Freedom from hate speech

The Sunday Star
Legally Speaking by Roger Tan

The debate currently raging in Australia about amending or repealing section 18C of its Racial Discrimination Act, 1975 is rather interesting.

DURING the recent election, Prime Minister Tony Abbott and Attorney-General George Brandis had pledged to repeal section 18C.

It all started after journalist Richard Bolt was found to have contravened the RDA in two of his articles written in 2009 and published in The Herald Sun and on its online site, titled “White fellas in the black” and “White is the new black”.

As reported in the case of Eatock v Bolt, 2011, Eatock had complained that Bolt’s two articles had conveyed offensive messages about her and people like her (that is high profile and fair-skinned Aboriginal people) in that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could avail to the benefits meant for Aboriginal people.

Justice Bromberg ruled that the defences and exemptions allowed under section 18D of the RDA, such as if the act was done reasonably and in good faith for purposes of artistic work or public interest or making a fair comment, had no application because the articles contained factual errors.

Hence, this has now appeared to be the first task of the Abbott government, that is to remove this racial vilification law. In Brandis’ view, repealing section 18C would, in fact, strengthen and restore freedom of speech in Australia.

“You cannot have a situation in a liberal democracy in which the expression of an opinion is rendered unlawful because somebody else ... finds it offensive or insulting,” said Brandis in The Australian recently.

In other words, free speech is about allowing other people to say or write bad and rude things about you which you do not like.

That was exactly what Abbott said in August when he was the Opposition Leader: “If free speech is to mean anything, it’s others’ right to say what you don’t like, not just what you do. It’s the freedom to write badly and rudely. It’s the freedom to be obnoxious and objectionable.”

What is even more interesting is that the Abbott government had last Tuesday appointed a strong critic of the Australian Human Rights Commission, Tim Wilson, to be a new commissioner.

Formerly a policy director of the Institute of Public Affairs which had earlier advocated the abolition of the Commission, Wilson wrote at the same time in an op-ed piece in The Australian, “The building blocks for a free society”, on Dec 18 that Brandis had asked him, as Australia’s next human rights commissioner, to focus on traditional liberal democratic and common law rights, particularly article 19 of the International Covenant on Civil and Political Rights (ICCPR).

He added: “As human rights commissioner, I will seek to reorient the human rights debate towards liberal democratic values and the philosophy of individual freedom.

“The most obvious freedom of speech issue this parliament will face is the Coalition’s promise to repeal section 18C of the Racial Discrimination Act.

“Section 18C has recently been controversial because of the Andrew Bolt case but, as its supporters are first to say, it has been used against many other Australians.

“I will be urging the full repeal of section 18C. It is an unjustifiable limitation on free expression. The best way to undermine offensive or hateful language is not to shut it down, it is to challenge it, expose it for its flaws. The solution is more speech.”

However, I wonder just how Wilson intends to go about doing it when complaints to the Human Rights Commission about racial vilification in his country have also increased over 50% last year.

It is, therefore, a matter of concern whether this would now become the new direction of the Commission when human rights are certainly not just about freedom of speech but also freedom from hate speech and discrimination.

In a nutshell, section 18C makes it unlawful for a person to do an act which is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person because of the other person’s race, colour or national or ethnic origin.

In this respect, I am rather surprised that Australian leaders such as Nicholas Xenophon, who takes a keen interest in Malaysian politics, is rather silent about this. This is especially so because a repeal of section 18C may also increase xenophobic attacks and hatred against foreigners who work and study in Australia.

To my mind, if the intention of repealing section 18C is to creat­e a free-for-all environment which allows a person to indulge even in hate speech as in America because it is allowed there by the First Amendment of the American Constitution, then Australians must be prepared to face with more right-wing anti-multiculturalism politicians like Pauline Hanson or intolerant characters like Pastor Terry Jones.

In fact, there is no express provision, taking the form of a bill of rights such as the First Amendment, in the Australian Constitution.

At best, there is only an implied freedom of communication at common law which cannot be curtailed by the executive and legislature (see Lange v Australian Broadcasting Corporation, 1997).

Of course, it is well and good to give effect to the words of Evelyn Beatrice Hall that “I may not agree with what you say, but I will defend to the death your right to say it!”

But in my humble opinion, there is no country, not even America, which practises absolute freedom of speech.

Justice Oliver Wendell Holmes said in Schenck v. United States (1919) that there could still exist an exception, that is, if the words used are used in such circumstances and are of such a nature as to create a clear and present danger, for example, falsely shouting fire in a theatre when there is no fire and thus causing a panic.

In this respect, Wilson should not have conveniently left out article 19(3) of the ICCPR in his afore-­mentioned article, which says that the exercise of freedom of expression carries with it special duties and responsibilities.

It may therefore be subject to certain restrictions as are provided by law and are necessary for respect of the rights or reputations of others and for the protection of national security or of public order or of public health or morals.

Article 20(2) specifically prohi­bits any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

Similarly, there are also restrictions placed on freedom of expression as stated in Article 10 of the European Convention of Human Rights.

In England, hate speech is an offence if it stirs up racial and religious hatred as provided by the Public Order Act, 1986, as amended by the Racial and Religious Hatred Act, 2006.

It follows that it cannot be gainsaid that in most cases, hate speech is targeted at the minorities and the racially marginalised. This is the group that actually requires the most protection under racial vilification laws.

To my mind, freedom from hate speech and discrimination is as much a human right as freedom of expression simply because it is a humongous task for a normal human being to balance between the person’s right to offend and another person’s duty to tolerate the intolerant.

That said, this tolerance for intoleranc­e approach has no application in Malaysia. Our right to free speech under Article 10 of our Federal Constitution is not absolute. It is still subject to laws relating to, for example, national security, public order, morality and laws providing against contempt of court, defamation or incitement to any offence such as the Sedition Act, 1948.

Having said that, we too should seriously examine the need for havin­g a similar law such as section 18C in our statute books.

Perhaps the Sedition Act can be replaced by such a law which in my view is all the more necessary in a multiracial, multicultural, multi-religious and multilingual society like ours. It may well be the elixir to national unity and harmony in our country.