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Act has chilling effect on freedom of speech
COLUMNIST Andrew Bolt is before the Federal Court because various plaintiffs are seeking a declaration against him under the Racial Discrimination Act (together with a court-ordered apology, which sounds Orwellian even writing it down).
They want the court to declare that Bolt's opinion pieces about light-skinned Aborigines were unlawful under the act, which strangely enough need not be the same thing as being a criminal offence under that act. And they want the court to enjoin their being republished.
In 1995, the last year of the Keating government, this act was amended to include racial vilification, meaning it became unlawful "to offend, insult, humiliate or intimidate another person or a group" on the basis of their race. But because of the fear of how stifling this could be for free expression in this country, the act also limits remedies for this as well as providing for lots of exemptions. So you don't infringe the act if your words were said reasonably and in good faith in such contexts as being part of an artistic work, or an academic debate, or was "a fair comment on any event or matter of public interest".
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The Bolt trial is testing the limits of this legislation. We will see how this 1995 legislative amendment, controversial even back then, is interpreted by the courts. We will see how much room there is in Australia to say things that offend others, the sort of issues that really do lie at the heart of free speech concerns.
Four comments only indirectly related to that trial are worth making. First, I have always said that Australia has more free speech than Canada and Britain. And in practice, if you factor in the sort of self-censorship you see on American university campuses, then we have more scope to speak our minds here than even in the US.
Depending on how this trial goes, that could all change.
Second, a number of commentators have mistakenly claimed this couldn't happen if we had a bill of rights. Wrong! Canada has one of the strongest bills of rights in the common law world. It also has way more limits on your scope to speak your mind when it comes to so-called hate speech, and indeed defamation and campaign finance rules, than we have here. That's why Mark Steyn was dragged before courts and pseudo-courts in Canada, bill of rights and all. The mistake is to think a bill of rights with its "right to free speech" somehow gives you an absolute right along those lines. Wrong. All you buy with a bill of rights is the judges' views about the proper scope of the right, how it relates to other enumerated rights, and what limits on it are reasonable.
Put differently, you can be an unstinting critic of bills of rights at the same time as you are in favour of lots and lots and lots of free speech. There is nothing inconsistent in that and people who point to some supposed mismatch between the two simply don't know how bills of rights work. When you buy one, you are simply buying the views of the unelected judges. You are not buying absolutist guarantees of rights.
Third, however this court case goes, and even if there be some sort of appeal, the people to blame for this infringement of free speech are our legislators. This 1995 amendment ought to be repealed, and now. Sure, you can read this statute as giving such wide exemptions that you could drive a truck through them. So maybe Bolt will walk away unscathed.
But the very fact he (and you) can be brought to court at all can impose a massive chilling effect on free speech. We shouldn't have an act that allows complaints of a quasi-defamatory nature to be turned into ones dressed up as racial vilification. Those who think, like me, that the valuable sort of free speech is the kind that protects stuff many find offensive and distasteful will want this 1995 amending legislation repealed.
Otherwise claims to be in favour of free speech start to look like favouring only the warm, fuzzy varieties of free speech.
The only valuable sort of freedom of speech is the sort that allows people to do or to say what others find wrong-headed, offensive, distasteful and intolerant.
Being free to say and do what everyone else wants you to say and do is not a liberty or freedom you will ever have to fight for; it will make little difference to anything.
Already this Bolt trial is getting publicity in the US. Steyn is writing about it, as are others. And they're painting us as a Mickey Mouse little jurisdiction where being offended is enough to allow victims to paint some speakers as acting unlawfully. Some are suggesting we might be heading down the road Canada travelled.
I think any good, well-functioning democracy requires its citizens to man up and grow a thick skin. If you're offended, tell us why the speaker is wrong. Don't ask for a court-ordered apology and some two-bit declaration.
Of course none of this is the court's fault. They didn't pass this legislation. Our legislature did. And it's time to repeal it. Now.
