The Vindication of Section 18C of Australia’s Racial Discrimination Act: Policy Analysis
Section 18C (‘18C’) of the Racial Discrimination Act1975(Cth)has long been a cause of right-wing left-wing tensions in Australian politics. First passed by the Keating government in 1995, the Section states:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group”.
18C first drew the ire of conservative media groups and personalities after the highly controversial and sensationalised 2011 case, Eatock v Bolt (2011). The Federal Court of Australia ruled that two articles written by prominent conservative journalist Andrew Bolt, published in right-leaning Herald Sun, contravened Section 18C. In the decade since, the Murdoch media, which owns the Herald Sun together with some 65% of print newspapers across Australia (Samios, 2020), has vigorously campaigned for the abolishment of Section 18C. Conservative politicians and commentators not only censure 18C as “dreadful”, “anti-free speech,” and “notorious”, they are also critical of the “administration of the law” by the Australian Human Rights Commission (AHRC), the arbiter of racial discrimination cases, and the 18C supporters who are “in favour of the state dictating the limits of public discussion” (Breheny, 2017).This is indeed the heart of the public debate: the legislation has triggered a relentless tension between what Isaiah Berlin (1969)famously called the ‘positive freedom’ of speech or the ‘negative freedom’ to not be racially vilified. 2021 marks ten years after Eatock v Bolt, and the world is a different place. As right-wing populism sinks its teeth into liberal democracies across the world, right-wing attacks fuelled by Islamophobia, neo-Nazism, anti-Semitism, and white supremacy have accelerated. Anti-establishment, anti-political correctness, freedom of speech loving populist figureheads such as Donald Trump, Boris Johnson, Nigel Farage, Pauline Hanson, Marine Le Pen, Narendra Modi, Jair Bolsonaro, and Viktor Orban have all presided over a vast polarisation of the public in their respective states. The 2019 attack, which killed 51 in Christchurch, New Zealand, and shooting in El Paso, Texas, the same year against Hispanic Americans, are but two examples among many. Democratic states have been destabilised by rising right-wing extremism, as seen in the 2021 Insurrection at the US Capitol building. These are but a handful of the tidal wave of unprecedented right-wing extremist events which have emerged from the populist era.
As such, I argue that today, Section 18C of the Racial Discrimination Act 1975 not only holds a firm place in regulating hate speech, which is often a precursor to the incitement of violence and indeed torture; but that Section 18C should be seen as a cornerstone of regulating an incitement of violence worldwide. My argument is two-pronged, legislative and political. First, I counter the idea that 18C is anti-free speech, based on both its legislative content and stare decisis (case law or precedent). I conclude that 18C only regulates hate speech that causes or threatens harm and other speech, which causes mere offense. Secondly, I review the role of hate speech in inciting racial and ethnic violence. In particular, I review the Rwandan genocide, noting the role pervasive and easily accessible hate speech, which lead to an incitement to violence against its ethnic Tutsi minority. Consequently, hate speech creates the conditions for and is a precursor to racial and ethnic violence. Thus, it is apparent that hate speech legislation such as 18C has the potential not only to be a robust anti-hate speech policy but also, combined with effective intelligence and policing measures, an anti-violence policy that can protect minorities in an increasingly polarised, violence-prone political climate.
Firstly, it is important to counter the narrative the 18C regulates offensive or insulting speech, restricting the right to free speech; as the precedent, and the wording of Section 18D show, the legislation is designed to counter hate speech which incites harm. As John Stuart Mill indicated in his “harm principle”, there is no justification to curtail someone’s civil liberties, except “to prevent harm to others” (Mill, 1989). Offensive and hate speech are distinct, and regulating offensive speech hinders progress, whereas regulating hate speech does not affect. In Australia, numerous cases tried under Section 18C have referred to the following Section, 18D, to distinguish between hate and harmful speech, and merely offensive speech:
“Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition, or distribution of an artistic work; or
(b) 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; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”
Shron v Telstra, 1998saw a Jewish man complain about being “deeply offended” (Lloyd, 2017) about a Telstra phone card depicting a Nazi era fighter plane “with a swastika on its tail”(Lloyd, 2017); the Human Rights and Equal Opportunity Commission dismissed the claim, arguing that “the context” of the depiction would “need to be very different to be unlawful”(Lloyd, 2017). In contrast, Clarke v The Sunday Times saw an Aboriginal mother complaining against readers’ comments about her three children’s death in a car accident, some of which included, “I would use these scum as land fill” (Lloyd, 2017). Her complaint was upheld, with the company – News Pty. Ltd. – compensating $15, 624. This comparison indicates that 18C regulates conduct with “profound and serious effects, not be likened to mere slights” (Keifel, 2018), distinguishing between offense in the former case and hate speech in the latter. Although the wording of 18C, which includes acts that “offend, insult, humiliate or intimidate,” may suggest that mere offenses can be tried, precedent such as the aforementioned, and a wholistic consideration of 18C and 18D suggest otherwise. As then-Race Discrimination Commissioner Tim Southphommasane put it in 2014, using the words of 18C itself, “… something [must be] 'reasonably likely, in all the circumstances' to cause the requisite harm. It isn’t enough that someone says they have been ‘offended, insulted, humiliated or intimated’ (Southphommasane, 2014).
