Would the High Court uphold sections 18C and 18D of the RDA on constitutional grounds?

Section 18C of the Racial Discrimination Act (Cth) is a perennial favourite topic for right wing politicians, and conservative pundit Andrew Bolt has never stopped moaning about it ever since he ended up on the wrong side of a Federal Court decision Eatock v Bolt in 2011.

But there is also some respectable legal opinion questioning the constitutionality of section 18C. The most recent is an article by barrister Louise Clegg in the Australian Financial Review a couple of days ago.  She fearlessly asserts that the High Court is likely to strike it down when or if a suitable case comes before it.  She claims that High Court Chief Justice Robert French gave a thinly veiled warning to that effect in a speech late last year.

I’m nowhere near that certain, but I certainly have some doubts about the constitutionality of section 18C. I mused about them in a long and rather rambling post about 5 years ago, shortly after the Eatock v Bolt decision.   The occasion was a speech given at CDU  by then Federal Court Chief Justice Patrick Keane, who like French CJ also expressed some careful concerns about proscribing political speech which was merely “offensive” or “insulting”. Keane too is now a Justice of the High Court. His speech was titled “Sticks and Stones May Break My Bones but Names Will Never Hurt Me”. Despite that title and his expressed concerns, Keane CJ (as he then was) suggested that perhaps prohibiting free speech which undermined “human dignity” might be democratically (and presumably constitutionally) acceptable. He drew inspiration from American jurisprudential scholar Jeremy Waldron, who advocates human dignity as a suitable constitutional touchstone for courts to employ in reconciling and prioritising competing rights.

The problem with the notion of “human dignity” and its infringement as a determinant of whether political speech can properly be prohibited in a democratic society where political communication is constitutionally protected (e.g. Australia and the US)  is that it is potentially just as indeterminate as section 18C in its current terms.  In one sense it is a classic example of what Julius Stone called a “category of illusory reference”. A judge who disagrees subjectively with a particular exercise of free speech rights may have no more difficulty in labelling it a breach of “human dignity” than labelling it an act which “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”.

In any event, I thought it might be worth reproducing my musings about the constitutionality of section 18C over the fold:

Bolt deservedly lost [in Eatock v Bolt] as a result of his reckless disregard for factual accuracy. He would probably have lost in defamation proceedings as well, and for similar reasons.  However, had he got his facts closer to correct, engaged in some rudimentary fact-checking beyond a quick Google search, and given his targets an opportunity to respond before publication, he would have had a good defence to defamation proceedings on the so-called Lange extended defence of qualified privilege.  And yet, at least on Bromberg J’s reasoning, which held that Bolt’s nasty and aggressive tone was also an element in denying his words exemption under s 18D,  Bolt may well still have been held in breach of s 18C in those circumstances.  That strikes me as both constitutionally and democratically problematic.  As the High Court’s unanimous judgment in Lange v ABC explained:

In Theophanous, the Court held that, once the publisher proved it was unaware of the falsity of the material, had not acted recklessly, and had acted reasonably, malice could not defeat the constitutional defence. But once the concept of actuating malice is understood in its application to government and political communications, in the sense indicated, we see no reason why a publisher who has used the occasion to give vent to its ill will or other improper motive should escape liability for the publication of false and defamatory statements. As we have explained, the existence of ill will or other improper motive will not itself defeat the privilege. The plaintiff must prove that the publication of the defamatory matter was actuated by that ill will or other improper motive. Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff’s onus of proof of this issue.

The constitutionality of sections 18C and 18D have only been considered in a couple of decisions, namely Jones v Scully and Toben v Jones.  Neither decision contains any real analysis of the question.  The High Court has not ruled on it.

Bromberg J appears to have set a higher bar for a defendant in RDA proceedings than that which the High Court regarded as constitutionally appropriate for defamation proceedings in Lange. Given that both are civil causes of action and both constrain political communication, this seems a somewhat peculiar result  In that sense at least it’s a pity that News Ltd has decided not to appeal in Eatock v Bolt.  Would the High Court regard ss 18C and 18D as reasonably “appropriate and adapted” to a purpose within Commonwealth power (the validity test the Court sets for laws which incidentally burden constitutionally-protected speech)? On the one hand the provisions render a successful defence more difficult than in defamation, at least when the communication is not for a “genuine academic, artistic or scientific purpose”.  On the other hand the available remedies (retraction or apology, injunction etc) are more restrained and restorative in nature than the punitive damages-based approach of the common law. Certainly Waldron regards Australia’s regime as appropriate and adapted:

The most generous such provision I have seen is in the Australian Racial Discrimination Act, which says that its basic ban on actions that insult, humiliate, or intimidate a group of people done because of their race, color, or national or ethnic origin “does not render unlawful anything said or done reasonably and in good faith: . . . in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest.” The purpose of these qualifications is precisely to limit the application of the restriction to the bottom end [of the spectrum of hate speech].

