where-is-justice/

When Andrew Bolt was mocked and abused in the forecourt of the Federal Court building no one took the slightest bit of notice and not one of the press journalists who witnessed the attacks bothered recording them.

Yesterday, in Courtroom 1 of the Federal Court Justice Bromberg spoke of conduct which “offended, insulted, humiliated or intimidated … fair-skinned Aboriginal people (or some of them)”. Yet, only minutes later, when Andrew Bolt was insulted and abused in the forecourt of the Federal Court building no one took the slightest bit of notice and not one of the journalists who witnessed the attacks bothered recording them.

Yesterday, Justice Bromberg gave his decision against Bolt in the case of Eatock v Bolt which was heard in late March and early April.

Set down for presentation at 10.15 some were already finding their seats by 9.30. Amongst the early arrivals was Joel Zyngier from Holding Redlich who was representing the nine people who had bought the case against Bolt and the Herald and Weekly Times.

As more people arrived Mrs Bolt opened the door, looked around and left. By now there were small groups and friendly whispered conversations.

At 10 there was a stir as the Judge’s associates prepared the bench for his arrival. Rapidly the room filled up with supporters of the nine and the media. Andrew Bolt came in with his solicitor, his wife and his children. He looked tense but confident. They sat in the front row with senior executives from his newspaper.

The courtroom was packed and it was the biggest audience that the trial had drawn. Although the trial concerned people the judge and the lawyers had called “white Aborigines” it was noticeable on this final day, as throughout the trial, that not a single “black Aborigine” was present.

At 10.16 there were three knocks, the judge entered, the court rose and the Federal Court was declared to be in session.

Justice Bromberg read out a short summary of his decision, just over 2,000 words. His full 57,000 word finding would be made available on the internet.

There seemed to be a clear indication of what his decision would be when he said: Mr Bolt and the Herald & Weekly Times relied upon the heading of Part IIA to contend that the operation of Part IIA is restricted to racist behaviour based upon racial hatred. I disagree.

His emphasis was on that short, two word sentence.

Much will be made, and should be made, of the Judge’s decision. Bolt was criticised for errors in his writings. Yet all he had done was what all journalists and bloggers do – he had used the internet for research. It also seems extraordinary to an observer of the trial that the biographical statements made by the nine applicants were accepted by the judge without testing by the court. By 10.35 it was all over – or just starting. “I have found a contravention of the Racial Discrimination Act because of the manner in which that subject matter was dealt with.” In those words Justice Bromberg appointed himself Australia’s Chief Literary Critic and Censor. Andrew Bolt was found guilty of bad ideas, and guilty of possessing literary talent. We all stood up as the judge left the room. In the confusion Geoff Clark stepped into the limelight. Grinning broadly, he stood apart in the central aisle of the courtroom and began applauding. The applause was taken up with enthusiasm by the many supporters. They wanted to hurt Andrew Bolt and they had. He looked shocked and numbed by the decision. Outside the court building there was an intimidating wall of journalists and photographers facing the revolving doors. It was windy and there was a delay before Pat Eatock in her wheelchair and Geoff Clark came triumphantly out. It was an amazing sight. Geoff Clark had put on his skin cloak and he and Eatock were wearing yellowish makeup on their faces. ”The sword of justice has struck,” said Clark, “and cut off the head of the serpent, let’s hope it doesn’t grow two heads.”

The media concentrated on the winners. “That was bloody great. What a great day,” said a woman watching.

There was a delay before Andrew Bolt was fed to the pack. “Do you reckon he went out the back door?” asked one of the nine with a grin.

As we waited an elderly lady leaving the court lost her footing at the doorway. She stumbled, lurched sideways and fell heavily. There was a rush to aid her. Paramedics were called, an ambulance with flashing lights arrived and she was still lying in the doorway being treated when Bolt appeared. Her agony seemed a fitting metaphor for Australia’s wounded freedom of speech.

