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Published November 12, 2013
By John Alizzi.
It’s been on the cards for some time. Mooted as the very first legal reform of the new Coalition Government, changes to a key section of the Racial Discrimination Act – section 18C – are not long away. The lately maligned section dates to 1995. Both major parties supported enactment. Fifteen years passed.
Then, Herald Sun columnist Andrew Bolt contrived to breach the section in 2011 with stinging, and spectacularly error-ridden, personal attacks on 18 Indigenous Australians. No thought of cutting loose their star columnist, the Herald Sun made him their headline as Bolt opened up on the front page of the country’s biggest newspaper about being “silenced”.
Immediately, the Liberal Party pledged to change the laws. The day after the decision was handed down by Federal Court Justice Mordy Bromberg, then-Opposition Legal Affairs Spokesman George Brandis said:
We don’t blame the court. The judge was merely applying the words of the statute to the facts of the case before him. We think it’s a terrible statute… We would not like to see the law remain in its current form as currently interpreted.
Ever since, Liberal Party spokespeople have periodically confirmed the promise. While all the details of the planned changes are not yet known, the central targets are clear. In an August 2012 speech before the Institute of Public Affairs, Mr Abbott promised:
The Coalition will repeal section 18C in its current form. Any prohibitions on inciting hatred against or intimidation of particular racial groups should be akin to the ancient common law offences of incitement and causing fear.
The wording of a Coalition pamphlet released some months before the September 2013 election reads to a similar effect:
Prohibitions on inciting racial hatred or intimidation of particular groups should be focused on offences of incitement and causing fear but not a prohibition on causing offence.
The word “offend” is sure to go, along with “insult”. Beyond that, time will tell. But to really understand the debate, it’s necessary to go back 12 months. Between the 2012 IPA speech and the 2013 election, a major flash point was Labor’s own plans for legislative change – the so-called Consolidation of anti-discrimination legislation. Debate surrounding it also came to focus on the words “offend” and “insult”.
In 1975, the Fraser Government passed the Racial Discrimination Act, beginning a gradual trend of successive governments passing legislation dedicated to prohibiting discrimination on grounds other than race: sex in 1984, disability in 1992 and age in 2004. These and other moves have seen Australia gradually implement its obligations under international human rights law. They mean that, almost 40 years later, a number of distinct pieces of legislation exist, all addressing discrimination and equality.
In late 2012, the process of bringing together the different anti-discrimination laws into one piece of legislation – to “simplify and clarify” what the Law Council of Australia has called “a confused and fragmented scheme”– was well under way. In November, a draft consolidated law was released. Submissions commenting on it were invited and the draft law was referred to a Senate Committee for an inquiry and report. By the 21 December 2012 submissions deadline, over 3000 had been received. Public hearings were held in early 2013, and the Senate Committee provided its report and recommendations on 21 February 2013. Importantly, the draft laws adopted the wording of section 18C, using the phrase “offends, insults or intimidates” to define discrimination in the sense of unfavourable treatment.
In the meantime, the media – taking up the Coalition argument arising out of the Bolt decision – subjected the draft laws to a prolonged and almost unanimous critique. To put that critique into its proper context, it is worth doing something that possibly no commentator or lawmaker did (or has bothered to do in the past two years): read the Bolt case. A few interesting things are learnt by doing so.
The Bolt Case: an opportunity missed
It is the job of courts to interpret legislation – Senator Brandis made that clear enough the day after the decision in Bolt’s case. That is not always an easy task. Words used are not interpreted in a vacuum. Attention is given to the context of their use and the law’s general purpose, among other considerations.
In approaching the task of interpreting the words “offend, insult, humiliate or intimidate” in Bolt’s case, Justice Bromberg noted:
“The ordinary meaning of these words is potentially quite broad. To “offend” can mean to hurt or irritate the feelings of another person” .
He went on to write that section 18C relates to the public purpose of a “socially cohesive society” and is therefore “concerned with consequences it regards as more serious than mere personal hurt, harm or fear” . Further, in comparison with the other three words, he wrote “the word ‘offend’ is potentially wider, but given the context, “offend” should be interpreted conformably with the words chosen as its partners” . In fact, the judgment used “offended” as shorthand for all four words, suggesting the thresholds for each are not significantly different . Justice Bromberg explained this by agreeing with previous judgments of the Federal Court stretching back a dozen years, which held that conduct caught by the section had to have “profound and serious effects, not to be likened to mere slights” .
Finally, it was said that acts “reasonably likely” to cause one of the four reactions “are not reactions likely to be caused by the intolerance of the people affected” . That is another way of saying the court asks itself whether a “reasonable member of the group” would have had the same reaction  - a common sense test, not one based on a particular individual’s subjective feeling.
This all means that you cannot walk into court, say you are “insulted” or “offended” and expect to win a case. Courts go through a battery of tests that belie the simplistic impressions given by those two words.
The outpouring against the words “offend” and “insult” culminated at the time of the mooted Consolidation. Starting with the public submissions, misinformation was rife.
