WHY WON’T THE AUSTRALIAN > GOVERNMENT FOLLOW CANADA’S LEAD ON FREE SPEECH? AARON LANE Research Fellow at the Institute of Public Affairs n a visit to Canada earlier this year, Prime Minister Tony Abbott praised Canada for being a longstanding friend of IAustralia that has always shared our commitment to democracy and liberty. So why won’t the Australian government follow Canada’s lead and completely repeal section 18C of the Racial Discrimination Act? In June 2013, Canada repealed its section 13 of its Human Rights Act. This section made it unlawful to communicate, by phone or internet, ‘any material that is likely to expose a person or persons to hatred or contempt’ based on grounds of discrimination. (The prescribed grounds of discrimination included race, national or ethnic origin, colour, and religion.) A key problem with Canada’s section 13 of the provision is the use of the word ‘likely’ to have exposed somebody to ‘hatred of contempt’. Canadian Conservative MP, and sponsor of the repeal bill, Brian Storseth explains: This is a very subjective and unnecessarily vague definition, not AUGUST 2014 | IPA Review 11 IPA_21 Review July 2014 C2.indd 11 5/08/2014 6:17:02 PM R FREE SPEECH Volume 66 I 2 CONTINUED undermine the dignity and self- THE BATTLELINES WERE one of the narrowly defined legal worth of target group members DRAWN BETWEEN definitions that would be far more and, more generally, contribute to > THOSE WHO SOUGHT appropriate for this clause. This is disharmonious relations among TO PROMOTE GROUP where section 13 truly fails to make various racial and cultural and RIGHTS AND ENDORSED a distinction between real hate religious groups, as a result eroding STATE-CENSORSHIP, speech and what I often term as the tolerance and open-mindedness AND THOSE WHO ‘hurt speech’, or speech that is simply that must flourish in a multicultural SOUGHT TO DEFEND offensive. This means that if someone society. THE CLASSICAL LIBERAL has offended somebody and is Dickson went on to state that the TRADITION. investigated under section 13 of the promotion of rights for certain groups Canadian Human Rights Act, intent was of such ‘pressing and substantial opinions can be expressed. At one is not a defence. Truth is no longer a importance’ that it warranted the point, the Commission’s investigator defence. limitation of the freedom of expression asks Levant what his ‘intent and In a similar way to section 18C, for all Canadians. purpose’ was in publishing the section 13 gave Canadians the Just as the Andrew Bolt case has cartoons. Why should somebody have ability to seek legal redress against placed pressure on Australia’s section to justify their free expression to the those that have offended them— 18C, in Canada two high profile state? principally, by making a complaint cases demonstrated the problems The parallels with the Andrew to the Human Rights Commission. with section 13. In 2006, Ezra Levant Bolt case are obvious. Bolt breached At the conclusion of an inquiry, the published the famous Danish section 18C not because he got Commission could make a range cartoons of the Prophet Muhammad his facts wrong, as many claim, of legally enforceable orders that in his magazine, the Western but because Federal Court Justice included lifetime speech bans, as well Standard. He published these in an Mordecai Bromberg did not like the as monetary compensation. apparent effort to cover the news tone of Bolt’s articles. By its very design, section 13 story, where major news publishers Another prominent Canadian favoured identity group rights over around the globe lacked the courage. case was against Mark Steyn. Between the classical human right of free Following a complaint by 2005 and 2007, Steyn wrote twenty- speech. The 1990 Canadian Supreme a Calgary imam, Levant was two separate articles about Islam Court decision of Taylor v Canadian interrogated by the Alberta Human in Maclean’s magazine. The series Human Rights Commission, an Rights Commission. Levant posted included an extract of his book, which important Canadian constitutional law the interrogation on YouTube. It’s an argued that the spread of radical case, made this clear. The then Chief extraordinary record—the judicial ideology in Muslim countries was a Justice Brian Dickson explained that: and bureaucratic system has become threat to Western values. Messages of hate propaganda the arbiter of what (and how) Three law students approached Maclean’s to print a counter article. When its editor refused, they filed suit in the Human Rights Commission. Complaints were also filed by the British Columbian Muslims and the Canadian Islamic Congress. Although the complaints did not proceed, the head of the commission took the liberty of writing an open letter to Maclean’s that implied Steyn had to put up with the continued threat of restrained