Many Australians think we know what “freedom of speech” means but few truly understand where the boundaries are in our laws.
The Government has asked the Parliament’s Human Rights Committee to conduct an inquiry into freedom of speech.
As deputy chair of that committee I look forward to receiving submissions and hearing the views of all who are interested in this topic.
But, unlike many other democracies, we do not have a Bill of Rights. Rights of citizens are protected by legislation and common law. In fact, freedom of speech has no explicit constitutional protection. Moreover, the various legal protections are not absolute. They contain limits to accommodate public interest.
Gough Whitlam brought in the Racial Discrimination Act in 1975. This legislation has been protecting against discrimination for 41 years. Just over 20 years ago the protections in section 18C and the exemptions in section 18D were added.
Then, attorney-general Michael Lavarch, said: “This Bill is an appropriate and measured response to closing the identified gap in the legal protection of all Australians from extreme racist behaviour. It strikes a balance between the right of free speech and the other rights and interests of Australia and Australians.”
In the years since, the Human Rights Commission has received around 100 complaints a year. Most have been resolved through a conciliation process. Annually, about five cases find their way to court. The claims able to be brought under 18C are limited by the provision itself: for instance it protects “race” not “religion”. Therefore, a Muslim complaining about verbal abuse would not be protected by 18C. Also, abuse that occurs in private is not protected by 18C. People will always be free to swear at their television screens in their own home!
Importantly, section 18D provides broad exemptions so that free speech is not unnecessarily impeded.
The exemptions include expressions made in good faith for academic or scientific purpose or those made in the public interest.
The test of whether an expression will breach 18C is an objective one. It does not rely on whether the “victim” feels offended, insulted, humiliated or intimidated. The words, “offend, insult, humiliate or intimidate” in 18C are not determined individually but instead are treated as one offence. There is only one test to determine whether 18C has been breached and that includes all of the words together.
Courts have considered that breaches of 18C do not include “mere slights” — as occurred when the case against three QUT students was dismissed recently— but only “profound and serious” effects from use of the expression complained of.
This inquiry is important and it will be interesting to hear what racial matters people want to be able to express to and about their fellow Australians.
I urge you to make submissions before they close on December 9
First published in The Courier-Mail 23 November 2016