Vice President of Liberty Victoria’s personal submission regarding the “Freedom of Speech (Repeal of s 18C) Bill”

Dear Secretary,

Proposal for a “Freedom of Speech (Repeal of s18C) Bill”

My submission to this inquiry is, in summary, that this proposal is irretrievably wrong-headed and must be abandoned. It should be replaced by principled legislation following a proper public inquiry into the harms done to traditionally persecuted minorities—based not only on race but also on other attributes such as sexual orientation, gender identity, sex and disability—to provide a more robust protection than s18C of the Racial Discrimination Act currently provides against the individually harmful and socially corrosive effects of vilification in the public sphere.

What is wrong with the “bill”

To begin, it is closer to a back of the envelope sketch than a properly considered Exposure Draft. It does not even have a draft Explanatory Memorandum. The government is, however, to be congratulated for requiring this ill-considered scheme to be exposed in this way to the scrutiny of the public. Before I tackle, albeit briefly, the broader issues I wish to note a few specific objections, without in any way wishing to suggest that the “bill” could be made palatable by their correction.

Bad definitions

There is something peculiarly objectionable in the arrogant attempt to use words legislation to have meanings that they do not have in common or dictionary usage. It can only be intended to deceive and mislead the public. It must necessarily lead to misunderstanding of the law and therefore waste time and resources and hinder true access to justice.

The “bill” states “for the purposes of this section” at (2)(a): vilify means to incite hatred against a person or a group of persons

Well no, it doesn’t.

In fact “vilify” is an ordinary English word with a well established meaning. The Macquarie Dictionary[1] , for example, gives its meaning as “to speak evil of; defame; traduce,” and the New Oxford American Dictionary has: “to speak or write about in an abusively disparaging manner.”

The incitement of hatred may be one consequence of vilification, but it is not the meaning of the word, nor a common outcome. This definition, like Andrew Bolt’s unlawful, racially discriminatory articles,[2]  cannot be said to be in good faith.

Likewise with “intimidate,” where the “bill” states at (2)(b):

intimidate means to cause fear of physical harm:
(i) to a person; or
(ii) to the property of a person; or
(iii) to the members of a group of persons.

Well no, it doesn’t. In this case, however, unlike with “vilify,” the definition asserted is part of the meaning of the word.

Since the dictionary definition, however, is:[3]

  1. to make timid, or inspire with fear; overawe; cow
  2. to force into or deter from some action by inducing fear

with no such arbitrary, narrow limitation, it is again calculated to mislead or deceive the ordinary person. Again the “bill” reminds one, in its lack of good faith, of Bolt.

Biased pseudo-objectivity

Subsection (3) of the proposed new section is most peculiar. It is unclear whether it means anything much, but if it does then it seems to be to displace the ordinary legal meaning of the objective test of “is reasonably likely” in favor of one which excludes minority group members from consideration as part of the Australian community. It does not use the term “minority group” but rather the strange locution “any particular group,” perhaps because one “particular group,” namely women, are not in the minority. I speculate that the only community members who do not fall into the “any particular group” category for exclusion will be the coterie of straight, white, christian men of the political Right to which this proposed bill’s progenitors belong. Subsection (3) is a disgrace, if it means anything at all.

In a decent society the correct test is surely the current objective test, with the assistance of a reminder to the trier of fact that the history of discrimination or persecution experienced by members of the group in question must be taken into account. (Thin-skinned, sloppy tabloid journalists may be objects of derision, but they do not form a recognizable class of persons with a history of being subject to discrimination, prejudice or persecution.)

Open slather for bigotry

The most disgraceful subsection of the proposed new section is the “Get Out of Jail Free” card provided by ss(4), the replacement for s18D. It is hard to imagine any foul communication that could not be excused by this blanket endorsement of bigotry, except perhaps the casual speech of disempowered people who do not have the clout to get their words into newspaper opinion pieces or tetchy columns, and thus are the least likely to do the sort of harm that this Part 2A of the RDA is intended to counter.

Ss(4) brazenly replaces the requirement of s18D that conduct to be exempted must be done “reasonably and in good faith.” The failure of Bolt to so act was critical to his being found to have acted unlawfully,4 so of course this bill prefers to wave through those who act unreasonably or in bad faith. The latter terms seem to characterize this “bill” well. It must be withdrawn.

When the Attorney-General fatuously announced to the world that people have a right to be bigots he was right; but he failed to add the vital caveat: but they have no right to harm others by exposing them to the consequences of such bigotry. No law can, nor should attempt to, forbid the holding of prejudiced beliefs or opinions. Acting on those opinions or beliefs to the detriment of others must, however, beunacceptable.

What’s wrong with Part IIA of the RDA?

Not much really, if one sticks to the narrow terms in which it was conceived. The use of “offends” has been much discussed, mostly without understanding. It is clear thatthe meaning ascribed to this word in law, in this context, is far removed from the untutored fantasies of tabloid journalists (and, it must be admitted, of some distinguished retired judges). Furthermore, it has never been the case that the central section 18C is about whether the thin-skinned, or anyone, “take offence”.

It might be sensible to put in a legislative note into the next update to say how the Courts have interpreted “offends” and leave it at that. The law could be clearer on the nature of the harms that can be done by prejudice motivated vilification, and the evidence for this. Indeed it would be better if it focused on the harms rather than the manner of causing them.

But the main problem with s18C, and Part IIA generally, is that it does not deal with other forms of prejudice-motivated harm caused by actions in the public sphere, including by written or spoken words.

In particular, it should cover homophobic harassment as well as racist harassment. Here I use harassment to refer to the sort of detriment on the basis of prejudice which is unlawful on every attribute in the “areas” covered by anti-discrimination laws in the States and Territories, such as employment, education or the provision of goods and services, whether or not it involves or is caused by words written or spoken. Such prejudice-motivated harassment should be made unlawful whenever there is foreseeable harm, and subject to the usual equal opportunity mechanisms of conciliation in the first instance.

I attach as an appendix to this submission a copy of a submission made on behalf of Liberty Victoria to the Eames Inquiry into prejudice motivated crime to further explain the points made above.

Thank you for the opportunity to make this submission on the proposals re s18C of the RDA. Please note that I make this submission in a personal capacity and it is not connected with my position as a vice-president of Liberty Victoria and may not reflect the views of Liberty Victoria. My submission is public and I am happy for it to be published.

Yours sincerely

Jamie Gardiner

  1.  Both first edition (1981) and current (6th ) edition.  []
  2.  Eatock v Bolt [2011] FCA 1103  []
  3.  Macquarie Dictionary, 6th  edition  []

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