Attacks on the Racial Discrimination Act are not about free speech

Some of the victims in the 2011 Eatock v Bolt case; a case that showed that vexatious racial villification cases would likely not succeed.

Sections 18C and 18D of the Racial Discrimination Act — the law against racial vilification — are under renewed attack from the right. These attacks have the backing of Rupert Murdoch's media empire and the support of the federal government, which has announced a parliamentary inquiry to determine whether this law imposes unreasonable limits on free speech and recommend whether the law should be changed.

The truth is these racial vilification laws have not impeded free speech since they were introduced in the early 1990s. On the other hand, since then both Coalition and Labor federal and state governments have introduced many other laws that have strongly restricted freedom of speech and assembly. 

Our right to protest has been curbed by new laws in most states; special laws make it an offence for workers in Australia's refugee detention camps in Nauru and Manus Island to speak out about child abuse; police and ASIO powers have been greatly increased in the name of "anti-terrorism"; and long-held legal rights have been weakened or removed.

Many of these laws have been aimed at First Nations people, refugees and recent immigrants. These laws have given official encouragement to a huge increase in racial vilification, abuse and attacks around the country.

People have been killed, bashed, thrown out of trains and had their clothing ripped off in racist attacks. Entire communities live in daily fear of racial abuse or assaults.

These are the facts. In contrast, the hype about section 18C impeding free speech is a racist campaign of lies and needs to be totally rejected.

The racial vilification laws include an express protection of free speech in section 18D: “Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”

Subject, to these protections, section 18D makes it unlawful to “offend, insult, humiliate or intimidate” someone in public because of their race or ethnicity. However, the law also encourages complaints to be dealt through conciliation through the Human Rights Commission. Only 3% of cases actually get to court.

The actual numbers of section 18C complaints, while rising sharply since 2011–12, are a tiny fraction of the actual cases of racial vilification taking place. This is because the targets of systematic racism are often too disempowered, too uninformed of the law or too intimidated to bring complaints.

Most of the vexatious claims made are from people who do not belong to groups subject to racism. The recent much-publicised case Prior v QUT — in which Cynthia Prior alleged three white students posted “offensive” comments on social media after they were turned away from an Aboriginal-only computer lab — was not a vexatious case but rather one dismissed by the court because it did not have reasonable prospects of successful prosecution.

As in the 2011 case of Eatock v Bolt, Prior, an Aboriginal university worker, was clearly the target of racist behaviour but both these actual cases showed how hard it would be for vexatious racial vilification cases to succeed under the law.

The vilification law arose in the wake of independent public inquiries in the 1980s that demonstrated clearly how racial vilification had grave physical consequences for the targets of racism. Since then we have seen many cases of the open incitement of racial violence by people in positions of power, including the incitement of the notorious Cronulla race riots by radio shock jocks.

Human Rights Commission President Gillian Triggs has said she would support the replacement of the words “offend” and “insult” in section 18C with the word “vilify”. She said this would be less ambiguous and would strengthen the law. This position should not be supported without further legal investigation.

In the meantime, progressive and democratic-minded people should reject the false “free speech” campaign against the racial vilification laws and recognise that the real danger we are confronting today is a rise of racism and bigotry. The abolition or weakening of section 18C will further legitimise and encourage racism.

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