Troppo author and frequent commenter John Walker asks:
The Bolt case was just one case- is there much information about how 18C has been applied, on a wider scale.
Its pretty hard to judge whether there is a problem needing changes to the law , or not, on the basis of just one case. Do you have any info re other cases and judgements?
Fortunately, the answer is yes. Section 18C of the Racial Discrimination Act 1975 was introduced by the former Keating Labor government in 1994. In 2004 Deakin University legal academic Dan Meagher wrote a reasonably comprehensive review of its first decade of operation in an article titled “So Far So Good?: A Critical Evaluation of Racial Vilification Laws in Australia“. I almost completely agree with his analysis and opinion, and so rather than reinvent the wheel I will simply reproduce edited extracts from his article with some relatively brief comments of my own at the end (although the whole of Meagher’s article is worth reading if you have time).
In essence, Meagher argues (and I agree) that racial vilification laws are needed, but that the current proscription of words which would be “offensive”, insulting” or humiliating” to reasonable members of a targeted race is much too vague, and consequently potentially has an unacceptably chilling effect on democratically essential free speech. Similar conclusions have been expressed by a range of commentators well before the Bolt case. This is not just a confected controversy beaten up by Abbotistas and Murdoch minions.
Whilst there is a need for effective racial vilification laws in Australia, the current laws lack sufficient precision and clarity in key respects. Of particular concern are the amendments made by the Racial Hatred Act 1995 (Cth) (‘RHA’) to the Racial Discrimination Act 1975 (Cth) (‘RDA’) and the ‘free speech/public interest‘ exemptions found in the RDA and the racial vilification laws of New South Wales, South Australia, Australian Capital Territory, Queensland, Victoria and Tasmania. An incoherent body of case law has developed as a consequence, where too much is left open to the decision-maker in each individual case. Many judgments are often little more than a series of findings of fact rather than reasoned pronouncements of the law. It has left the law in a state of unprincipled fluidity, where the good faith but ad-hoc assessment by individual judges and administrators of subjective, value-laden concepts determines controversies not the application of reasonably precise and knowable legal standards. This is problematic for a number of reasons. They will be detailed shortly.
But first it should be noted that indeterminacy in the law is not unique nor is precision and clarity always a virtue. Timothy Endicott has persuasively argued that vagueness in the law is on occasion unavoidable and sometimes desirable. However, what remains centrally important is that ‘the law must be capable of guiding the behaviour of its subjects’. In the area of racial vilification however there are compelling reasons why enhancing the precision and clarity of legislation is desirable.
Firstly, and most importantly, is the capacity of indeterminate racial vilification laws to unreasonably interfere with or pre-emptively chill the legitimate speech and communication interests of others. Whilst broad-ranging defences (the norm in Australian law) may allay some of these speech and communication concerns, this species of indeterminacy in turn has the capacity to erode the efficacy of such laws by failing to provide a remedy or meaningful protection to victims of racial vilification. Consequently, the primary goal of racial vilification laws in Australia — to regulate racial vilification without curbing legitimate public communication — is compromised when the laws themselves lack sufficient precision and clarity. Improving their precision and clarity would make these laws more accessible and, in this instance, strengthen the rule of law. With a firmer understanding of their legal rights and obligations the citizenry can plan their communicative conduct accordingly. This has an added importance with citizens now increasingly willing and able to seek legal redress for racial vilification.
It has resulted in a body of judicial and quasi-judicial decisions that often lack a coherent, underpinning principle.
Secondly, laws which ‘leave too much to be decided by persons other than the people’s representatives’ can be rightly criticised as undemocratic. This is not to suggest that reserving a measure of discretion for decision-makers in this area is objectionable. Indeed it is both inevitable and desirable with racial vilification laws as explained below. It is problematic however when the putative legal standards contained in a law provide little interpretive guidance in most cases to the relevant decision-maker. It is undemocratic because judges and administrators are, in effect, exercising legislative power by determining the substantive content of the laws they are to apply. This argument suggests that courts should limit ‘themselves to the accurate application of general rules, rules which should be clear, precise and empirically applicable expressions of the political will of the people’s representatives.’ It ‘is democratic in that it affirms that the source of these authoritative rules is empirically identifiable institutional acts which are the outcome of democratic procedures’ not the subjective conceptions of justice of judges and administrators articulated on a case by case basis. My analysis will show that too often the application of racial vilification laws in Australia has exhibited this undemocratic quality. Consistent with democracy and the principle of popular sovereignty that underpins the Australian Constitution, legislative power ought to be exercised by our elected not unelected representatives. Moreover, Geoffrey de Q Walker has noted that when ‘law is simply a series of patternless exercises of state power … the outcome of any encounter with government can no longer be predicted and equality before the law is also lost.’
Thirdly, laws which lack sufficient precision and clarity obfuscate and complicate the role of those public officials charged with their interpretation and execution. For example, this may manifest as an unwillingness on behalf of prosecutors to mobilise indeterminate criminal racial vilification laws where the higher standard of proof required compounds the problem of legislative imprecision. In the long-term, citizens (including public officials) may accord less respect to such laws which can undermine their efficacy, enforceability and ultimately their legitimacy.
