Getting it wrong on hate speech

I WANT to reply to Tim Soutphommasane on why, in his opinion, everything is just hunky-dory with our hate-speech laws.

I WANT to reply to Tim Soutphommasane and his recent article in The Age on why, in his opinion, everything is just hunky-dory with our hate-speech laws, meaning section 18C of the Racial Discrimination Act.

I think Soutphommasane is plain out wrong on an important matter of fact that undergirds his argument - and anyway, his moral compass on this issue isn’t an attractive one.

Soutphommasane, who was a Labor Party appointee to the Australian Human Rights Commission (he worked on Kevin Rudd’s 2007 election campaign), and who takes home something over $300,000 a year, starts his article by informing us there is “considerable misunderstanding” and “alarming confusion” about how our hate-speech laws operate.

Personally, I think I understand how they work pretty well. But what Soutphommasane really means soon becomes clear. He means people who disagree with him are confused.

Later in his article, Soutphommasane makes a remarkable assertion. He says: “The section isn’t about protecting hurt feelings. An act is only unlawful if it is objectively demonstrated it is reasonably likely to cause ‘profound and serious effects’, as opposed to ‘mere slights’.”

The quotes are because Soutphommansane is himself quoting someone else, and I assume he is quoting from the judgment in Eatock v Bolt at paragraph 268.

This was the case that was brought against columnist Andrew Bolt.

This is remarkable, because any lawyer who has read Justice Mordecai Bromberg’s words in that leading (and in my view rather appalling) judgment will know that describing the section 18C test as one that only triggers liability if some “objectively demonstrated” (Soutphommasane’s words, above) hurdle is overcome is at best highly misleading and at worst plain out wrong.

Bromberg reads section 18C as calling for “an assessment of the reasonably likely reaction of the person or people within the group concerned (meaning the self-perceived victims bringing the lawsuit)” (paragraph 241); and that the test is to analyse the impugned speech “from the point of view of the hypothetical representative in relation to the the group of people that were offended” (paragraph 250).

In no way is this an “objective test” of offence or insult or humiliation. At the most it is a weird and bizarre sort of “objectify up the group of people complaining” test.

Indeed, it was Bolt himself, as Bromberg explicitly notes at paragraph 253, who argued for the test to be “an objective assessment of community standards” and it was this test that Bromberg categorically rejected.

So after this leading case it simply is untrue to claim or imply there is an objective test undergirding our section 18C hate-speech laws.

No, the test is some victim group-specific, hypothetically constructed mishmash that seems to involve taking the self-proclaimed victims and creating some “hypothetical representative” test, whatever that means.

And whatever it is, it assuredly is not what we normally mean by an objective test that requires “objective demonstration”.

Now of course one might well claim, as I did repeatedly after the Bromberg judgment, that the judge got this horribly wrong.

But I don’t actually recall Soutphommasane manning those barricades with me back then. So I’m not at all sure what it is he is now claiming.

Indeed, it seems to me he has his facts wrong here. And that is more remarkable given that he appears to be well aware of the Eatock v Bolt judgment, given his quoting of Bromberg’s “profound and serious effects” test only a dozen or so paragraphs after where the judge rejects any and all objective tests.

But let’s say you think this is all quibbling. Soutphommasane is no lawyer. Whatever big government quango he may be on, we don’t really expect him to parse the words of judges in leading cases.

And if he misleads on what the test actually is for hate-speech liability in Australia, what matters more is his overall gut feeling about the value or otherwise of hate-speech laws.

Fine. I prefer the big-picture stuff. But here we find things are even worse, that Soutphommasane’s liking for these hate-speech laws is premised on a very pessimistic view of his fellow citizens - a pessimism that undermines any full-blooded support for democratic decision-making.

The good doctor does not buy into the view “that good speech can overcome bad speech”. He argues that such thinking, of the sort most powerfully articulated by the great liberal philosopher John Stuart Mill, “is naive optimism”.

I beg to differ. As I have said many times, there are no hate-speech laws of any sort in the United States. Are Jews and Muslims and others there less well-integrated and less possessing of dignity than in, say, France with its hate-speech laws? Or anywhere else in the democratic world?

Maybe Soutphommasane avoids going to the US, given that in his view “injustice breeds” in jurisdictions without hate-speech laws. Or maybe comparisons with the US just aren’t your cup of tea. So let’s try Canada.

The federal parliament there last year repealed the Canadian hate-speech laws that were analogous to our section 18C civil liability laws, which Soutphommasane thinks are holding back the flood of racism and who-knows-what here.

So how has Canada gone these past few months since the repeal? Afraid to travel there?

And somehow Australia went for nearly a century without these laws. No doubt racism was rampant the whole time.

Come off it. This is all at core aristocratic mush that is premised on the view that you can’t trust secretaries and plumbers and average Joes to see through the idiocies of ranting neo-Nazis, however much you can no doubt trust credentialled philosophers and those on six-figure salaries working on government quangos.

I think that sort of essentially anti-democratic (oops, I mean not succumbing to “naive optimism”) outlook simply does not stand up to scrutiny. And it ignores how all laws are inevitably over-inclusive, how they expand to capture speakers not originally intended to be covered by them.

Soutphommasane is to my mind also wrong in claiming this law “has worked as it was intended to work” - I don’t think it was ever intended to cover the Bolt type of situation.

And it ignores how the government agencies charged with overseeing such laws, here and in Canada, become havens of speech-restricting world views.

As I said, I’m no Australian Human Rights Commissioner, for which I give daily thanks. But this particular one paints anything but an attractive case for hate-speech laws, which is not surprising as all such cases rest on such dreary views of one’s fellow citizens.

James Allan is Garrick professor of law at the University of Queensland.