The wording of s 18C of the Racial Discrimination Act 1975 (Cth) (“RDA”) is once again the subject of heated political debate, after Liberal Senator Cory Bernardi put forward a motion to rewrite the section. The provision was introduced into Pt IIA of the RDA in 1995, following the passage of the Racial Hatred Act 1995 (Cth). As it currently stands, the provision makes it unlawful for a person to do an act, otherwise than in private, if the act is “reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group of people; and the act is done because of the race, colour or national or ethnic origin” of the person or group of people (RDA, s 18 C(1)). The motion proposed by Senator Bernardi seeks to eliminate the words “offend” and “insult” from the provision, leaving in the words “intimidate” and “humiliate”. This would raise the bar to establish racial discrimination, and correspondingly weaken access to protection from it.

In recent years, our nation’s leaders have repeatedly sought to weaken racial discrimination protections. In 2014, the Commonwealth Attorney-General, Senator George Brandis, proposed a series of changes to the RDA, including the substitution of s 18C with a provision that would make it unlawful, to vilify or intimidate another person or a group of persons in public, The words “vilify” and “intimidate” were given a further restrictive meaning, significantly narrowing the range of actions prohibited by the RDA. However, following widespread public outcry, partially voiced through a national consultation, the proposal was dropped and s 18C remained intact.

Does s 18C violate the right to freedom of speech?

Objections to the scope of s 18C largely emanate from a concern that it unduly restricts the right to freedom of speech and expression. However, the right to freedom of speech is not an absolute right and may be subject to restrictions. Article 19(3) of the International Covenant of Civil and Political Rights (“ICCPR”) provides that restrictions on freedom of speech are permissible if they are provided for by law, are necessary to respect the rights or reputations of others, protect national security or public order, or protect public health or morals. The requirement that the restriction is “necessary” in turn imports considerations of proportionality and least-restrictive measures.

The RDA aims to protect the right to freedom from racial hate speech and discrimination. Such protection is required by arts. 20(2) and 26 of the ICCPR, and arts. 2, 4, 6 and 7 of the International Covenant on the Elimination of Racial Discrimination (“ICERD”). The provisions in Pt IIA of the RDA are proportionate to that aim. As noted by the Explanatory Memorandum to the Racial Hatred Act 1995 (Cth), the provisions do not apply to statements made during a private conversation or within a private home. The Federal Court has also interpreted the words “offend” and “insult” narrowly, with Kiefel J in Creek v Cairns Post (2001) 112 FCR 352 considering the words to be “profound and serious effects, not to be likened to mere slights” (at [16]), and Bromberg J in Eatock v Bolt (2011) 197 FCR 261 deeming the words to involve consequences that are “more serious than mere personal hurt, harm or fear” (at [263]). Therefore, the provisions strike a balance between the right to free speech and the protection of persons from harassment and fear because of their race, colour or national or ethnic origin.

Are provisions such as s 18C required by international law?

The elimination of the words “offend” and “insult” from s 18C would appear consistent with the popular perception of the provisions found in ss 18B, 18C and 18D of the RDA as “racial hatred” laws. It was argued by the appellant in the Federal Court case of Toben v Jones (2003) 129 FCR 515 that the wording of s 18C should be read down to encompass only racial hatred. The appellant submitted that the words “because of race” should be read as “because of hatred of race” or that the act be able to be characterised as an expression of racial hatred.

However, ICERD does not simply require State parties to legislate against racial hatred, but also against racial discrimination more broadly. In that same case, Allsop J noted, in relation to ss 18B, 18C and 18D (at [136]):

The provisions can also be seen as intended to pursue a policy of eliminating racial discrimination and promoting understanding among races (Art 2), prohibiting and bringing to an end by an appropriate means, including legislation, as required by circumstances in Australia, racial discrimination by any person (Art 2, para (d)), eliminating barriers between races and discouraging anything which tends to strengthen racial division (Art 2, para (e)), adopting positive measures designed to eradicate all incitement to, or acts of, racial hatred and discrimination in any form (Art 4), assuring everyone in Australia effective protection and remedies through competent tribunals against any acts of racial discrimination which violate human rights and fundamental freedoms contrary to the Convention (Art 6), and adopting an effective measure to combat prejudices which lead to racial discrimination and to promote tolerance and friendship among racial or ethnic groups (Art 7).

French J approved of these observations in Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105. His Honour noted (at [68]) that, while the words “offend” and “insult” appeared “a long way removed from the mischief to which Art 4 of CERD is directed”, the provisions contained in Pt IIA of the RDA encompass “conduct extending beyond expressions of “racial hatred”, and is “intended to pursue a policy of eliminating race discrimination and promoting understanding among races” – an objective to which States Parties to CERD are committed pursuant to Art 2(ii)”. These observations are also consistent with the recommendation of the Committee on the Elimination of Racial Discrimination that States parties to ICERD declare as offences the dissemination of ideas based on racial or ethnic superiority or hatred; incitement to hatred, contempt or discrimination against members of a racial or ethnic group; and participation in organisations and activities that promote and incite racial discrimination. Thus, the various articles of ICERD require the implementation of legislation and other measures that afford broad protection to members of different racial and ethnic groups.

Implications for Debate on s 18C

The above analysis suggests that s 18C imposes a valid restriction on the right to freedom of speech, and serves to properly carry out Australia’s obligations under ICERD. One potential legitimate amendment suggested by the Australian Human Rights Commission in response to the 2014 public consultation is that s 18C could be clarified so that it plainly reflects the narrow interpretation given to the words “offend” and “insult” by the Federal Court. However, any moves to further limit the range of actions prohibited by the RDA should be carefully considered, keeping in mind Australia’s obligations under international law.