March 28, 2014
After Monday's cabinet meeting George Brandis’ proposed changes to sections sections 18B, C, D and E of the Racial Discrimination Act, which maim to loosen constraints on racist insults and hate speech, is now a draft exposure bill. This tactic of a stalking horse gives the Abbott Govt wriggle room to make minor concessions.
Brandis’s underlying rationale for the proposed changes is that people have a right to be bigots ie., allow completely unrestrained race-based comments in public discussion, and racial abuse in public places. His classical liberal position---that there should be minimal controls on speech--- is premised on the rights of property. So free speech" is "free print/broadcast", that is, the right of the propertied to issue opinions in a dominated space.
Simon Rice says that the proposed changes drop the current test for racial vilification – “conduct causing offence, insult, humiliation or intimidation” – and replace it with a test of “conduct that is reasonably likely to vilify [which means incite hatred] or to intimidate”:
Focus switches from the harm that is caused by race-based speech to the conduct that intimidates or incites hatred. Instead of being concerned to prevent harm, the concern is to maintain public order... By addressing only incitement to racial hatred, Brandis is winding back the vilification prohibition to cover a single – and increasingly rare – type of behaviour: the crude, public rantings of a racist.
The third part of the proposed changes is the conduct that is explicitly permitted. Vilifying or intimidating public conduct that is done because of a person’s race is prohibited, but it is allowed when it is done in the course of public discussion. There is no qualification to this exception.
In other words, anything goes in the name of free speech, accurate or not. It's unrestrained biffo all round given that the proposed law does not prohibit race-based conduct that incites, for example, serious contempt or severe ridicule of a person, or revulsion towards them. Nor does it prohibit race-based conduct that causes offence, insult or humiliation.
A good argument can be made that Racial Discrimination Act does needs amendment that renders its focus toward a dominant purpose of humiliation and/or intimidation, and away from insult and/or offence – concepts better left to the realm of defamation.
The draft bill’s exceptions clause, which no longer contains any requirement for reasonableness or even accuracy, is problematic because it implies that the Abbott Government has an indifference or disdain for speech and genuine debate to take place in a respectful manner.