Bolt was swallowed by the media scrum. He was obviously suffering and in pain. The audience was unsympathetic. He was grim-faced and articulate and spoke of a “Terrible day for free speech.” Those who had just won a victory over him delighted in his discomfort and jeered. He turned towards his attackers and said quietly, "Can I at least have my free speech now?" He then continued with his statement and did not answer questions: ‘It is particularly a restriction on the freedom of all Australians to discuss multiculturalism and how people identify themselves. I argued then and I argue now that we should not insist on the differences between us but focus instead on what unites us as human beings. Thank you.

As he stepped aside he was again jeered and crudely insulted. In the full finding Justice Bromberg provided dictionary definitions of terms used in section 18C of the Racial Discrimination Act:

Offend "1.To irritate in mind or feelings; cause resentful displeasure in. 2. To affect (the sense, taste, etc) disagreeably." (Macquarie Dictionary 3rd Ed)

In its chief sense "to hurt or wound the feelings or susceptibilities of; to be displeasing or disagreeable to; to vex, annoy, displease, anger; to excite a feeling of personal annoyance, resentment or disgust in (any one)." (Oxford English Dictionary)

Insult "To assail with offensively dishonouring or contemptuous speech or action; to treat with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage." (Oxford English Dictionary)

Humiliate "To lower the pride or self respect of; cause a painful loss of dignity to; mortify."(Macquarie Dictionary)

"To make low or humble in position, condition or feeling; to humble." (Oxford English Dictionary)

Intimidate "1. To make timid, or inspire with fear; overawe; cow. 2. To force into or deter from some action by inducing fear." (Macquarie Dictionary) "To render timid, inspire with fear; to overawe, cow; in modern use especially to force to or deter from some action by threats or violence." (Oxford English Dictionary)

“That’s why you’re scum Bolt,” screamed one woman. “What an evil person,” said another. These people were grinning and laughing and delighting in their own behaviour. They had lighter rather than darker skin and were dressed in tee shirts with Aboriginal sloganeering and clutching Aboriginal flags. They had been in the audience when the Judge handed down his judgement. ATTACHMENT G

Publicity Video – Bindi Cole

Even though the matter is undecided, Museum Victoria has put up online commentary dealing with the Bolt trial. In it they reveal an image given to them for a publicity video by Bindi Cole, one of the Bolt accusers.

This is the first time a photo of Bindi Cole’s Aboriginal grandmother has been made public, and it was not seen by Andrew Bolt before the trial.

In her witness statement Bindi Cole said:

My father is Aboriginal, his name is Byron Powell. I understand that my paternal grandmother was of Aboriginal descent. Her name was Margaret Ann Powell. Her skin was darker than mine. My great-grandmother was very dark. My grandmother hadn’t known exactly where she came from. She was researching her ancestry while I was living with her when I was seven or eight. I watched her go through a process to find out more about her identity. My grandmother eventually found out that she came from the Wathaurong people. The Wathaurong were from Ballarat, Geelong and Werribee area. My grandmother then started connecting with the Aboriginal people of that community. She would also go to the Aboriginal Centre for Elders in Melbourne and spend time there. She really worked hard to establish where she was from. However, even before she had started researching, she knew she was Aboriginal because her mother told her she was Aboriginal I guess because she was black. [Emphasis added: MC.]

… My grandmother knew she was Aboriginal, because her mother told her so.

Bindi Cole’s Museum video presentation includes this photograph of her grandmother and her father:

ATTACHMENT H

Aitkin sued over alleged slur ACT News Date: November 11, 2012 Ewa Kretowicz

FORMER University of Canberra vice-chancellor and former chairman of the National Capital Authority Don Aitkin is being sued for $6 million for alleged racial discrimination.

Ngambri Aboriginal elder Shane Mortimer alleges the adjunct professor's blog contravenes Section 18C of the Racial Discrimination Act and has lodged an application for damages in the Federal Magistrates Court.

But Professor Aitkin said the application was preposterous.

