18C ruling must not be the final word

THE decision not to proceed with the amendment of section 18C of the Racial Discrimination Act 1975 is not the end of the matter.

THE decision not to proceed with the amendment of section 18C of the Racial Discrimination Act 1975 has been received with not only disappointment but also a significant degree of displeasure by the free speech lobby. It is not the end of the matter.

Section 18C makes speech relating to race, colour or national or ethnic origin unlawful where it is reasonably likely to “offend, insult, humiliate or intimidate”.

The exempting section 18D provides that a “fair comment’’ on any event or matter of public interest is not unlawful if the comment is an expression of a “genuine belief” held by the person making the comment, and it is made “reasonably and in good faith”.

The government’s election promise to repeal section 18C flowed from the controversial ruling by Justice Mordecai Bromberg against columnist Andrew Bolt. This was on an application by a person the judge described as a “fair-skinned Aborigine’’.

She was one of several whom Bolt argued were pretending to be Aboriginal so they could access benefits. The judge found the articles were reasonably likely to have offended, insulted, humiliated or intimidated those named. Finding errors of fact, distortions of the truth and inflammatory and provocative language, he declined to rule they were fair comment and thus exempt.

Another judge could have come to different conclusions on the facts; for example, that there was not a sufficient nexus between the articles and the applicant’s race. Merely discussing or mentioning race is not in itself sufficient to come within section 18C. A powerful opinion piece on, say, native title, immigration, intervention or welfare may not necessarily be speech about race.

While finding a nexus between the articles and race, another judge might not have found it “reasonably likely to offend’’. Yet again, another judge might have found that the articles represented a genuine belief held by Bolt, made reasonably and in good faith. The judge might have agreed that Bolt’s mistakes were not such as to deny him the defence, or that he should not be marked down for “inflammatory and provocative language”.

The Bolt decision could well represent a high-water mark in the interpretation of section 18C, as well being a particularly minimalist ­interpretation of the 18D exemption. These provisions are contained in part IIA of the act, inserted by the commonwealth ­Racial Hatred Act 1995.

This went further than previous state legislation and proposed federal legislation. For example, the 1992 bill had used the words “hatred, serious contempt or severe ridicule”. Recklessness or intent was required. But with the 1995 legislation, acts were made unlawful where they were reasonably likely to cause offence, a much lower standard.

Trying to narrow the legislation, Bolt pointed out the heading to part IIA was “Prohibition of offensive behaviour based on racial hatred’’. From this, he argued that a respondent should be shown to exhibit racial hatred, which he denied. Although a similar argument was rejected by the full Federal Court in 2003, this was before the expansive decision in the Bolt case and the detailed public discussion and concern resulting from this.

It is true that the lobbies opposing change were able to put in more submissions against the exposure draft released by Attorney-General George Brandis. These hardly measure public concern about the Bolt case. Unlike the various lobbies that put in submissions, the rank and file are neither organised nor subsidised to make submissions. Nor should it be thought that this concern is limited to right-wing Tories. It probably extends to traditional Labor supporters, as well as those in many immigrant communities.

This public concern would justify a reconsideration of the interpretation of the section and exemption, probably at the highest level — the High Court.

One question should be whether the requirement that the speech be reasonably likely to ­offend is to be determined just among the complainants. Or should it be judged objectively by the standards of the reasonable person? Another relevant issue is whether the legislation is constitutionally valid or whether it should be read down to ensure its constitutional validity.

As interpreted in Bolt, section 18C is more about promoting multiculturalism and racial diversity than acting on racial discrimination.

The relevant treaty, the Convention on the Elimination of All Forms of Racial Discrimination is only about racial discrimination. Does the external affairs power authorise this?

And if the legislation is to be given a wide interpretation adopted by Justice Bromberg, is it still consistent with the freedom of political communication that the High Court has found to be implied in the Constitution? It can be argued that on this interrelation, section 18C with 18D goes beyond being reasonably appropriate and adapted to serve a legitimate end. It could be said that this is not compatible with the maintenance of government prescribed under the Constitution.

Even if the section is not to be amended, the Bolt decision is not and should not be the last word.

David Flint’s latest book, with Jai Martinkovits, is Give Us Back Our Country (Connor Court, second edition, 2014).