Racial Discrimination Act, 18c and the free speech debate

The debate around the Racial Discrimination Act, specifically section 18c, has been a hotly debated topic in Australian politics for an extensive period of time. The issue has once again come into the spotlight in recent weeks as backbench Coalition senators have again raised the issue, citing 18c specifically as having a ‘chilling’ effect on free speech. Section 18c, among other things, declares unlawful ‘offensive behaviour because of race, colour or national or ethnic origin’. One recent case in particular has re-energised conservative members of the Coalition in repealing Section 18c. The case in question involves a former employee at the University of Queensland Technology suing the university and students at the school. The incident in question occurred in 2013, when the employee removed students from a computer lab designated for Indigenous students. The students then took to Facebook to complain about the incident. The posts made by the students were deemed racially offensive by the employee and sought damages totalling nearly $250,000. Three years later, the case is still yet to be resolved.

Supporters of the law argue that Section 18c is a necessary component of the Racial Discrimination Act, on grounds of alleviating racial abuse and discrimination and as a way of curtailing hateful speech towards minorities. On the issue of potentially curtailing free speech, advocates for 18c cite the following provision, 18d, as a counter-argument against these concerns. 18d states that ‘18c does not render unlawful anything said or done reasonably and in good faith’. For supporters of the current legislation, the combination of both Section 18c and 18d of the Racial Discrimination Act strike the balance between protecting minorities against racial vilification and maintaining freedom of speech.

The desire to eliminate racial discrimination and vilification is, of course, a noble and worthy goal. No sensible person would argue otherwise. However, the current manner in which Section 18c is written, as well as cases such as the aforementioned case, can at times cause unintended consequences and potentially stifles discussion on sensitive issues. In particular, the terms ‘offend and insult’ within the wording of 18c can be stifling. Acting New South Wales Supreme Court Justice Ronald Sackville AO argues that this wording requires amendment. He cites Section 2A of the Racial Discrimination Act as being a legal safeguard against racially hateful actions. Section 18c and 18d, he argues, are vague and subjective in their wording, making establishing an objective and consistent legal standard for what is permissible and what isn’t permissible impossible. As a result, he argues, free speech is compromised, as there isn’t currently an objective standard to what could be considered as insulting or offensive.   Although the issue of amending the law is primarily favoured by right-leaning politicians and commentators, support for amendment can also be found among the Left, for this reason. Prominent progressive lawyers and commentators such as Julian Burnside, David Marr and Phillip Adams all support reform of the legislation on grounds of it stifling freedom of speech.

The issue of the Racial Discrimination Act and 18c in particular will likely not be a priority for the Coalition in the near future, with Malcolm Turnbull ruling out any amendment for the time being. The Act is a source of discontent for many backbenchers within the Government, however, and the broader debate of free speech and racially sensitive issues is one which will not go away. When the time comes that the Racial Discrimination Act is put forth for amendment, a mature, nuanced and comprehensive debate is required. A complex, sensitive piece of legislation such as the Racial Discrimination Act requires careful examination of all the potential legal ramifications and precedents.

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