Submission to Freedom of speech in Australia inquiry

1. Term of Reference One – Section 18C

1.1. Summary

Whilst condemning all forms of racism the QCCL submits that the current law goes too far as a restriction on free speech when it applies to offensive and insulting language when used in public.

1.2. The Priority of Free Speech

The QCCL unreservedly condemns all forms of racial vilification and discrimination. However in the Council’s view, it is another thing to make the expression of such views illegal.

In the end then the difference between those who oppose bigotry but who oppose race hatred laws and those who oppose bigotry and support race hatred laws is threefold:

a. The first puts a high value on freedom of speech and is concerned that any restriction on freedom of speech is itself harmful;
b. That any restriction of speech is likely to be abused particularly as a precedent for future restrictions on freedom of speech;
c. A difference over how best to eliminate bigotry. Is it done best by making speech unlawful or by using speech as a weapon to expose and eliminate prejudice.

In its framework for analysis document the QCCL endorsed the view of JS Mill that free speech is a right not subject to a simple balancing analysis. Speech is protected as being essential to equal participation in the political process and as being central to human autonomy and rationality. These objects, and therefore freedom of speech, are therefore worthy of promotion as they are essential to society’s ability to ensure respect for its rules. A society can only justify imposing obligations on people when it respects their autonomy and their need to feel part of the decision making process.

The very test of freedom of speech is that it must be given to those who disagree with you otherwise it is meaningless.

One of the corner stone arguments in favour of freedom of speech is that when a state suppresses a person’s ideas or when a state suppresses a person’s expression of those ideas the state is insulting the person and denying their autonomy.

This also violates the conception of equality because when we suppress a person’s ideas we are violating that basic conception that everybody has an equal right to participate in the decision making process on matters which may affect them.

The limitation on this argument is exposed in the case of this type of law as the harm caused by affronting somebody’s dignity may not be greater than the harm which the expression of the idea may cause. It is commonly argued that hate speech is antagonistic to free speech values because it silences its targets. This silence happens, it is argued, with the creation of a climate that discredits members of racial or ethnic minorities.

There are two responses to this argument.

Firstly, Andrew Kopelman has argued, “the advocates of censorship were never able to establish a persuasive causal nexus between silencing and any particular speech act. It was impossible to show that any single instance of racist speech …..could have that kind of devastating effect on a person. Speech is certainly integral to the problem: racism and sexism are ideas in people’s heads….. Antidiscrimination law is necessarily committed to the reshaping of culture to eliminate or marginalise such malign ideologies. Censorship is the wrong tool this job. The cost to free speech of a hate speech prohibition – and there is every reason to think that it would be substantial – would not buy much.”

Secondly, various different types of harm must be distinguished because to make unlawful certain types of affront to autonomy puts at risk the greatest tool we have in the fight for equality and freedom.

In our view the current law goes too far as a restriction on free speech when it applies to offensive and insulting language when used in public.

1.3. Words Wound

The case for laws outlawing racial vilification often starts with the concept that words wound.

The proposition was well summarised in the Human Rights Commission Report No. 7 Proposals for Amendments to the Racial Discrimination Act to cover incitement to racial hatred and racial defamation November 1983 at page 8 where the Commission contrasted the following sayings:

• Sticks and stones may break my bones but words will never hurt me – English saying;
• Words hurt more than fists – Samoan saying;
• The shaft of the spear may be parried but the shaft of the word cannot – Maori saying.

However this argument can be taken too far. A clear distance needs to be kept between words and wounds not least because words are usually offered as the alternative to violence. Only words which incite or very closely resemble violence should be unlawful.

The argument that words wound was criticised in this fashion by Jonathan Rauch in his book Kindly Inquisitors at page 131:

“A University of Michigan law professor said: “To me, racial epithets are not speech. They are bullets”…My own view is that words are words and bullets are bullets and that it is important to keep this straight… you do not have to be Kant to see what comes after “offensive words are bullets”: if you hurt me with words, I reply with bullets, and the exchange is even.”

As Rauch argues this is the logic of the Ayatollah Khomeini when dealing with Salmon Rushdie. There is no doubt that the Ayatollah and many people in Iran were deeply offended by Rushdie’s book. They chose to deal with that offence not with more words but with bullets.

It is often said quite correctly that a person’s race or ethnicity is at the core of who they are.