A wealth of other dismissals indicates that ‘offense’ on its own is not enough to sustain a claim under Section 18C, and free speech – even if it is offensive – is strongly protected in 18D.In the case, Bropho v Human Rights and Equal Opportunity Commission, a cartoon titled ‘Alas Poor Yagan’, which was “offensive” (Porter, 2015)to the Indigenous community, was dismissed under 18D. As such, despite the linguistic caveats of Section 18C, the precedent doesn’t quite regulate acts or speech that cause “offense” and “insult.” As Hicks points out, “bodies that apply section 18C already appear to consider historical and social context” (Hicks, 2016). As case law indicates, 18C “is only applied in circumstances where speech amounts to persecution” (Hicks, 2016). As such, it is evident that 18C and 18D collectively pursue what is more aptly described as hate speech, which must be regulated indeed.
Given that 18C regulates hate speech and calls to violence effectively, with 18D even protecting the freedom to offend or insult unless it causes harm, I now turn to the political dimensions of hate speech and its power to incite violence if not regulated adequately. While hate speech is rarely the sole cause of racial or ethnic violence, it almost always immediately ignites and/or exacerbates it. The decades before the Rwandan Genocide were marked with incessant propaganda against the Tutsi ethnic minority. By the mid-70s, inter-ethnic relations in Rwanda existed against a backdrop of Belgian imperialism, which solidified the otherwise weak distinction between the Hutu and Tutsi ethnic groups and a civil war that exiled the Tutsi and further pushed them into a minority (Lowery& Spalding, 2016). At this time, too, a populist Hutu leader was at the helm of Rwandan government. He exacerbated inter-ethnic tensions. Under President Juvenal Habyarimana, a former general closely affiliated with the military and police, discrimination against the Tutsi continued. The hundreds of thousands of Tutsi exiles were denied a return to Rwanda. As the exiled Tutsi in neighbouring African states assembled forces to return to Rwanda and attempted an invasion in 1990, Habyarimana and his government, in archetypal populist fashion, used the Tutsi minority as a scapegoat for the state’s problems. Habyarimana’s government began funding an anti-Tutsi newspaper called the Tutsi “dangerous” (Lowery& Spalding, 2016). As Lowery and Spalding note, from the 1990s onward, anti-Tutsi hate speech created the conditions for the 1994 genocide:
“The relentless propaganda of the Hutu Power extremists, which was not only published in newspapers but also broadcast continually on their own radio station, Radio Television Libre des Mille Collines (RTLMC), had succeeded in completely dividing the country. They relentlessly spread hatred against Tutsis, calling them inyenze, or cockroaches. There was no longer any room for political moderates or middle ground of any sort. Anyone who wavered in his or her support for the Habyarimana regime was branded a traitor”(Lowery& Spalding, 2016).
This is further demonstrated in Leon Mugesera’s November 1992 speech and its aftermath. Recognized as the rallying call of the genocide, it was uncensored and indeed encouraged by the Habyarimana regime. A close affiliate of the president, Mugesera (1992) called for the extermination of the Tutsis: “Are we really waiting now for them to come and exterminate us?... If they do not cut the necks of the Tutsi it will be the Tutsi who will cut theirs”. The speech “sparked a series of atrocities… in the Gisenyi region of the country” against the Tutsis (Schabas, 2000). No action was taken against Mugesera, who called for the “striking down” (1992) of Tutsi party president Twagiramungu for trying to “speak against the CDR [a far-right Hutu power party]” (Schabas, 2000). Thus, a key factor of the 1994 Genocide, which saw up to 600,000 Tutsi murdered at the hands of Hutus, was the astronomical level of uncensored, unpoliced hate speech preceding it.
Evidence of similar societal polarisation is abounding today, most prominently in the US. The rise and election of right-wing President Donald Trump has a direct link to an increase in the number of hate crimes by 100 per year in the US, with Muslims being doubly targeted from 2016 to 2018 (Whitfield, 2018). In August 2017, in a powerful message, he called some of the white nationalist protesters in Charlottesville, Virginia, “very fine people” (Trump, 2017). One woman died, and a black man was beaten at the hands of four white men during this protest.
