The Existence of Free Speech in
Australia:
Analysing the Racial
Discrimination Act
Columnist Janet Lightning has found herself accused of
breaching s18C of the Racial Discrimination Act 1975 (Cth), following the
publication of a newspaper column and blog in which she made remarks regarding
particular individuals and races that could be considered racist, in order to
assert her opinion that Australia should cut back its immigration and refugee
programs. She made the comments under the belief that there is an implied
freedom of political communication under the Constitution.
1. Outline:
Janet is seeking an advisement as to the constitutionality
of s18C of the Racial Discrimination Act (Cth), in regards to the implied
freedom of political communication. Her case will be outlined, as well as the
section she is accused of breaching. An analysis of the constitutionality of
the Act will also be discussed, especially regarding whether an implied freedom
of political communication exists in light of this section of the Act.
2. Case Outline:
In her newspaper column Ms Lightning accused some individuals
of choosing a particular racial identity in order to benefit from the
Government’s welfare programs. She went on to name particular races that she
felt did not sufficiently contribute to Australian society. She used these
points to justify her position that Australia should look at cutting back its
immigration and refugee programs, and reducing the number of immigrants accepted
from particular named races.
Following the publication of this column Ms Lightning has found herself accused of breaching s18C of the Racial Discrimination Act 1975 (Cth).
Following the publication of this column Ms Lightning has found herself accused of breaching s18C of the Racial Discrimination Act 1975 (Cth).
3. Racial Discrimination Act 1975 (Cth):
The Racial Discrimination Act 1975 (Cth) was passed in order
to implement into law Australia’s obligations under the International
Convention on the Elimination of all forms of Racial Discrimination.
Section 18C of the
Racial Discrimination Act 1975 (Cth) covers offensive behaviour because of
race, colour or ethnic origin.
S 18C (1) 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 a group of people; and
(b) the act is done because of the race, colour or national
or ethnic origin of the other person
or of some or all of the people in the group.”
The comments made by Ms Lightning could be considered a
breach of this section as firstly they were made in the public sphere, through
her newspaper column and blog. S 18C(2) outlines when an act is considered to
have being made in public.
S182(2)(a) states an act is not done in private if it; “causes
words, sounds, images or writing to be communicated to the public.”
Janet’s comments fall under this section as they were communicated to the
public through various mediums, those being, print in a public newspaper, and
online through a public blog.
The next element
of this section states the act; being the publication of the writing, is likely
to offend or insult another person or group of people.
Following on from this the Act states that the act must have been done due to
the race, or ethnic origin of that other person, or group.
In her writing Ms
Lightning made comments that were likely to offend or insult a particular
racial group, by accusing them of adopting this identity to benefit from
Government welfare programs. She went on to name particular races of not
contributing to Australian society. These comments were made based on the ethnic
race of the people she identified. Her comments would appear to in fact be a
breach of s 18C of the Racial Discrimination Act.
These comments
were made by her under the pretense of political freedom of speech to convey
her opinion that Australia should cut back its immigration and refugee
programs.
4. The Constitutional Validity
of the Racial Discrimination Act 1975 (Cth):
Section 51 of the Constitution gives the Commonwealth Parliament the power to “make laws for the peace order and good government of the Commonwealth” in regards to the topics listed in the section.
4.1. Race Power:
Section xxvi lays out the Commonwealth’s race power, stating that Parliament has power to make laws for “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.” However the reference to the exclusion of Aboriginal people was removed in a referendum in 1967 giving Parliament the power to pass laws applying to them.
Section xxvi lays out the Commonwealth’s race power, stating that Parliament has power to make laws for “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.” However the reference to the exclusion of Aboriginal people was removed in a referendum in 1967 giving Parliament the power to pass laws applying to them.
In Koowarta v Bjelke-Peterson [1982] HCA 27, the High Court
found that as the Racial Discrimination Act addressed discrimination against
all races, and not just a particular race it had no basis under this section of
the Constitution.
Chief Justice Gibbs stated that, “a law which applies equally to the people of
all races is not a special law for the people of any once race.”
In his judgment Justice Wilson said; “There is a touch of
irony in the fact that the Commonwealth seeks to support the validity of an Act
to give effect to these principles [of equality and non-discrimination] by
relying on a power to enact discriminatory laws, whether for good or ill, for
the people of any race.”
This section of the Constitution enables for the passing of
laws that discriminate between the people of the race the law was made for, and
everyone else.
While the Racial Discrimination Act is designed to eliminate discrimination
amongst all races.
4.2.
