Racial vilification and hate speech are generally regarded as repugnant. However, there is strong resistance to legislation that is designed to curtail such acts, including by several crossbench senators. This includes a recent push to repeal the relevant protections in the Racial Discrimination Act.

The relevant protections in RDA section 18C have undergone significant attacks. Abolishing the relevant provisions is a policy of the senators from One Nation, Family First and the Hinch Justice Party. Recently, one crossbencher lodged a complaint in the Human Rights Commission over being called an “angry white male” in an attempt to undermine the act. The main charge is that 18C (a) limits freedom of speech, and (b) the solution to hate speech is more countervailing speech.

[Take note, David Leyonhjelm: 18C is not all about Andrew Bolt]

Yet, moves to repeal restrictions on racial vilification ignore the power dynamics between the perpetrators and the victims. They also erroneously assume there is an unlimited constitutional right to free speech. In that light, such restrictions do not curtail relevant free speech, and could, in fact, empower people whose speech was heretofore curtailed through implicit threats of vilification.

Is there a right to free speech?

Australia has no bill of rights. This is sometimes a subject of criticism. However, Australia is a democracy and this is enshrined in the constitution, which would be the basis of any potential right to freedom of political expression.

The High Court held that as a result of Australia’s representative democracy, as enshrined in the constitution, there is a limited right to freedom of expression in that the constitution “precludes the curtailment of the protected freedom by the exercise of legislative or executive power”.

In effect, that means that Australia has a limited right to freedom of expression; it is a freedom from legislative or executive encroachment on political speech. It is not a freedom from other people encroaching on speech, and it only extends to political speech. Thus, the legislature could curtail non-political speech without unconstitutionally encroaching on that protected speech. Further, there is no freedom from a corporation or another individual encroaching on speech; a newspaper, for example, can censor whatever it chooses.

Does 18C violate any right?

The next issue is whether restricting “hate speech” could violate any freedom of expression. The answer to this depends on the exact words in the legislation.

Section 18C prohibits acts that are “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”. Section 18D then provides exemptions/defences to 18C: acts that are done (a) in a performance or artistic work, (b) in an “academic, scientific, artistic or other genuine purpose in the public interest”, or (c) in the making of a statement of a fair and accurate report, or a genuinely believed comment on an event or matter, in the public interest.

[Rundle: sit back, relax, and enjoy the right tearing itself to pieces over 18C]

It is clear that a political statement could not violate section 18C. A contentious political view, such as that involving banning Muslim immigration, could plausibly offend some people. However, if that view is enunciated as a genuinely held belief, and is expressed in a non-inflammatory manner, then it would fall within the exemption in sections 18D(b) and 18D(c). Indeed, a “political purpose” would prima facie be a “genuine purpose in the public interest” for the purposes of section 18D(b) as it would be for the furtherance of Australia’s representative democracy. Further, it is unlikely that a “reasonable person” would find a genuinely held political view to be offensive as such offence is inimical to the Constitution; and thus, would be unreasonable.

Therefore, section 18C, especially in the presence of section 18D, would not undermine Australia’s freedom of expression.

Could 18C promote freedom of expression?

Restricting hate speech could plausibly increase freedom of expression by enabling speech from people who might be deterred by the risk of racial vilification.

To see this, consider a situation with two groups — A and B. Group A does not like Group B. However, Group A is incumbent and is relatively powerful. Group A’s economic power enables it to occupy significant financial resources. Group B is relatively less powerful with worse access to media resources.

In this situation, Group B is relatively less able to respond to Group A if Group A attacks. Further, Group A can use its disproportionate media presence to attack Group B if it agitates about historical discrimination. Without restrictions on racial vilification, these could be racial attacks, which are harmful to Group B.

[Amending 18C is pointless — bigots already speak freely]

In this case, the less powerful group would be reticent to speak out about discrimination, restricting their ability to make a statement for a “genuine purpose in the public interest”, or even from making an accurate report on the status quo. That is, the less powerful group’s freedom of expression is restricted.

Limits on racial vilification function to prevent powerful groups from dominating, and restricting less powerful groups from speaking about discrimination.

Now, suppose the legislature limits racial vilification. In this case, the powerful group can no longer vilify group B. But because such vilification was never in the public interest (see above), this does not constitute a relevant restriction on freedom of expression. However, the relatively less powerful group can now highlight existing discrimination without fear of invalid, and race-hate-filled, reprisals.

In the current political climate, this means that restrictions on racial vilification are required to protect relatively new immigrant populations from being vilified; and thus, from having their freedom of expression curtailed. Such restrictions, as indicated, would in no way restrict legitimate political speech. In this case, Section 18C of the Racial Discrimination Act could indeed enhance freedom of expression for some people while having little if any adverse impact on any other person’s freedom.