Wednesday, 20 May 2015

s18C of the Racial Discrimination Act - why it doesn't need to be amended

This is going to be a link-heavy post, but I'll try to summarise the use of each link to save you trolling through hundreds of thousands of words. It may also be a long post, but it is something I feel strongly about. For the purpose of any libel suits, this piece reflects my opinion, and nothing more.

The 'tl;dr' version of this blog post is that s18C of the Racial Discrimination Act 1975 does not need to be amended to protect 'free speech' or to enable lively political discussion about unpopular topics. I argue that defence of 'fair comment' which is explicitly stated in s18D of the Act ("Exemptions") is sufficient protection to our freedom of speech, and that we have to balance our freedoms against our right to a peaceful life.

In particular, I argue that Andrew Bolt cannot avail himself of the 'poor me' argument, because he is a crass bigot who benefits from fallacy and sensationalism more than he does from stimulating real meaningful debate.

More after the jump.

On 20 February 2015, The Australian published an article entitled "Weak signs our leaders will defend freedom of speech against Islamic terror" by Chris Merritt. Whilst I appreciate that reading The Australian is a good way to get fed up with humanity, this discussion has been around the traps for a few months now and bears examination.

Merritt argues that
"If the federal government's planned changes to citizenship and security laws are to be effective, they will need to be calibrated to the changing nature of the threat from Islamic terror. And in the light of recent attacks in Copenhagen and Paris, that will require the abandonment of entrenched political positions over reform of section 18C of this country's Racial Discrimination Act." (emphasis mine)
Those who were prepared to defend the right to express unpopular and even offensive ideas had been defeated decisively - first in the Federal Court and, last year, inside the government of Tony Abbott." (emphasis mine)
His point is (I think) that by maintaining a restriction on 'freedom of speech', we are letting the terrorists win. (Did I mistake that somehow?) At least, he argues that criticizing the terrorists in Paris for attacking Charlie Hebdo, a clear attack on free speech, is hypocritical if we have our own restrictions on free speech. He argues that this "skewed mechanism ... sends the wrong message to Islamic fascists and anyone else seeking retribution against those who hurt their feelings."

Ignoring for a moment the blind stupidity of assuming that extremists of any denomination will be affected by a change in the wording of our Racial Discrimination Act, this argument is argumentum ad absurdum. In other words, it tries to prove a point by using an extreme example. I won't bother refuting the suggestions that extremists might be analysing our laws before engaging in terrorist activities, or that the changes to this Act would prevent an attack. They are absurd suggestions.

Merritt's absurd argument comes on the back of several months' worth of debate about revoking s18C of the Act. The arguments seem to be that the Act as written restricts people's rights to make offensive comments in journalism too much, restricting the free-flow of ideas and debate, and unnecessarily impinging on our freedom of speech. The argument used by Andrew Bolt in his response to a judgement "Why can't I be free to speak?" is that "writing frankly about multiculturalism... [is] too dangerous for any conservative. [...] because no one now dares object for fear of what it will cost them in court."

Merritt argues that the legislation is too harsh because the question of 'offence' is "judged from the perspective of a hypothetical reasonable representative of those who claimed that his words caused them to feel offended, insulted, humiliated and intimidated." In my view, he misses the point entirely. He focuses on the causing of offence, not the section allowing such offence in the cause of 'fair comment.' He then goes on to say that the judgement against Bolt was unfair, because Bolt was judged to cause offence on the perspective of the person offended, not on the perspective of Australian community standards.

In my view, Bolt will cause offence no matter who he targets, and that is part of our political discourse. If Bolt's views offend you, you shouldn't be reading The Australian (or the Herald Sun, or any other Murdoch paper.) But that isn't the point. I appreciate that there has to be some freedom to offend people, but the Racial Discrimination Act makes it an offence to do so because of their race. Given our history of subjugation and exploitation of Aboriginal people, I think that this is sensible. Where Bolt strays from the path is where he makes offensive comments without a fair justification. In other words, when he 'has a go' for no reason other than to offend.

In April and August 2009, the Herald Sun published two articles by Andrew Bolt, entitled "It's so hip to be black" and "White fellas in the black". In the first article, he ridiculed a number of 'fair skinned aborigines' for taking advantage of entitlements (such as art prizes, scholarships, appointment to panels, etc.) when they were not truly Aboriginal. He was challenged by Ms Eatock, and in September 2011, was found to have breached the Racial Discrimination Act. A copy of the 470 paragraph (57,000 word) judgement of the Honourable Justice Bromberg can be found here.

In short (ha!) Bromberg found that the articles were intended to offend, and that they were not entitled to the exemption of 'fair comment' because the articles were so factually incorrect that they were clearly not a 'fair comment.'

I won't go into the judgement, except to identify the failings that its detractors identify. People like Bolt say that it restricts their right to comment about issues touching upon race, for fear of offending people. I say that it does nothing of the sort.

Interestingly, respected journalists such as Jonathan Holmes (former presenter of Media Watch) object to the requirement for the exemption that the comment be done "reasonably and in good faith." In his article entitled "Bolt, Bromberg, and a profoundly disturbing judgment" (29 September 2011), he says "It [the Act] creates one particular area of public life where speech is regulated by tests that simply don't apply anywhere else, and in which judges - never, for all their pontifications, friends of free speech - get to do the regulating."

In my view, this is not a bad thing. This is a murky area of the law, where we balance the public's right to free speech against the public's right to live a peaceful life, free from offence and defamation. I don't think that the law CAN lay down a clear, straight line between what is acceptable and what is not, and so it must by default fall to the judges to make determinations.

Bolt's protestations under headings like "Why can't I be free to speak" and "Silencing me impedes unity" seem to miss the point - he published articles which were factually incorrect, offended people, and he was smacked down for it. Where's the harm in that?

Freedom of speech is one of those topics which can be argued in many fashions. You can argue that freedom of speech must be absolute - you must be free to say anything without consequence. This is the Bolt argument. It is easy to use the slippery slope argument to say that "if one thing is banned, what is to stop every unpopular opinion being banned?" This is the straw-man argument. It allows you to use a superficially similar but patently ridiculous scenario to argue against a proposition. Paul Bosanac in his book "Litigation Logic - A Practical Guide to Effective Argument" uses this example of a 1977 appeal of a bank robbery conviction: "I submit to you that if you can't take this evidence and find these defendants guilty on this evidence then we might as well open all the banks and say, "Come on and get the money, boys, because we'll never be able to convict them."

On the other hand, proponents of reasonable limits to Free Speech argue that the government SHOULD be able to ban certain comments, such as incitement to hatred, riot, or crime.

In my view, the question should always be "how much restriction is necessary to ensure a fair and peaceful society?". I argue that the current wording of the Racial Discrimination Act marks a good line in the sand, beyond which lies personal and unjustified attacks. I think that the 'fair comment' defence is the epitome of journalism, and that any genuine journalist who is not looking for controversy can always guard their backs by making fair and balanced arguments.

For further reading:

"Bolt, Bromberg and a profoundly disturbing judgment", Jonathan Holmes, 30 September 2011, The Drum,

"Bolt hits back in Herald Sun column", 29 September 2011, The Drum,

"Andrew Bolt, racial vilification and 'freedome of speech'", Mark Bahnisch, 29 September 2011, Overland,

"Bolt Trial 2014: David Barrow v Andrew Bolt & Herald Sun", David Barrow, undated,

"My statement on today's win in the Federal Court!", Anita Heiss, 27 September 2011,

"The Bolt decision will have implications for us all", Andrew Dodd, 28 September 2011, on The Drum,

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