There can be other things that are at the core of a person’s being and we do not protect them from being insulted or offended. For example, you might be a scientist, a philosopher, a Judge or a poet whose life’s work is attacked. You might be a scientist whose whole career is brought down by a criticism or an error that is identified at the basis of their work. That surely must be quite devastating to who they are as a human being. But we do not stop those criticisms.

A creationist for example, is no doubt deeply offended by the discussion of evolution and assertions that God did not create the universe in six days and rest on the seventh. Are they to be protected?

Section 18C does not apply to religion. However there are already arguments being made to extend the prohibition to many other characteristics of persons, with three states already having anti-religious vilification laws. If the law is to prohibit offence and insult the chilling effect of the extension of these laws will be enormous.

Senator Di Natalie in a speech to the Senate on 22 November 2016 made much of the example of a woman who been the subject of vicious attacks in her workplace and in the street. The suggestion seemed to be that those were examples of free speech which section 18C was needed to address. This type of conduct could be prohibited even in the United States under current First Amendment doctrine . And so it should be. It is clearly an example where words and conduct are so close together as part of an attempt to intimidate someone that the Free Speech Principle does not apply. In fact, these situations are more than adequately dealt with by provisions such as section 131A of the Anti--Discrimination Act (QLD), which from a free-speech point of view is a much more appropriate provision, which deals with serious conduct and impinges on free speech to a very limited and acceptable extent.

1.4. Will it work?

We must ask does suppression actually work ? We ought not to diminish free speech if doing so will not protect those it is intended to protect.

As civil libertarians we start with the view that no system of suppression yet devised is perfect. In fact, it is noted that these laws do not apply to things that are said in private. It is not at all clear how allowing those who hold racist views to continue to hold them in their head and to express them over the barbecue (most likely with people who hold the same views) is ever going to result in the eradication of those views. Those views can only ever be eradicated by confrontation, argument and discussion.

If that is so suppression has the potential to be counterproductive. There is no persuasive psychological evidence that punishment for name calling changes deeply held attitudes. To the contrary, there are psychological studies that show, as well as the evidence of history, that censored speech becomes more appealing and persuasive to many listeners merely by virtue of being censored.

The act of suppression can also draw the views being expressed to the attention of people who might otherwise not have heard of them or might not have been interested.

It is often said that these types of laws are necessary to prevent things like the development of Adolf Hitler. In fact, Weimar Germany had anti-hate laws. Those laws were in fact enforced with some vigour. During the 15 years before Hitler came to power there were more than 200 prosecutions based on anti-Semitic speech. Furthermore there is evidence that what happened is that Nazis made use of the trials to promote their cause. News reports indicate that something similar has happened recently in the Netherlands in the case of Gert Wilder.

1.5. Collateral Damage

Any legislation of the type proposed under discussion relies on the ability of the state to impartially and effectively identify threatening groups.

Censors have stifled the voices of oppressed persons and groups far more than those of their oppressors Censorship has traditionally been the tool of state and federal governments seeking to subordinate minorities and silence dissenting voices. The history of regulating speech has been littered with errors of its persecutions; Galileo, suppression of trade unions, banning great works of art, etc.

But of course this argument applies in many areas of life and government regulation. However, we would argue that the distinctions required to regulate speech are harder to make than in other forms of conduct, because of the vagueness of language.

In addition, when regulating speech which interferes with its activities government is in essence in a conflict of interest situation. This is not meant to be some conspiracy theory. It derives from the fact that in the words of Lord Acton “All power tends to corrupt.”

The first individuals prosecuted under the British Race Relations Act 1965 were black power leaders. It was also used against the Anti Nazi League.

1.6. Liberty and Equality can be had together

This dispute brings into focus the relationship between freedom of speech and equality. In other words, is freedom of speech a precondition of equality or is equality an essential precondition for free speech. We argue that history demonstrates a symbiotic interrelationship between free speech and equality

There is no doubt that there are racial and cultural minorities in this country who do not have equal socio--economic opportunities. This sort of legislation will not address those problems. What will help those disadvantaged groups is a redistribution of opportunities, a proper welfare system, a good education and an open labour market. It is only since the Global Financial Crisis of 2008 that the question of inequality has returned, however hesitantly, to the political agenda after a thirty year absence. Free speech is essential to achieving this type of redistribution.

The strong protection for freedom of speech under the American First Amendment protected the drive for de-segregation in the South during the Civil Rights Movement.

Rauch in his book gives the example of change in attitudes to homosexuals in the United States since he was born in 1960 as showing that censorship is not necessary and change can occur through persuasion.