''I offered to talk to him and discuss with him, but he simply rejected it,'' he said. ''I am a supporter of the Aboriginal people in their struggle for respect … I've been a proponent for restoration for Aboriginal people since I can remember. I was a member of the ACT conciliation council while it existed for 10 years.''

Mr Mortimer said he was offended by an article from August 27 that says: ''He looks about as Aboriginal as I do, and his constant references to his 'ancestors' makes me scratch my head.''

Mr Mortimer said he was horrified that such an educated and prominent Canberran had equated indigenous ancestry to skin colour.

''It's dreadful, it's on his blog out to the entire world,'' Mr Mortimer said. ''It's extremely serious. Why would a person with that sort of profile and important position in the national capital make those sorts of statements.''

He said Professor Aitkin's blog belittled him. ''[It] casts doubt on my community standing. Discredits my Aboriginality internationally. Undermines my confidence. Treats me contemptuously, disrespectfully and offensively.''

Professor Aitkin apologised for the comment but refused to retract it. ''There is nothing offensive in saying that Shane Mortimer doesn't look Aboriginal because looking Aboriginal isn't one of the criteria. The criteria are do you claim to be and are you accepted by others as one.''

Mr Mortimer said the case was very similar to that of Herald Sun columnist Andrew Bolt. Bolt was accused of breaching the Racial Discrimination Act and was found to have contravened Section 18C of the act.

But Professor Aitkin said there was no comparison. ''That's stupid, I'm an academic, I'm an emeritus professor of the University of Canberra. I'm really distressed he feels this way. I respect his position as an elder,'' he said.

Mr Mortimer is seeking $500,000 in personal damages and a further $5.5 million to be paid to an indigenous non-for-profit organisation, Agriculture Arts Residency Kenmore Limited (AARK), of which he is chairman.

He said the $5.5 million figure represented $10 per Aboriginal and Torres Strait Islander, according to the last census. Mr Mortimer said he was forced to make an application to the Federal Court after his complaint to the Australian Human Rights Commission could not be settled by conciliation. But Professor Aitkin said Mr Mortimer was looking for a fight.

''The Human Rights Commission is for conciliation but he was not interested in conciliation, so I have no alternative … I have to respond to it because I'm summoned to court - I haven't had any legal advice about it but I will be meeting my lawyer in due course. But the whole thing - it's preposterous,'' he said. The matter is listed for hearing on November 26. ATTACHMENT I

We Need More than Libel Laws • by: MICHAEL SEXTON • From: The Australian • April 04, 2014 12:00AM

IN the course of the public debate over Attorney-General George Brandis’s proposed changes to section 18C of the federal Racial Discrimination Act, many opponents of the changes have pointed out that freedom of speech is not absolute and that there are other restrictions on publications under Australian law. They have referred particularly to the law of defamation.

