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Racial hatred laws 20 years on


Scan of Eureka Street page bearing Frank Brennan headline 'Thought police and racial vilification'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 is sometimes called, is conduct by an offender or a group that is likely to cause a second person or group to act in an adverse manner towards a third person or group on the grounds of their race, causing that third person or group to fear that violence may be used against them because of their race. Each element — cause, likelihood and grounds — would have to be proved beyond reasonable doubt in order to secure a conviction. Advocates of such laws concede that there is little prospect of successful prosecutions — there have only been one or two in Canada, for example — and argue instead for the symbolic value of the law.

Elliot Johnson QC, of the Royal Commission into Aboriginal Deaths in Custody, advocated legislative prohibition of racial vilification but expressed strong reservations about its being made a criminal offence. He concluded: 'In this area conciliation and education are likely to be more effective than the making of martyrs: particularly when it is words, not acts, which are in issue.' This approach has also been adopted by the Gibbs Committee on the Reform of Australian Criminal Law, and by the majority of the Australian Law Reform Commission in their report, Multiculturalism and the Law.

Such a law may fulfil a useful purpose in a society that habitually persecutes members of one ethnic minority. But in Australia, most vilification is exchanged between members of warring minorities whose relatives are at each other's throats back in the home country. It would be a brave Director of Public Prosecutions who decided to prosecute the Greek agitator and not the Macedonian organiser. It would be an unenviable task for the police officer, having to decide whether to arrest and charge the Croat or the Serb. Presumably the advocates of this law would espouse a selective prosecution procedure under which one would leave warring minorities to themselves while making a show trial of the mainstream community member who had singled out one racial group.

Such a law could be invoked not only by members of the persecuted minority, but also against them. Or would a selective prosecution policy preclude that, too? Take, for example, the 1993 sometimes vitriolic Mabo debate. For every elected politician who said that Aborigines had not evolved to the stage of developing the wheeled cart, there was an Aboriginal leader fulminating that white public servants were using word processors as the modern-day equivalent of strychnine to exterminate his people. For every mining magnate who claimed that Aborigines were stone-age people with uncivilised ways, there was an Aboriginal leader alleging that white members of the Liberal Party were like members of the Ku Klux Klan crusading for blood. In such an atmosphere, even threats of criminal prosecution would have been counter-productive as they are now when people of goodwill are wrestling with the political fallout of Pauline Hanson's unwillingness fairly to represent Aborigines and Asians in her electorate.

The criminal law is a very blunt instrument for reshaping the hearts of racists and clearing the air of racist sentiment. Such interference with civil liberty does nothing to enhance further the human rights of the woman wearing the hijab. It does not help in the resolution of interethnic conflict. It does nothing to produce more reasoned public discussion about migration or Aboriginal rights, which are the two key issues relating to race and which play upon the public's racial fears. It will bring the criminal law and its governors into disrepute, if the criminal sanctions are ever invoked.

At this time, in this part of the world, thought-police armed with criminal sanctions are not the answer.

Senator Brandis has circulated a proposal to amend the existing provisions prohibiting offensive behaviour based on racial hatred. I continue to wonder whether such laws can be applied equally to all.

But if it be made unlawful to intimidate a person or group of persons because of their race, the court assessment of whether the offending conduct is reasonably likely to have that effect could only be made by the judge putting herself in the shoes of a member of that race and asking, 'In the situation of this racial group, am I reasonably likely to feel intimidated by these statements or actions?'

It is ludicrous to suggest, as does the government draft, that the reasonable likelihood of intimidation 'be determined by the standards of an ordinary member of the Australian community, not by the standards of any particular group within the Australian community'. It is not a matter of standards but of apprehensions of fear. Such fear is not endured by all Australians, but by racially targeted groups.

And there is no reason to limit intimidation to fear of physical harm. Some racist taunts can be very intimidating even if physical harm is not threatened.