He argues cogently that there has been a transformation which is best exemplified by gay marriage, and the attitude of the community to homosexuals. He makes the point that none of that was achieved with an anti-vilification law. As he says on page 175:

“The case for hate speech prohibition mistakes the cart for the horse, imagining that anti-hate laws are a cause of toleration when they are almost always a consequence. In democracies, minorities do not get fair, enforceable legal protections until after majorities have come around to supporting them. By the time a community is ready to punish intolerance legally, it will already be punishing intolerance culturally. At that point, turning haters into court room martyrs is unnecessary and often counterproductive.”

He goes on at page 178 to say:

“The answer to bias and prejudice is pluralism, not purism. The answer, that is, is not to try to legislate bias and prejudice out of existence or to drive them underground, but to pit biases and prejudices against each other and make them fight in the open. That is how, in the crucible of rational criticism, moral error is burned away. That is how, in my lifetime, moral error was burned away.”

The British author and lecturer Kenan Malik has pointed to the irony of those who argue for diversity and then want to prevent the inevitable, and beneficial consequences of that pluralism

But the very thing that is valuable about diversity – the cultural and ideological clashes that it brings about – is precisely what so many people fear. Diversity may be a good, they argue, but it has to be policed to minimise the clashes and conflicts and frictions that it brings in its wake. The imposition of moral and legal restraints on being offensive is one form of such policing.

I take the opposite view. It is precisely because we do live in plural societies that we need the fullest extension possible of free speech. In plural societies, it is both inevitable and important that people offend the sensibilities of others. Inevitable, because where different beliefs are deeply held, clashes are unavoidable. Almost by definition such clashes express what it is to live in a diverse society. And so they should be openly resolved than suppressed in the name of ‘respect’ or ‘tolerance’.

And important because any kind of social change or social progress means offending some deeply held sensibilities. Or to put it another way: ‘You can’t say that!’ is all too often the response of those in power to having their power challenged. To accept that certain things cannot be said is to accept that certain forms of power cannot be challenged. Human beings, as Salman Rushdie has put it, ‘shape their futures by arguing and challenging and saying the unsayable; not by bowing their knee whether to gods or to men.

The view of the US Supreme Court’s Justice Brandies that light is the best disinfectant remains fundamentally correct.

1.7. Other laws

It has been pointed out by some commentators that offensive or insulting language is quite often unlawful.

That is not consistently the case. For example, “mere abuse” does not amount to defamation.
Most of the other laws that are referred to in this context are public order offences. These offences are quite often in fact used against disadvantaged members of the community, particularly indigenous members of the community. The laws in our view serve no purpose and should be removed.

The US Supreme Court in its decision in Erznoznik v The City of Jacksonville pointed out “The plain, if at times disquieting truth, is that in our pluralistic society, constantly proliferating new and ingenious forms of expression ‘we are inescapably captive audiences for many purposes’”. As the Court pointed out shutting off discourse solely to protect others from hearing it would effectively empower a majority to silence dissidents simply as a matter of personal predilections. In the view of the Court in that case the burden falls upon the viewer or listener in public to avoid offensive speech.

Following the logic of the Court in that and other cases the QCCL takes the view that use of “offensive or insulting language” in public should not be unlawful.


1.8. Interpretation of Section 18C

We accept that the Courts have interpreted the phrase "offend, insult, humiliate or intimidate” as requiring "profound and serious effects, not to be likened to me slights” - Creek v Cairns Post Pty Limited [2001] FCA 1007 at paragraph 16.

In Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 Justice French, (as His Honour then was) approved that remark. Noting that the word "offend" was defined to mean things including "to vex, annoy, displease," His Honour said at paragraph 68, "the lower registers of the preceding definitions and in particular those of "offend" and "insult" seem a long way removed from the mischief to which the Convention on Elimination of Racial Discrimination were directed”.

In paragraph 69 His Honour said "as a general principle freedom of expression is not limited to speech expression which is polite or inoffensive".

We agree. It is argued by some, that because the Court has interpreted this section in a way which does not cover such conduct, there is no need to amend it. We do not agree. The very fact that the legislation makes reference to "offend or insult" sets in our view a precedent for too low a standard.

It is said on the one hand, that section 18 C needs to be retained as it sends a message to the community. But then it is denied that the use of the words “insult or offend” does not send a message and set a precedent. Either laws set standards or they don’t.