There are, however, two crucial differences between section 18C and the law of defamation. Defamation, more traditionally described as libel and slander, was developed under the common law to provide a balance between the protection of an individual’s reputation and the community’s interest in freedom of speech. Two practical requirements for a successful action in defamation are an allegation that is false and damage to the plaintiff’s reputation. The reason for the effective requirement of falsity is that it was always a complete defence under the common law, as it still is under Australian legislation, to prove that the allegation was “true in substance and in fact”. But section 18C is not concerned with truth or falsity. If a statement is offensive or insulting, it does not matter whether it is true or not. Take as an example the statement that in and around 1915, up to 1.5 million Armenians in Turkey died, particularly through forced deportations to desert areas, and most because of the policies of the Turkish government. There is certainly historical evidence for this assertion but it is fiercely disputed by the present Turkish regime, as it has been by all its predecessors. Many Turks would be offended and insulted by claims of the Armenian genocide and questions of historical accuracy would be irrelevant to the offensive or insulting character of the statements. Maybe so, some proponents of section 18C would say, but the section provides a defence for statements made reasonably and in good faith during a discussion in the public interest. Yet this provides another contrast with the law of defamation. One of the defences available under that law has long been fair comment — the expression of an opinion on facts set out in the publication in question or so widely known as not to be needed to be specified. If the publication is in this form, the opinion expressed needs only to be the honestly held view of the author. It does not need to be reasonable. It may be unreasonable and wrongheaded in the eyes of most members of the community. To go back to the example of the Armenians and the Turkish regime of 1916: if some members of the Turkish community could demonstrate that they were offended or insulted by this allegation of the genocide, it would be necessary for the publisher to demonstrate that their view was put forward reasonably and in good faith. This may not seem so difficult in a case about events in 1915. But what about questions of modern history, where there is no real consensus among commentators? What about a statement that the Palestinians’ refusal to negotiate has prevented any settlement in the Middle East? Or that the Israelis’ refusal to surrender illegally occupied land is the real bar to any resolution? Or that the Sri Lankan majority has condoned war crimes against Tamils in the north of the country? Or that some Tamils engaged in a campaign of terrorism against the Sri Lankan government? The reasonability or otherwise of these views is hardly something that can be sensibly litigated in the Federal Court. But this is precisely what can happen under section 18C in its present terms. The section is obviously of no use in dealing with crude, one-off, verbal abuse. It is much likelier to be used — and has already been used — to attack controversial pieces of journalism or historical writing. This is just one of the reasons its present terms are totally unsatisfactory and need drastic surgery. Michael Sexton SC is the co-author of Australian Defamation Law and Practice. ATTACHMENT J

Gillian Triggs (Human Rights Commission Chairman) interviewed on Lateline

STEVE CANNANE: In the Bolt case, the judge said, “Even if I had been satisfied that Section 18C conduct was capable of being fair comment, I would not have been satisfied that it was said or done by Mr. Bolt reasonably and in good faith.” Does that mean Section 18D would not have protected Andrew Bolt even if he got his facts right? Does that mean the right to fair comment would have been overruled by a judge’s interpretation of what was said or done reasonably and in good faith?

GILLIAN TRIGGS: Well had what he had written been done in good faith and reasonably, he could have made a mistake on the facts.

STEVE CANNANE: But that’s up to the judge then to interpret that, isn’t it?

GILLIAN TRIGGS: That’s right.

STEVE CANNANE: And does that then restrict the freedom of speech of someone like Andrew Bolt?

GILLIAN TRIGGS: Well, it is ultimately an interpretation by the judge... ATTACHMENT K

Hate Speech Law Must Go • by: James Allan • From: The Australian • July 09, 2013 12:00AM

THE Gillard government's plans to impose yet more media regulations and anti-free speech laws never got through parliament and on to the statute book. But that doesn't change the fact that we in Australia are still saddled with the 1995 amendments to the Racial Discrimination Act that gave us section 18C, our federal level hate speech law.

This is the provision successfully used to go after Andrew Bolt. It is the one that makes vulnerable to legal assault any speech that is "reasonably likely to offend, insult, humiliate or intimidate" listeners or readers - the provision having been interpreted by the courts, bizarrely in my view, as one to be judged through the eyes of a reasonable member of the criticised group. So that more or less means those claiming to be victims, or playing the victim, will be used as the test of what offends, insults, humiliates or intimidates.

That's bonkers in my opinion. And it's certainly a big constraint on the free flow of opinions and speech. It wholly discounts the need, in any free society, for people to grow a thick skin and not play the victim in order to shut down views they don't like, however articulated.

That said, I know some Coalition supporting groups have a half-hearted attachment to this hate speech law. And so when Tony Abbott and George Brandis made clear they would repeal at least most of section 18C, that was comforting to all of us who believe a vigorous commitment to free speech is one of the most important commitments a democratic government can make.

I would urge the Coalition to repeal the whole of section 18C, pointing to my native Canada, the home of political correctness run rampant. At the end of June the Canadian parliament finally passed legislation to repeal its federal hate speech law, which is roughly analogous to our section 18C.