I’m not at all sure that can still be said in light of Bromberg J’s reasoning. Despite the High Court’s warning in Lange that “the vigour of an attack or the pungency of a defamatory statement, without more” is not enough for a plaintiff to succeed, Bromberg J appears to have take just such an approach in finding a breach of the RDA:

The tone and gratuitous nature of both the specific and general comments made contributed to the disrespectful manner in which the people in the ‘trend’ were dealt with and contributed to the intimidatory effect of the articles.

The extent of mockery and inflammatory language utilised by Mr Bolt to disparage many of the individuals which the Newspaper Articles deal with, far exceeded that which was necessary to make Mr Bolt’s point.

PS Katy Barnett’s excellent and extensive analysis of broader issues surrounding Eatock v Bolt at Skepticlawyer also repays careful reading. Also see Russell Blackford’s excellent post.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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8 Responses to Would the High Court uphold sections 18C and 18D of the RDA on constitutional grounds?

  1. As a CONSTITUTIONALIST I view that the Racial discrimination Act 1975 itself is unconstitutional. While the High Court in the case of Bjelke Peterson relied upon it within external affairs, this was a gross misuse of this section.
    I refer to Monis v The Queen, Droudis v The Queen, [2013] HCA 4, 27 February 2013, S172/2012 & S179/2012, which I view exposes how judges of the High Court of Australia fail to understand and comprehend the true meaning and application of the constitution.
    Having read through the entire reason of judgments it seems that most judges rely upon:
    (at 2) Monis v The Queen, Droudis v The Queen, [2013] HCA 4, 27 February 2013, S172/2012 & S179/2012,
    QUOTE
    The Australian Constitution limits the power of parliaments to impose burdens on freedom of communication on government and political matters. No Australian parliament can validly enact a law which effectively burdens freedom of communication about those matters unless the law is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of [government in Australia.
    END QUOTE

    (at 61) Monis v The Queen, Droudis v The Queen, [2013] HCA 4, 27 February 2013, S172/2012 & S179/2012,
    QUOTE
    The term “implied freedom of communication concerning government and political matters” has been well established in Australian constitutional discourse since the implication was first posited in Nationwide News Pty Ltd v Wills and in Australian Capital Television Pty Ltd v The Commonwealth . However, as Dawson J said in Levy v Victoria :
    QUOTE

    Yet, reality is that the Framers of the Constitution themselves held
    HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention)
    QUOTE Mr. DEAKIN.-
    What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite.
    END QUOTE
    And
    HANSARD 17-3-1898 Constitution Convention Debates
    QUOTE
    Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves.
    END QUOTE

    It was not at all the Albert Langer case as the High Court of Australia claimed was to recognise political liberty as it was a legal principle embedded in the constitution and acknowledged by the Framers of the Constitution.
    Legally either everyone or no one can be exempted from revealing their identity that is equality!

    The documents can be downloaded from:
    https://www.scribd.com/document/324869383/20160922-PRESS-RELEASE-Mr-G-H-Schorel-Hlavka-O-W-B-ISSUE-Banning-Islamic-Headdress-The-Niqab-and-Burka-Etc-the-Constitution

    Much debate about religious liberty but again it must be considered in the proper context of the constitution and not despite of it.

    I view various critical judgments such as WorkChoices, Sue v Hill, Sykes v Cleary are gross misapplication of the true meaning and application of the constitution by the High Court of Australia. As the WorkChoices decision exposes the HCA out of context quoted the Hansard rather than to correctly quote it, and by this sought to justify what was blatantly incorrect.
    Despite whatever the High Court of Australia may have ruled about the issue of compulsory voting, let it be clear that when I filed a s78B NOTICE OF CONSTITUTIONAL MATTERS I successfully appealed both convictions of FAILING TO VOTE on 19 July 2006 without any of the Attorney-Generals challenging any of my written submissions in my ADDRESS TO THE COURT that compulsory voting was unconstitutional.
    Hansard 19-4-1897 Constitution Convention Debates
    QUOTE
    Mr. CARRUTHERS:
    This is a Constitution which the unlettered people of the community ought to be able to understand.
    END QUOTE
    .
    Hansard 21-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention)
    QUOTE
    The Right Hon. C.C. KINGSTON (South Australia)[9.21]: I trust the Drafting Committee will not fail to exercise a liberal discretion in striking out words which they do not understand, and that they will put in words which can be understood by persons commonly acquainted with the English language.
    END QUOTE

    Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention)
    QUOTE Mr. ISAACS.-
    We want a people’s Constitution, not a lawyers’ Constitution.
    END QUOTE
    And here is where the problem lies. We have lawyers who are judges who wrongly are interpreting the intentions of the Framers of the constitution rather than to have the mind set what the true meaning and application of the constitution is for the unlettered person who voted to accept the draft constitution put to them at the time!
    “:.. The starting point for a principled interpretation of the Constitution is the search for the intention of its makers” Gaudron J (Wakim, HCA27\99)

    “… But … in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes. ”
    Windeyer J (Ex parte Professional Engineers’ Association)

    Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17 June 1999)
    QUOTE
    Constitutional interpretation
    1. The starting point for a principled interpretation of the Constitution is the search for the intention of its makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional interpretation is not a search for the mental states of those who made, or for that matter approved or enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in the historical context in which they used them[52]. In a paper on constitutional interpretation, presented at Fordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinion[53]:
    “We must begin, in my view, by asking what – on the best evidence available – the authors of the text in question intended to say. That is an exercise in what I have called constructive interpretation[54]. It does not mean peeking inside the skulls of people dead for centuries. It means trying to make the best sense we can of an historical event – someone, or a social group with particular responsibilities, speaking or writing in a particular way on a particular occasion.”
    END QUOTE
    The courts cannot modernise the constitution merely because of their contemporary views, they must act to the true meaning and application of the constitution but regretfully to my experiences many do not even understand it.
    My published books in the INSPECTOR-RIKATI® series on certain constitutional and other legal issues exposes a lot in details.

  2. paul walter says:

    There is a lot of money to made from tabloid-dominant msm and the right also like it because it is defacto censorship as real stories based on fact that have some relation to the world are omitted in favour of the salacious guff people like Bolt would go along with.

  3. George Gell says:

    I would not hold out much hope of the HC being reasonable enough to strike down 18C.
    After all it held that the Federal Parliament could redefine “marriage ” without a referendum passed by a majority in a majority of the States as required for an amendment of the Constitution.

    There was no doubt whatsoever of how “marriage” was defined in 1901. By allowing a parliament to redefine its own heads of power the HC has , in effect let the Federal Parliament redefine it powers however it sees fit. The HC has lost my respect.

  4. paul walter says:

    Just reading it bit more closely and discovered that crucial little pocket of darkness encapsulated in the Jeremy Jones and and Toben and Scully.

    I don’t like any of these people who employ the law in pursuit of shabby outcomes (Yes, I mean Jones and his confrateres also).

    But gee, is it possible to have sympathy for Toben , a man in possession of a university doctorate (???) and the offensive, fantastical pamphlet guff peddled, mentioned at the beginning of the Scully precis.

  5. rog says:

    The talk seems to be centred around 18C without referring to 18D, which places restrictions on the scope of 18C so that free speech is maintained (have to admit to not reading the linked arguments).

    According to HRC the filter of 18D contributes to there being less than 3% of complaints making it to court and once in court, many of the cases fail.

    Bolt had to really try hard to get a judgement against him, which makes you wonder at the method of madness.

  6. Peace Be With You says:

    an article by barrister Louise Clegg in the Australian Financial Review a couple of days ago. She fearlessly asserts that the High Court is likely to strike it down

    “an article by barrister Louise Clegg, who is married to Liberal right wing MP and Abbott supporter Angus Taylor, in the Australian Financial Review a couple of days ago. She fearlessly asserts that the High Court is likely to strike it down”

    All fixed.

    • john Walker says:

      Thanks that settles the legal question nicely

      • Peace Be With You says:

        It settles the motivation. The legal question won’t be settled until and unless the High Court hears a case, which may be never. In the mean time, read French’s speech. It’s not at all obvious he is itching to strike down the law. (And since he is retiring soon he’ll never get the chance in any event.) The speech says that there are competing interests and rights and where you draw the line on restricting speech is delicately poised.

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