But the concept of racial vilification is hard to pin down. Not least because reasonable minds will differ as to what level of racist conduct ought to constitute vilification for legal purposes and how one can determine with some predictability when that harm threshold is reached. It is a concept with a subjective component meaning that some degree of indeterminacy will necessarily characterise racial vilification laws. Indeed, it is no bad thing that decision-makers in this area have a level of discretion, so long as sufficient criteria exist to guide the exercise of that discretion. This guards against arbitrariness. It is a complex, emotive and delicate area where free speech and other legitimate concerns may be trammelled if the laws are enforced in a mechanistic or unthinking manner. Moreover, laws are more likely to be respected and therefore effective when applied, so far as possible, in a just as well as principled manner. …
The critical problem with s 18C is that its key words and phrases are sufficiently imprecise in both their definition and application as to make the putative legal standards they embody largely devoid of any core and ascertainable content.
The critical problem with s 18C is that its key words and phrases are sufficiently imprecise in both their definition and application as to make the putative legal standards they embody largely devoid of any core and ascertainable content. Of most concern are the phrases ‘offend, insult, humiliate or intimidate’ and ‘the act is done because of the race … of the other person’. The former phrase, in particular the meaning of the words ‘offend’ and ‘insult’, is so open-ended as to make any practical assessment by judges and administrators as to when conduct crosses this harm threshold little more than an intuitive and necessarily subjective value judgement. The fact that an act must be ‘reasonably likely’ to cross this harm threshold, though importing an objective test of liability, does not cure the definitional indeterminacy of these words that a decision-maker must objectively apply. Moreover, these words and the harm threshold they establish may capture a range of conduct which was arguably never intended by the Parliament to be regulated; an important point to which I shall shortly return. …
Indeed, with the possible exception of cases involving extreme racist conduct, the indeterminacy of s 18C is such that too many determinations could comfortably and justifiably have been decided the other way. This should come as no surprise as the legal standards in s 18C are sufficiently malleable to allow a judge or administrator to employ them to facilitate a decision which accords with their intuitive conception of what ‘justice’ requires in that case. It has resulted in a body of judicial and quasi-judicial decisions that often lack a coherent, underpinning principle.
The indeterminacy of the harm threshold has become manifest in the case law in two ways. Firstly, in a series of s 18C determinations the judge or administrator has, ‘effectively elevated the threshold by emphasising the concept of “hatred”. Secondly, in a smaller but still significant number of cases there has been a finding that s 18C has been offended without any harm threshold analysis or reasoning whatsoever. …
But it is clear enough that one can racially insult or offend another without ever expressing or intending hatred for that person’s race or ethnicity. Consider a claim by a politician that ‘[h]ome invasions are ethnically based, Lebanese or Iranian, not Australian.’ Or when Australian cricketer Darren Lehmann called a Sri Lankan opponent ‘a black cunt’ upon dismissal. These racial epithets no doubt offended and insulted the relevant victims and, moreover, may well be reasonably likely to elicit the same response from most members of the relevant race or ethnic group if not the wider community. It is submitted, however, that in both cases the conduct of itself did not amount to an expression of racial hatred. These words do not suggest an intense dislike or detestation of that person(s) on account of their race or ethnicity. Arguably, this sort of low-end racist conduct does not constitute the kind of extreme racist behaviour that Parliament intended the RHA to regulate.
Moreover, judicial and administrative attempts to define words like ‘insult’ and ‘offend’ with a degree of precision become a circular and question-begging exercise. The best that can usually be done is to outline the Macquarie and/or Oxford English Dictionary definitions of the terms as Hely J did in Jones v Scully. But these dictionaries define the words using synonyms, which is of little use when the task of the decision-maker is to elucidate and then apply a reasonably precise legal standard. It simply raises the same definitional question for the synonyms used, and so on. For example, the difficulty in ascribing a clear meaning to the word ‘insult’ was illustrated by the 1972 House of Lords decision in Brutus v Cozens. The case concerned the interpretation of s 5 of the Public Order Act 1936 (UK). Lord Reid wrote:
We were referred to a number of dictionary meanings of ‘insult’ such as treating with insolence or contempt or indignity or derision or dishonour or offensive disrespect. Many things otherwise unobjectionable may be said or done in an insulting way. There can be no definition. But an ordinary sensible man knows an insult when he sees or hears it… Insulting means insulting and nothing else.
The amendments proposed by the Abbott government address the defects identified and discussed by Dan Meagher, in that the indeterminate words “offend”, “insult” and “humiliate” are removed and replaced by the word “vilify”, which is defined as meaning “to incite hatred against a person or a group of persons”.
This strikes me as an appropriate amendment which will improve the certainty and effective operation of the Act and arguably more accurately reflect the enactment intention of the Keating government which, as Meagher argues, was only ever to prohibit words which did indeed incite race hatred rather than to sanction lower level offensive or insulting language.
[T]he problem does not lie in the scope of proscribed language but rather in the breathtaking scope of the exemptions currently proposed.
However, that is not to suggest that the Brandis amendments are anything like acceptable in their present form. Nevertheless, the problem does not lie in the scope of proscribed language but rather in the breathtaking scope of the exemptions currently proposed. The proposed new subsection 4 reads as follows:
(4) This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.
As you can see, this provision would effectively exempt just about any public expression of race hatred in just about any field of discourse. In other words, it would make the hate speech provisions of the Racial Discrimination Act effectively meaningless.
What should occur is that the Parliament should preserve the existing exemption provision found in section 18D. It exempts words in a much narrower range of public discourse, and only where they meet the test of being “done reasonably and in good faith”. However, those words “reasonably and in good faith” are themselves quite indeterminate and in need of clarification, as Meagher also discusses. Nevertheless, if the Coalition ends up with an exemption provision more or less like the current section 18D (albeit with criteria specified for assessing reasonableness and good faith), then in my view these amendments would not only be appropriate but a significant improvement on the present regime.