Free Speech: Australia Considers Amending Law so that “Offense” and “Insults” are No Longer Criminal


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Australia’s Racial Discrimination Act (RDA) has been the subject of controversy in recent years, especially since notorious columnist Andrew Bolt was convicted under the Act in 2011 for his writings:

[T]wo articles written by Bolt for his employer, the Herald and Weekly Times, implied light-skinned people who identified as Aboriginal did so for personal gain. The articles were headlined “It’s so hip to be black” and “White fellas in the black”.

While previous debates have sometimes involved the entire RDA, the main current compromise proposal gaining traction leaves the law intact, but removes the words “offend” and “insult” from the text. The language appears in section 18c of the Act.

An official government site describes the law:

Since the introduction of provisions dealing with racial hatred in 1995, the Racial Discrimination Act makes it unlawful to insult, humiliate, offend or intimidate another person or group in public on the basis of their race. Specifically, the Act states:

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 group of people, and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.

There are exemptions for the following:

(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 the making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any matter of public interest if the comment is an expression of a genuine belief held by the person making the comment

The national elections last month produced a hard-fought result where the Liberal Party (generally considered conservative) squeaked ahead of the Labor Party (generally considered the opposition) more than a week after the elections. Incumbent Prime Minister Malcolm Turnbull remained in his position.

DERRYN HINCH SUPPORTS THE CHANGE

Newly elected independent Senator Derryn Hinch was interviewed on television:

Derryn Hinch, Senator-elect for Victoria, said he supported unwinding the law “1000 per cent” and had discussed the issue with Liberal Senator Cory Bernardi and re-elected Family First Senator Bob Day.

“Watch out for 18c because that is going to be really right back on the table,” he told ABC radio on Friday. “I want to scrap it. I’m offended and insulted by any legislation that says ‘offend and insult’ anybody.”

Derryn Hinch has been a radio and television celebrity for decades. He has been arrested multiple times. Most recently, he was sentenced to 50 days in jail for publishing details about Ernest Bailey, rapist and killer of Jill Meagher. Earnest Bailey pleaded guilty and was sentenced to 35 years. Daily Mail reported on the Derryn Hinch case:

At Bayley’s trial it was revealed that he has an extensive history of sexual violence and had been on parole at the time he murdered Ms Meagher. While sentencing Hinch last October, Supreme Court Justice Stephen Kaye said that publishing material that reflected adversely on Bayley’s character was a ‘serious infraction’. He added that it had interfered with the administration of justice by encouraging a ‘trial by media.’

Before going to jail, Derryn Hinch issued a statement, “I am electing to go to jail for 50 days to protest against a court system which sees rapists and murderers let out on parole to rape and kill again.” After he was released, Derryn Hinch decided to create a party and run for Senate.

AMENDMENT TO RDA IS BACK

The bill to amend the RDA was withdrawn last year by Family First senator Bob Day. It was understood then that it would be re-introduced. Now, with the election over, it is back. Derryn Hinch is a major supporter.

OPPOSITION PARTY

Bill Shorten, leader of the Labor Party, said that changing the RDA should not happen “in the life of this Parliament.” Despite this widely-held domestic view, the international Socialist Equality Party warned in 2014 during an earlier debate:

The claim made by Attorney-General George Brandis and other government spokesmen that they have been driven [to amend the RDA] by concerns to defend “freedom of speech” is a lie… [But] In defence of its democratic rights, the working class must prosecute a struggle against all forms of xenophobia, nationalism, racism and communalism. But it must do so independently of and in opposition to the capitalist state.

PROPOSAL TO AMEND IS “DOOMED”

The Australian press calls the amendment to remove “offense” and “insult” from the language of the law “doomed,” but Darryn Hinch is pushing hard:

“I’m not so sure it’s as dead as they say it is,” he told 3AW radio on Monday. “We will split the Liberals on this. There are a lot of Liberals, Tony Abbott, George Brandis, who pushed very hard for it early in the Abbott years.”

With the balance of the government so close, and with the Labor Party generally opposed to the change, it seems like the vague criminalization of “offenses” and “insults” will remain for now. As long as power is in the balance in a divided Australian electorate, this football will continue to fly.

Featured picture from interview.