The cardinal error is the idea – clearly contradicted by the statements of Justice Bromberg – that the words “offend” and “insult” are low-threshold, purely subjective notions. Examples abound. The author of Submission 142 writes: “Unfavourable treatment includes conduct that ‘offends’ or ‘insults’. This is a purely subjective criteria.” Similarly, Submission 56: “Surely insult and offence are very subjective words”. Submission 65: “If the proposed legislative changes discrimination [sic] to include offence or insult there is no way to govern it. It reduces the law to subjective whim …”. Subjective, subjective, subjective is the complaint. And one more, Submission 83: “It is so easy for misunderstandings to occur even between people of the same cultural background, let alone those from different backgrounds or with a different worldview.” Yes, misunderstanding is easy. But misunderstanding cannot breach section 18C.
Putting the point somewhat more insightfully, the author of Submission 82 says: “By widening discrimination to include offence or insult, anything can come under its purview as someone can choose to take offence to anything they like.” In the same vein, Submission 78: “To be offended is a choice of the receiver of the perceived insult/offence”. Choice? The words may suggest so in ordinary parlance, but, as Justice Bromberg made clear, not in the section 18C sense: intolerance can’t be the basis of a successful claim. The same author’s solemn concern that the proposed consolidation would outlaw “taking the piss” was therefore misguided. None of the submissions even appear to contemplate the words “offend” and “insult” were already law, in the form of section 18C.
Sure, the Senate are going to get submissions from concerned, but uninformed, people. Perhaps the assumption that the words bear their ordinary meaning is a natural one. Either that or they got the impression from somewhere else. Over 1,000 submissions simply contained the same short introductory note followed by the same quote from an article that appeared in The Australian on 11 December 2012. The author, James Spiegelman, the former Chief Justice of the Supreme Court of NSW, claimed: “The Bill would impose unprecedented restrictions on freedom of speech, making it unlawful to offend people”.
The strangeness of this quote is, again, that the word “offend” is already in anti-discrimination legislation – it’s not “unprecedented”. Nor, for the same reason, would it “change fundamentally the ability for political debate in this country,” as NSW Premier Barry O’Farrell suggested. Even a former High Court Justice in Ian Callinan criticised the proposed law as “such a silly one that it will turn everyone into offenders” – his way of making the “subjectivity” or low-threshold point. This is a point that would only be true if one applied a common interpretation of the word “offend” that, as demonstrated, the courts don’t use.
The words “insult” and “offend” should be removed from anti-discrimination law.
But only because of the impressions they give.
Article after article from the media misunderstood the draft law, using the word “offend” in its everyday sense, arguing with admirable fervency against an apparition. Then suddenly the torrent stopped. The Herald Sun reported, in a tiny article tucked away on an insignificant page, that the Government had withdrawn the draft law and that the newly installed Attorney-General, Mark Dreyfus, noted curtailing freedom of speech was not the aim. And that was that.
Apart from the fusillade of misunderstanding, and just as significantly, of the 595 public submissions available on the Senate website, a review of a large sample makes crystal clear that the media focus did not even begin to reflect the diversity of opinion in the submissions – positive and negative. There were some complex issues to be worked out, as evident in the submission of an organisation like Victoria Legal Aid (Submission 346), which deals with over 1,000 discrimination cases a year. But we didn’t hear of them. The media focused largely on the definition of discrimination – a word or two. Associate Professor Beth Gaze, a discrimination law expert at the University of Melbourne, suggests the debate was thereby “diverted”. It was diverted by apparitions.
The key to the confusion is that the Bolt case was so poorly understood. If commentators cared to read the 150-page judgment – rather than the six-page “summary” – they would have found the passages that explain the meaning of “insult” and “offend”. That fundamental misunderstanding is the failure to grasp that words – such as “insult” or “offend” – when used in legislation, mean what the judgments of courts say they mean. That isn’t always the ordinary, dictionary meaning of the terms. The two words “insult” and “offend” have an established technical meaning – a meaning that is not weak and not purely subjective. The Bolt judgment makes this perfectly clear. It represents a missed opportunity for the media – and through them the general public – to have understood something about Australian anti-discrimination law. If that had happened, the true nature and significance of both the proposed Consolidation and changes the Coalition are about to make would be known. Instead, we’ve had self-absorbed freedom fighters shadow boxing. It might have sold some papers, though – both broadsheet and ballot.
The Bottom Line
Now, to the upcoming amendment of section 18C. Attorney-General Brandis in recently justifying the move said “you cannot have a situation in a liberal democracy in which the expression of an opinion is rendered unlawful because somebody else … finds it offensive or insulting.” Right. You cannot. But that situation is not what we have. The Attorney-General’s line is both common sense and the latest episode in a collective hallucination.
In the end, the words “insult” and “offend” should be removed from anti-discrimination law. But only because of the impressions they give. They are not distinctively dangerous to freedom of speech and they are not necessary for dealing appropriately with racial discrimination. They are, in that sense, doubly misleading. For the fact that the words “insult” and “offend” to have so utterly confused the media, political groups, politicians and even some of the great modern legal minds is reason enough to send them into the wilderness as scapegoats.
Anything more than the removal of those words will require respite from fantasy-land, and some actual justification. There’s no mandate for broader change, and at the minimum consultation is needed. We know what the Coalition want to do (or be seen to be doing) for freedom of speech. The question remains: what will they do to ensure that all Australians are equally free to participate in society? After all, that’s another situation a true liberal democracy cannot do without.
John Alizzi is an editor at Right Now