Trump’s presidency has legitimised discriminatory rhetoric, with hate groups like The Daily Stormer expanding from 1 to 20 offices between 2015 and 2016. Identity Europa and Vanguard American gained prominence in 2016. The white supremacist on-line propaganda has directly facilitated racial crimes. For example, the South Carolina black church shooter frequently read The Daily Stormer website “[with] 400,000 unique page views a month before it was taken down” (Owen, 2018). Between March and June 2020, Amid Trump’s labelling of COVID-19 as the ‘China Virus’, “2100 anti-Asian American hate incidents were reported across the country” (Donghue, 2020). In 2020, white supremacist terrorism constituted 67% of total terrorism in the US (Beckett, 2020). As Byman notes, “the White Supremacist movement has steadily globalised” (Byman, 2021) with the Christchurch gunman drawing direct inspiration from “white extremist terrorism attacks in Norway, the United States, Italy, Sweden and the United Kingdom” (Landon &Cai, 2019). Indeed, there is a strong correlation between Trump’s racist speech and violence.
How then, to mitigate ‘Trumpian’ contributions to hate crimes or Pauline Hanson’s, Marine Le Pen’s Nigel Farage’s, Narendra Modi’s, or Jair Bolsonaro’s incitement to hatred – be it sexual, racial, or religious? As we have already established, mere “offense” should never be jus ad bellum to infringe on free speech. In On Liberty, John Stuart Mill suggests that “We can never be sure that the opinion we are endeavoring to stifle is a false opinion…”(Mill, 1989).As such, Mill refuted the idea of monopolizing ‘the truth’, asserting that societal certainty does not equal absolute certainty.
Several instances of curtailing free speech based on normative attitudes have been proven to be grossly misguided, to the detriment of not only intellectual pursuits, but the progress of humanity. Galileo Galilei’s 1633 conviction by the Roman Inquisition (Mayer, 2012) for his act of “vehement heresy…” (Finocchiaro, 1989) in defending Heliocentrism is one mere example. The Church’s “censorship… had important consequences for the development of modern science… [limiting]… legitimate investigation of the natural world” (Tarrant, 2013). What is to say that our curtailment of ‘offensive’ speech today will not have the same effect?
This is why, in Australia, section 18D thus ensures that “artistic works… scientific debate… and fair comment on matters of public interest” (Racial Discrimination Act 1975 (Cth) s 18 D)are exempt from section 18C, providing they are “said or done reasonably and in good faith” (Racial Discrimination Act 1975 (Cth) s 18 D). Therefore, even ‘offensive’ speech that counters the normative view is be protected by the law. However, what isn’t protected are acts or speech motivated by race, colour, national or ethnic origin, which actively discriminate or create intimidating or violent conditions for the targeted group. Australia has a history of prosecuting speech and acts which amount to racial discrimination, which robustly protects the nation’s minorities.
18C has had a long and troublesome history, with issues of the freedom of speech dominating the discussion around whether to abolish the Section. However, in recent years, its place in Australia’s statute books has been vindicated, what with the rise of white supremacist attacks, fuelled by racism, ethnonationalism, and religious discrimination. Thus, 18C holds both legislative and political power to act as a bulwark against extremism's riding tide. On a legislative level, the distinction between merely ‘offensive’ speech, and hateful speech directly correlates to the incitement to violence, is paramount in determining whether either should be regulated. Offensive speech can be anything, from the sun is the centre of the Earth to a swastika on a phone card. Hate speech is persecution, incites violence, and creates a threatening and discriminatory conditions for victims. This is the type of speech that 18C regulates. On the political level, history is rife with examples of hate-speech and the divides and harm it causes; Rwanda is but one example. This political history demonstrates that offensive speech should be regulated only when it amounts to hate speech, such as white supremacist websites in the US or anti-Tutsi rhetoric in Rwanda. Hate speech legislation should be a nation’s first line of defense for its ethnic, racial, and religious minorities. Whether or not Donald Trump’s speech would classify an offense under Section 18C remains unclear and controversial. The acts and speeches of his prominent supporters, such as Steve Bannon, Rudy Giuliani, Eric Trump, and others, warrant a careful analysis.
Furthermore, Trump’s followers have undoubtedly adopted his calls to “fight” the 2020 Election’s results. It is not out of the possibility that should such speech be articulated in Australia; it would violate 18C. Among the increasing abandonment of political correctness, it is apparent that hate speech legislation has more of a place in Australian society than ever before, as a bulwark against unchecked political divisiveness along racial, ethnic, and religious lines, the bane of white supremacism rising across the world.