speech, simply because it was the ‘law of the land’. These two cases sparked a national debate in Canada. The Ezra Levant interrogated by the Alberta Human Rights Commission. battlelines were drawn between 12 IPA Review | ipa.org.au IPA_21 Review July 2014 C2.indd 12 29/07/2014 12:33:56 PM FREE SPEECH R those who sought to promote group with section 18C duplicating other rights and endorsed state-censorship, Commonwealth and State laws to and those who sought to defend the the extent it prohibits conduct which classical liberal tradition. ‘intimidates’. There was no question about The repeal of section 13 in which side the Canadian Human Canada was met with the same Rights Commission lined up on. arguments as we are hearing for the In 2008, one of the Commission’s repeal of section 18C in Australia. lead investigators testified to a Canadian Senator Nancy Ruth hearing that ‘freedom of speech is said that the repeal would ‘remove an American concept, so I don’t protection from disadvantaged give it any value’. The Commission’s groups’, and would be a ‘victory for Chief Commissioner Jennifer Lynch hate-speech’. told the National Post, ‘I’m a free Canadian academic Jane Bailey speecher. (But) I’m also a human declared that Canada’s democracy rightser’. As the National Post points needs provisions like section 13 if out in a scathing editorial: Canada ‘wish[es] to be seen as nation The cover of Macleans magazine No human right is more basic that protects and advances the equality featuring Mark Steyn’s article. than freedom of expression, not of the socially vulnerable’. Bailey even the ‘right’ to live one’s life free contends, ‘Provisions such as section reflect the fact that in Australia we from offence by remarks about 13 … represent democratic decisions ‘don’t accept discrimination, exclusion, one’s ethnicity, gender, culture to take a collective public stand to restriction or preference based on race or orientation. Ms Lynch seems intervene in the dehumanization or ethnicity’. In his view, repealing mistakenly to believe there is a process, rather than waiting to see if it section 18C will allow racism and delicate balance between free culminates in violence and bloodshed.’ bigotry to flourish, threatening expression and other, newer human The House of Commons passed Australia’s social cohesion. ‘rights’. the section 13 repeal bill in June 2012. Yet the provisions in Canada Fortunately, the courage of Conservative have now been inoperative for well MP Brian Storseth helped change the over a year and there is no evidence law of the land for the better. Storseth EXISTING CRIMINAL that Canadians are any less tolerant introduced a private members’ bill LAWS ARE THE MOST than before. > EFFECTIVE MECHANISM into the Canadian Parliament to repeal Freedom of speech is a core section 13 in full. AGAINST HATE SPEECH. element of political freedom in It passed with support from the any true liberal democracy. The Harper Conservative government. After an unusually lengthy delay in current exposure draft proposed by Harper and his government argued the Senate, it became law in June 2013. Attorney-General George Brandis is that existing criminal laws were the Although there was officially a one- certainly a substantial improvement appropriate legal mechanism against year phase-in period, no new cases on the current law in Australia. racial hatred—not subjective and vague could be brought to the Human Rights Repealing section 18C and so-called human rights legislation that Commission and current cases were replacing it with the proposed curtailed freedom of expression. essentially dismissed. provisions would go 95 per cent of In a speech on the repeal, Justice In Australia one of the left’s the way towards ensuring that what Minister Rob Nicholson argued that key arguments against the happened to Andrew Bolt will not Our government believes that repeal of section 18 of the Racial happen again. However, the ideal section 13 is not an appropriate Discrimination Act is that Australia position would be for section 18C to or effective means for combatting needs laws for redress against racism. be repealed in full—as was the case in hate propaganda … We believe the Race Discrimination Canada. Hatred and bigotry has not Criminal Code is the best vehicle to Commissioner Tim Soutphommasane been unleashed in Canada; nor will it prosecute these crimes. contends that laws like section 18C be in Australia. So too is the case in Australia. Existing are ‘part of our legislative architecture A shorter version of this piece first criminal laws are the most effective of racial tolerance and multicultural appeared in The Australian on 13 mechanism against hate speech, harmony’ and that these laws simply June 2014. R AUGUST 2014 | IPA Review 13 IPA_21 Review July 2014 C2.indd 13 29/07/2014 12:33:57 PM.