This was section 13 of the Canadian Human Rights Act, the federal provision at the heart of the Canadian prosecution of Mark Steyn several years back. Last year the Tory majority government in Canada supported a private member's bill to repeal section 13 and that got through the lower house. After some delay the wholly unelected and appointed (and shockingly undemocratic) Canadian upper house Senate also passed that bill at the end of June. That just leaves the Royal Assent, merely a formality.

The federal hate speech law in Canada is now effectively gone (though there are various provincial ones still in existence and a virtually never used criminal code one). But notice this. All those who comprised the anti-free speech brigade and who predicted doom if section 13 were repealed are silent. The skies haven't fallen for Muslims, self-identifying aborigines, Jewish groups, or anyone else. In fact the silence has been deafening from all those who had assured us that the emperor of thin-skinned "can't offend anyone" fundamentalism really was wearing clothes.

He wasn't. And now that's clear to everyone in Canada.

If the Coalition wins the next election and repeals all of s.18C, as it should, exactly the same would be true here. There would be a few perfunctory lamentations on the ABC and among a few Labor politicians and "human rights" bureaucrats, nothing more. Well, nothing more except that Australia would have made big strides in upholding the fundamental value of free speech.

So let us all cross our fingers and hope this Coalition promise is not forgotten or judged too hard to uphold.

James Allan is Garrick professor of law at the University of Queensland (now on sabbatical in North America). ATTACHMENT L

We are not a nation of tribes. Free speech is for us all to use and defend Thursday, March, 27, 2014, (4:58pm)

Senator Scott Ryan gives a great speech on free speech.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (16:30): I have said before that I am a first amendment type of guy. I have long admired the American culture that values freedom of speech as a critical, non-negotiable and—I think even more importantly—virtually un-conditional component of a free society. Senator Wong talks about people being attacked. I should probably declare at this point that I am a longstanding member and a former research fellow of the Institute of Public Affairs. What we have heard from the other side of this chamber—and from my good friend, Senator Cameron, who has just left—over and over again is the vilification of people merely by virtue of the institute at which they work. There is a reason why the Greens and the ALP hate the Institute of Public Affairs—it is because it is not part of their public sector mentality. It challenges the precepts that they put up, and it cannot be bowed by the fact that it is not on the public sector drip, the way they wish all civil society was.

What we have just heard from Senator Wong and what we have heard constantly from those opposite, including the Greens, relies on a profound misunderstanding of what our society is. They seem to view our rights, particularly our right to speech and our right to discuss—our right to participate in democracy and in a free flow of ideas—as coming to us via a licence from politicians or judges. They seem to think that, somehow, the laws in this place determine what we are allowed and not allowed to say. That is a profound misrepresentation of our constitutional and legal history. It is only in recent times that there have been such limits on things like speech. This is a profound fissure in what we view as the role of the state, and what we view as the role of the government and its relationship with the citizens of this country. Senator Wong accused Senator Brandis of celebrating the rights of bigots. What I will say is that I condemn the bigot, but I celebrate the rights of every citizen. And that is important, because a commitment to freedom of speech only really counts when it is tested. A commitment to freedom of speech only really counts when it comes to defending something you profoundly and viscerally disagree with—and that is where my commitment to free speech lies.

It is not about the public funding of artists. I do not have to fund someone to support their right to say something. There is a profound difference between the allocation of taxpayers’ resources to give someone the right to do something, and the question of whether or not they are allowed to say something. I will defend the right of someone to speak, but that does not entail and should not be confused with the idea that I should resource them to speak.

We have heard the constant complaints of those opposite over the last 48 hours about ethnic community leaders, multicultural community leaders, and their views on this particular proposal. I said at the start that I was a first amendment type of person: I view the proposal put up by the government and Senator Brandis in the exposure draft as a compromise. I accept that my views are not typical of all those in this place, or indeed all those in this country, in supporting a very strong and almost unlimited commitment to freedom of speech. The problem I have is that those opposite seem to see us as a nation of tribes; as a nation where self-declared leaders of communities—communities defined by race—should somehow should have a special place in the consideration of legislation that any other Australian citizen should not. Every Australian’s view has an equal standing in this place—every Australian’s view, no matter what community they declare themselves to be from; whether it be one or many; and whether or not they declare themselves to be leaders of communities. The elected bodies in this country are the elected representatives of the Australian people. We don’t believe in a corporatist society, or in one where there are a series of tribes where, somehow, some people have more rights than others.