It is also ludicrous to stipulate that the law would not apply to words used 'in the course of participating in the public discussion of any political, social cultural, religious, artistic, academic or scientific matter'. With this overbroad exemption, the law would never apply to the most published, public, racially vilifying or intimidating remarks, the very remarks that should be covered unless they are made reasonably and in good faith in the course of genuine public discussion — as the law presently requires.

Parliament has three options: abolish the prohibition of offensive behaviour based on racial hatred, leave the existing law untouched, or ask Senator Brandis to go back to the drawing board. What he has produced is neither fish nor fowl. It's the racial hatred law you have when you don't want a racial hatred law.


Frank BrennanThis is an extract from Frank Brennan's Blackfriars Lecture 'Human Rights, the national interest and the will of the people' delivered last night at Australian Catholic University.

Topic tags: Frank Brennan, racial discrimination, George Brandis



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Existing comments

Alan Borovoy, the founder of the Canadian Civil Liberties Organization who pushed for the creation of human rights commissions in Canada, has become a critic of them. He writes, “You’re running a terrible risk that someone’s thin skin could be the limit of someone else’s free speech.” And it is nonsense to suggest that assessing whether conduct is offensive “could only be made by the judge”, or that ordinary community standards can’t be used. It’s also demeaning of ordinary Australians. Juries decide complicated matters every day, and judges, especially today, have no greater moral perspicacity that your average citizen, often much less. Recently in the US, the Supreme Court deemed opponents of same-sex marriage bigots. In dissent, Justice Scalia was scathing, “By formally declaring anyone opposed to same-sex marriage as the enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.” This self-righteous vilification of anyone who has a different opinion from the judges goes well beyond intolerance and towards tyranny. And the most intolerant of all seem to be those always advocating "rights." Canada got rid of its Section 13 without becoming a haven for bigots. So should we.

Ross Howard | 11 April 2014  

Hear, hear, Ross Howard. Well said. Fr Brennan's article openly and clearly displays the precise flaw with 18(c), i.e. an unquestioning trust in the judicial elite. Fr Brennan would institute a krytocracy, rule by judges. Well Fiona Katauskas might mock the “born to rule“ elite of the coalition. However, what of this elitism from Fr Brennan that we need those "appointed to rule" instead. Those who support 18(c) naively believe that they will never be on the receiving end themselves. They are so convinced of their moral purity that they cannot conceive they would offend any minority worthy of protection. I'm not sure they would be so trusting in one judge's ability to put aside personal biases were they facing a litigation in the courts.

marg | 11 April 2014  

There is an old adage somewhere that 'hard cases make bad law.' The hard case here is Andrew Bolt and he is an illustration of why 18C must not be changed. He can say what he likes in his (Murdoch) column or on his (Murdoch) television program: those he insults do not have the same access to a wide listenership or readership. The law as it stands is a weak, but apparently effective, counter to the right wing shock jocks.

Frank | 11 April 2014  

Shock jocks, Frank, belong neither on the Right nor on the Left, but in the gutter. They are found everywhere, alas. The ABC told us tonight that 88% of us are against changing this law, not because we're bigots but we have some common sense.

Dr Susan Reibel Moore | 14 April 2014  

In advocating the free-speech principles enunciated by the likes of Voltaire, George Brandis is on a sound footing in my view. That said, it is regrettable to see his advocacy founded on the undeserving Andrew Bolt case. Fr Brennan's distinction between the exercise of a right and the exercise of liberty is useful. Many of us enjoy the right to speak freely in a public space and do not want that right lost, but only a few would expect it to extend to expressions that are defamatory or hateful, or interfere unreasonably with the rights and freedom of other people, such as you or me. The judgement in the Bolt case left no doubt that the Aboriginal people he denigrated as frauds were no such thing. The opinions he freely expressed were based on material errors or fact, and expressed in inflammatory and provocative terms. Even though his words caused no direct physical harm, they jeopardised the reputations and threatened the livelihood of the 9 people he named. Having been falsely accused on the public record of being deceitful and fraudulent, their liberty as citizens was put in a state of peril. If the offender does not have the grace to publicly correct the record, they need to be at liberty to seek a mechanism to do so.

Paul Begley | 23 April 2014  

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