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Racial hatred laws 20 years on

  • 11 April 2014

People have been asking me my views on the present debate about Senator George Brandis' 'right to be a bigot' and the proposed amendments to the Racial Discrimination Act. Even if one were to concede (as I do) the liberty, licence or freedom to be a bigot in a pluralistic, democratic society, there is good reason not to recognise a right to be a bigot, thereby creating the duty on others to accord the right.

There is a right to free speech. That right might be abused and it often is. One abuse of the right is the making of bigoted or hateful remarks. The making of such remarks is not the exercise of a right; it is merely the exercise of a liberty. I do not have the duty to allow the bigot to speak his mind in the public square. I have the liberty to drown him out. I have the duty to allow the free speech of someone who is not speaking in a defamatory, bigoted or hateful way and who is not interfering with the rights of others.

Back in 1994 when there was discussion at a federal and state level about the introduction of racial vilification and racial hatred laws, I said I was pessimistic about the utility of such laws with or without criminal sanctions and with or without conciliation. I was mainly focused on ensuring that any conduct defined as unlawful in this realm not be rendered criminal behaviour as many were seeking.

Thankfully the Parliament did not go down that track. Section 18C as enacted in 1995 contains a note stating: 'Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.'

This is part of what I wrote in Eureka Street in August 1994, a year before the Commonwealth Parliament enacted the present section 18C of the Racial Discrimination Act. Though it mainly argues against criminal sanctions, I also raised general concerns about any racial hatred law being applied equally to all:

Incitement to racial hatred and hostility, or hate speech as it