External Affairs Power:
In Koowarta v Bjelke-Peterson,
the High Court found the Racial Discrimination Act to be valid under the
Commonwealth’s external affairs power, which is covered under s 51 xxix of the
Constitution.
The term external affairs is not defined in the Constitution.
The court found that the Act was intended to give effect to
the United Nations Convention on the Elimination of all Forms of Racial Discrimination
(CERD).
Australia signed the convention on October 13, 1966 and the government argued
that the Act fell under this power as it gave effect to Australia’s
international obligations as a signatory to the convention.
The question the court had to consider was whether the Act
could be considered an ‘external affair’ due to it applying entirely within
Australia.
The government’s argument was that as a signatory to the convention Australia’s
international reputation would be damaged if it were unable to fulfill its
obligations under the convention.
The court found that the Act was valid as it did in fact fall within the
Government’s ‘external affairs’ power.
The decision in Koowarta v Bjelke-Peterson validated the
Racial Discrimination Act under the commonwealth’s ‘external affairs’ power,
outlined in s 51 xxix of the Constitution. What must be considered though is
its validity in light of the implied freedom of political communication that is
present within the Constitution.
5. Freedom of Political Communication:
Ms Lightning made the remarks in question under her belief
of the existence of an implied freedom of political communication within the
Constitution, and there is precedent to justify the existence of this freedom.
Previously the High Court has highlighted ss 7 and 24 of the Constitution as
implying this right, stemming from the aim of these sections for the protection
of representative government.
The High Court has described freedom of communication regarding political
matters as an “’essential’, ‘necessary’, ‘indispensable’, ‘presupposed’, or
‘inherent’ element of representative democracy, concluding that within the
Constitution rests an implied protection of freedom of ‘political’
communication.
Defamation and the implied freedom were discussed in Lange v
Australian Broadcasting Corporation (1997) 189 CLR 520, where David Lange, who
at the time was the Prime Minister of New Zealand, brought an action in
defamation against the ABC for comments made in the program Four Corners.
The court in its reasoning accepted that protecting the reputation of an
individual was appropriate and adapted, and that political comments could be
defamatory.
5.1
Freedom of Speech:
Article 19 of the Universal Declaration of Human Rights
(UDHR), adopted by the United Nationals General Assembly in 1948 states that;
“Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers.” On December 10, 1988 to mark the 50th anniversary of the declaration
the Commonwealth government reaffirmed its principles and pledged to give
“wholehearted support” to these.
Australia is also signatory to the 1966 United Nations
International Covenant on Civil and Political Rights (ICCPR) treaty, in which
Article 19 states; “everyone shall have the right to freedom of expression.”
However for such a treaty to be made into law the Commonwealth Government must
pass an Act of Parliament affirming its principles.
Only certain aspects of this treaty have being made into law in Australia, for
example the Human Rights Commission Act 1981.
The reference to freedom of expression has never been implemented, and is
therefore unenforceable by Australian courts.
Even though there is support for the theory of freedom of
speech, there is very little actual law to support it. The Constitution does
not contain any provision relating to the principle, leaving the door open for
the Government to pass legislation that restricts or censors speech, as long as
these laws are within its constitutional power.
5.2.
The Construction of the Implied Freedom of Communication:
Decisions by the High Court in the 1992 cases of Nationwide
News Pty Ltd v Wills (1992) 177 CLR 1,
and Australian Capital Television v The Commonwealth (1992) 177 CLR 106,
indicated the existence of an implied freedom of communication within the
constitution. However it is limited to speech and communication on matters
relating to politics and government.
In Lange v Australian Broadcasting Corporation the court
found this implied freedom to be ongoing, and not limited to election periods,
due to its purpose being the functioning of a representative government. This implied freedom allows for a freedom of communication between voters and
their representatives, and must therefore operate continuously.
The court did highlight the fact that the implied freedom
was a negative right, in that its operation acts as a restraint on the
executive and legislative power to the extent that these powers would burden
the implied freedom.
The right to publication was also upheld in Lange v
Australian Broadcasting Corporation where the court found that the publication of
political matters was justified as voters have an interest in receiving this
information.
Rather than legislating for freedom of speech, Governments
at various levels have legislated to prevent free speech in certain
circumstances.
With no protection of this fundamental freedom under Australian law legislation
such a defamation laws and racial vilification laws, such as that in question,
the Racial Discrimination Act, have curtailed the right to freedom of speech.
It is best described as a residual freedom, with free speech being that which
is not restricted by laws of limited scope.
In Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR
104,
the definition of political communication was widened so that it encompassed
matters of general public debate, which “might inform public opinion on a range
of issues.”