1.9. The Bolt Case

The first point to make about the decision in the Bolt case is that it is clear from paragraphs 375 to 80 and particularly paragraph 423 of the Judgment that had he been sued for defamation Mr Bolt would have lost.
The real difficulty in the Judgment is what it says about the broader operation of the section. The following aspects of the section which are identified by the Judge are of particular concern:

a. That in order to have a defence under the Section a person must not only be acting in good faith, they must be acting reasonably. The practical effect of this is that the section only protects a right to political communication that is reasonable which must necessarily mean the mainstream point of view in any debate. The right of freedom of speech is meaningless if it is only for the people who hold the mainstream point of view in any debate.

b. At paragraphs 433 to 435 the judge latches on to the fact that the defence section makes reference to “anything done in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or for any other purpose in the public interest.” The Judge holds that there is a difference between a purpose “in” the public interest and simply a matter “of” public interest holding that for the defence to be valid there must be a public interest beyond freedom of expression in itself and an assessment by the Court therefore of whether the purpose is genuinely in the public interest. That would appear to represent, if it is the correct interpretation of the section, a serious narrowing of the defence contained in Section 18D(b).

What would happen under the current law if, for example, an Australian organisation sympathetic to the cause of Palestinian Liberation made a complaint against an Australian Jewish organisation on the basis of the assertion that Zionism is a form of racism?

1.10. Proposed Amendments

In the QCCL’s submission section 18C could be amended by:

a. removing from 18C(1)(a) the words “offend, insult” which will restrict the provision to conduct that intimidates or humiliates another person
b. we would have no objection to the provision covering vilification and harassment, in their ordinary meaning
c. on a standard analysis any restriction on a recognised liberty should be proportionate. In our view the requirement for the act to be both reasonable and honest has the practical effect of only protecting speech that is reasonable, that is, the main stream point of view. The right to political communication is obviously intended to protect a diversity of competing viewpoints, not just the reasonable ones.
d. making it clear in Subsection 18D(b) that the “statement, publication discussion or debate etc” need only be in relation to a matter “of” public interest.

2. Second Term of Reference - Reform of Australian Human Rights Commission.

2.1. Our Submission

It is our submission that the Commission is not in need of reform.

We will address each of the topics under this term of reference serially:

2.2. Vexatious complaints

The Commission already has power under section 46PH of the Act to dismiss trivial or vexatious complaints.

2.3. Natural justice

It is not clear to us to what point this is directed. The Commission does not, except in the case of terminating vexatious complaints, make any decisions in relation to the substance of any complaint. Its role is to attempt to conciliate complaints. If the complaints cannot be conciliated it can be referred to a Court where all the requirements of natural justice apply.

On occasion, when representing respondents before the commission the writer has had clients express some concern that the Commission seems to have two roles. Firstly as the conciliator and secondly as the body to which to complaint is made. This seems to the writer to be more a matter of appearance then of substance. This is particularly so when both parties are legally represented.


2.4. Privacy of complaints

We would oppose any proposal to open the complaint process up to the public. The allegations to the commission have the potential to do serious damage to the reputation of those who are the subject of the complaint. Those complaints then should not be made public until after the Commission has determined that they are substantive and therefore should not be dismissed.

2.5. Delay

It is for the committee to decide whether there was any evidence of delay in the Commission’s processes. We are aware of the public criticism of the delay or apparent delay by the Commission in dealing with the QUT case. However, we have no evidence as to whether there is any systemic delay. Also, we don't know whether delays are caused by the Commission or by the parties. If there is any suggestion of delay by the Commission the reason for it needs to be identified. Is it a lack of resources? If it is delay by the parties, then the Commission should be given the power to make directions requiring complaints to be conciliated within certain period of time or the complaint be dismissed or to penalise obstructive respondents.

2.6. Costs

Once again we are not sure to what this term of reference is directed. Is there any evidence of unreasonable costs to parties before the Commission? We are not aware of any.

2.7. Relationship between the Commissions proceedings and Court proceedings

In our view this is an issue dealt with adequately in section 46PH of the Act

3. Third Term of Reference – Solicitation of Complaints

We do not see any need for the reform of the current situation.

As we have noted above it is not the Commission which makes binding decisions upon complaints, it is a Court.

In addition, we would be extremely concerned that any attempt to prevent the Commission from soliciting complaints would interfere with its a legitimate functions in ensuring that people are sufficiently aware of what it does and what it can do for them and to make sure that complainants come forward.

4. Term of Reference 4

So far as we are concerned no case has been made for any reform to the functioning of the Commission.


We trust this is of assistance to you in your deliberations