The ALP and the Greens seek to define this as a debate about racism when it is not. It is a debate profoundly about speech, its limits, and the role of governments, politicians and judges in limiting the rights of our fellow citizens to express ideas. How is it our role to empower certain people in Australia, in this case judges under the current law, to determine whether another opinion is arrived at or expressed in good faith? That is the current provision in section 18D of the Racial Discrimination Act. What happened to Andrew Bolt was that a court said that his opinion was not expressed in good faith. It did not just ban the expression of that opinion; it banned its re-publication. It had to declare an Orwellian moment—that it never happened.

The point being that, of all those in this place, it was once the centre and the left of Australian politics who campaigned against censorship, yet it is the left of Australian politics who are now its greatest advocates.

Those opposite are confused between legality and licence. To not make activities illegal is not to approve of them. The great problem with speech being banned is it denies people— community leaders, as Senator Wong pointed out, and people like me, you, and others in this chamber; it denies us the opportunity to repudiate. Some speech should be repudiated. Some speech should be humiliated. Some speech should be ridiculed. But by banning it, it goes underground. In this technological world, where we cannot control the sources of news, that threat is even greater than when these laws were first passed just under two decades ago.

Those opposite confuse this with defamation law. It is an attempt to fudge the point, because defamation law often deals with issues and imputations of fact, not opinion. But this law can ban opinion. They ask why we are concerned that one journalist who they say is powerful had their opinion banned. I say, the idea that a court said that an article had to be stripped from a major newspaper’s website, and banned the expression of an opinion, is something we should all be concerned about. I remember the days when we would all have been concerned about that.

The most extreme left-wing activist lawyer in the United States’s ACLU would not tolerate this legislation. It shows how far the Labor Party and the Greens have moved from respect for basic individual rights for this law to even be considered, to say nothing of the laws proposed by the former Attorney-General Nicola Roxon which were going to expand the grounds for legal action of one citizen against another to an almost limitless number. Again, she confused our role of setting the boundaries as to what is illegal with regulating and proscribing the expression of opinion and expression of ideas.

I am proud to say I know Andrew Bolt. I would not necessarily describe him as a friend, only because I do not know him that well. The vilification to which he has been subjected by the professional left in this country over the last two years and the use of the law to ban him from expressing his opinion has been unprecedented. It is unprecedented in Australia to ban people from expressing political opinions. I know Andrew, and he does not have a racist bone in his body. But those opposite who disagree seek to use the law to suppress his views.

More harm was done to the views of those who oppose racism by this case and the ruling by Justice Bromberg that a member of the victim group shall be the standard by which racism is measured. So there was no arbitrary test that any Australian could be certain of to know when their opinion would be legal and when it would not be legal. More damage was done by the professional left activists and the legal censors who think it is their right to regulate speech in Australia. While I have always opposed these laws, they were not on the public agenda until for the first time the court was going to ban the expression of opinion. We were going to censor newspapers—and we did, because republication of Andrew Bolt’s views was banned.