However this broad definition was later rejected in McGinty v Western Australia
(1996) 186 CLR 140,
where the court found it to be “too far removed from the text of the Constitution.”
It was emphasized that the implied freedom of political communication had to be
read in a manner consistent with the construction of the Constitution, and not
on the broader concept developed in Theophanous.
In its current form this implied freedom is not a ‘right’,
but rather an immunity from some legislative and executive powers.
It is best constructed as an immunity from actions of Government in relation to
political communication, to protect our system of representative government.
There must be a freedom of communication on political matters to protect
individual autonomy, as people need access to ideas in order to vote in an
informed way, and be involved in public debate.
5.1
The Validity of s 18C:
A test involving two stages was developed in Lange v
Australian Broadcasting Corporation to test the implied freedom of political
communication.
Firstly the law in question must be analysed as to “whether [it] effectively
burdens freedom of communication about Government or political matters in terms
or effect.” Secondly “whether the law is reasonably
appropriate and adapted to serve a legitimate end in a manner compatible with
the maintenance of the constitutionally prescribed system of representative and
responsible government.”
If the answer to the first element is yes, and to the second element no, then
the law is invalid.
When applying this test to the current circumstances the
following can be found. Firstly it must be ascertained whether s 18C of the
Racial Discrimination Act burdens freedom of communication regarding
‘Government or political matters’. The section in question makes it unlawful to
do an act, which could “offend, insult, humiliate or intimidate another person or a group of people.” Applying the
negative reading of the ‘right’ of implied freedom, its aim is to free speech
as a freedom from intervention from the Government. Therefore it must be ascertained
whether s 18C of the Act intervenes with an individuals ‘right’ to freedom of
political communication.
Making comments in a negative light that could offend another person, and doing
so because of their race, colour or origin, could be seen to intervene with a
freedom to communicate on political matters.
A defence to s 18C that would negate any intervention of
this ‘right’ lay in s 18(D) of the act, which states, “Section 18C
does not render unlawful anything said or done reasonably and in good faith.” Therefore if the comments are
made in good faith, and are “a
fair comment on any event or matter of public interest if the comment is an
expression of a genuine belief held by the person making the comment,” they will not be found to breach
s 18C, limiting the impact of its intervention of the implied freedom of
political communication.
The second stage of the test asks whether the law is
“reasonably appropriate” in serving a legitimate end in maintaining our system
of representative government.
In Coleman v Sellars (2001) 181 ALR 120 the defendant Patrick Coleman was
convicted of breaching a council bylaw, after he held up a flag, stood on a
table and loudly discussed political issues in a public mall.
In this case the court found the law, which involved prohibiting any person
from taking part in any public demonstration or public address in the Flinders
Pedestrian Mall, to burden the right to freedom of political communication,
however deemed to be reasonably appropriate, validating its operation.
This comments made by the defendant were purely political in nature, however
the law was found not to impact on the freedom of political communication.
6. The Political Nature of Ms Lightning’s Comments:
The question that must be answered in this case is whether
the comments made by Ms Lightning were in fact political in their nature.
A recent decision that is particularly relevant to Ms
Lightning’s situation is that of Eatock v Bolt [2011] FCA 1103, in which the
defendant, Andrew Bolt, was found guilty of breaching s 18(c)(1) of the Racial
Discrimination Act.
The case was based on articles written by Mr Bolt that implied light-skinned
peopled who identified themselves as Aboriginal did so for personal gain.
His defence lay in s 18D of the Act.
Janet could also use this defence and argue her case under s18D(c)(ii). However her comments were extremely similar to those
made by Mr Bolt, and in that case Judge Bromberg ruled that Mr Bolt’s comments
were not made in good faith, and that “the language utilized in the newspaper
articles was inflammatory and provocative.” For the defence to be successful the comments must be
done in “reasonably good faith” and in a pursuit of public interest.
Ms
Lightning’s comments would appear to fail this defence as they could be
considered inflammatory, and not made in “reasonably good faith,” as she named
particular races and defamed the entire population of these races.
7. Conclusion:
Following the judgment against him Mr Bolt commented to
reporters that the decision was “a terrible day for free speech in this
country,” although it appears there is a sufficient defence built into the
Racial Discrimination Act to protect free speech when in is done in good faith
in pursuit of public interest.
The comments made by Ms Lightning are likely to be found to breach s 18C of the
Act, which following analysis appears to be constitutionally valid. The
application of the test developed in Lange v Australian Broadcasting
Corporation backs up the laws validity, deeming them to be appropriate.
No comments:
Post a Comment