I was invited a couple of years ago to give a speech to the Executive Council of Australian Jewry on this point. I know Colin Rubenstein and Jeremy Jones. I know their work against racism is profound. I know they have done a lot of good work, but I respectfully disagree with them on these laws. I cannot recount all of my reasons in the time available today. But one is that in places where these laws exist, particularly in the old world of Europe where there are speech codes, there are things such as, for example, the armoured personnel carriers that I saw outside the new synagogue in Berlin just over a decade ago. They are the places with all the racial problems. It is the new world—such as Canada, which has recently repealed some of these laws, Australia, New Zealand and the United States— which has provided a home, refuge and sanctuary for people from all around the world. In particular, the communities that have been oppressed in those countries of Europe have often found refuge in the country with the freest speech on earth—and that is the United States. I have faith in my fellow citizens that we will debate and come to the right resolution. Those opposite, sadly, do not. I do not know where it went. ATTACHMENT M

Offence is Key to Free Speech Debate • by: JUSTIN QUILL • From: Herald Sun • March 10, 2014 12:00AM • THERE’S a lively and polarising debate taking place right now about the Federal Racial Discrimination Act and possible changes to it.

This is a crucial issue. It has to do with freedom of speech. Your right to speak your mind. That’s something we usually take for granted in Australia, but it’s a right people consider dying for in other countries.

The debate centres on whether the Federal Government should change the Racial Discrimination Act to take away the prohibition on speaking publicly about race in a way that “offends” people.

Yes, you read correctly. Presently our law says you can’t say something that will “offend” someone if it is based on race.

There are some defences available, but causing “offence” alone shouldn’t be prohibited in the first place.

This is the legislation Andrew Bolt was found by the Federal Court in 2011 to have breached. I defended Andrew in that case and whether or not you agree with his views, he should be entitled to express them.

I consider the current legislation goes too far. And it needs to be changed. The Coalition, when in Opposition, pledged it would remove the prohibition against causing offence.

And it’s easy to see how that could be done. The Victorian Racial and Religious Tolerance Act appropriately sets the bar higher than just causing “offence”. Victorian law prohibits comments that cause “hatred, serious contempt, revulsion or severe ridicule” based on someone’s race.

That’s the legal test the federal Act should adopt. And had that been the test applied in Andrew Bolt’s case, it’s my view he would not have been found in breach of the law. Although I don’t like anything impinging on free speech, I accept there are times when it is appropriate to limit what people can say.

Causing “hatred, serious contempt, revulsion or severe ridicule” is a fair restriction on the right to speak freely. But causing “offence” goes too far and is subjective. It’s about how something you say is taken or interpreted by another person, as opposed to the effect it has on the “person in the street”.

In my view, if I say something about you and your attributes that offends you, then it should be bad luck. That’s part of living in a free society. But if I say something about your race that makes other people hate you, then I’ve gone too far. The law should then step in and stop me — as the Victoria legislation would.

When generalisations are made about a particular race it’s usually offensive. But in my view, that doesn’t mean we should stop the person holding those views or expressing them. Keep in mind, if someone is generalising about a race to the extent that members of that race are offended, there’s a good chance the speaker is probably not just causing offence, but also inciting hatred. In that case, they would be caught even if the federal legislation were changed to be the same as the Victorian legislation.

It should not be against the law to hold alternative views.

There are racists out there. And as repellent as I might find their views and as strongly as I might disagree with them, as long as they are not inciting others to hatred, then they should be able to hold those views and even express them.

But the minute they cross the line and start inciting others to hate, we should throw the book at them.

Warren Mundine, the head of Tony Abbott’s Indigenous Council, has reportedly directly advised the Prime Minister not to make the proposed change and to leave the “causing offence” clause in the legislation.

Mr Mundine is reported as saying: “None of us can see what the problem is with (the ‘causing offence’ clause).

“I do not believe this legislation has stopped freedom of speech. I speak quite freely.”

But I’m sorry, Mr Mundine, the test should not be whether you — or people who have the same views as you — are able to speak freely. The question is whether people who hold views different to yours are able to speak freely.

Let there be a limit on free speech, but let it be a more reasonable limit. Even if it allows some people to say things that might offend us.

Mr Abbott, please adopt the test in the Victorian legislation.

The well-known phrase — often incorrectly attributed to the French philosopher Voltaire — comes to mind: “I disapprove of what you say, but I will defend to the death your right to say it.”

Justin Quill is a media lawyer with Kelly Hazell Quill Lawyers and acts for the Herald Sun