Home' HR Monthly : February 2017 Contents 46
Debate about freedom of speech and
freedom from 'hate' speech polarises
opinion. Here's what matters for HR.
BY AARON GOONREY & EMMA LUTWYCHE,
LANDER & ROGERS
There has been a lengthy public debate about
section 18C of our Racial Discrimination
Act, and its relationship to freedom of speech
centring around the concept of offensive
behaviour relating to race. Naturally, there is a
hugely diverse range of opinions on the topic.
Section 18C has been in the Racial
Discrimination Act since 1995. It makes it
unlawful (but not criminal), for a person to
do something -- for example, say or write
something -- because of another person's race/
colour/nationality/ethnicity, if it is reasonably
likely to "offend, insult, humiliate or
intimidate" that other person.
A recent dispute arose over aFacebook
post by a student at Queensland University of
Technology which stated: "Just got kicked out
of the unsigned indigenous computer room.
QUT stopping segregation with segregation?"
It ended in the Federal Circuit Court which
dismissed a complaint by the indigenous
administrative officer that the post constituted
hate speech and breached 18C.
While this may not necessarily seem very
controversial, especially since the court found
that the Facebook post was not unlawful under
18C, it has sparked debate about the scope of
18C and whether it should be more limited.
Now, Liberal senator Cory Bernardi has
proposed a bill which would remove the words
"insult" and "offend" from 18C, because
he says these words have led to 18C being
We've ventured into this territory before. Back
in 2014, attorney general George Brandis
drafted changes to section 18C which, in his
view, would no longer make it "illegal to hurt
the feelings of others".
The proposed changes were backed by
conservative commentator Andrew Bolt. Bolt's
interest in the matter was personal, as in 2011
he had been found to have breached 18C. His
breaches came in the form of two articles he
wrote about light-skinned Aboriginal people
identifying as Aboriginal for personal gain. In
defending his articles, Bolt argued that 18C
restricted his right to free speech.
On the other side of the argument are those
in favour of freedom from hate speech.
Those on this side favour keeping 18C in its
current form, saying that it strikes the right
balance of protecting those vulnerable to
the harmful effects of race-hate speech
(generally those in minority cultural and
The champions of freedom from
hate speech contend that the
intention of 18C is to protect people
against racial vilification and hate
of freedom from
hate speech contend
that the intention
of 18C is to protect
people against racial
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speech, that is, everyone should be able to live
without being offended, insulted, humiliated
or intimidated based on their race.
The pro-18C brigade also point out that the
"punishment" for breach of 18C is minimal
at best. The first port of call for someone
who has a complaint about hate speech is the
Australian Human Rights Commission, which
will attempt to conciliate the matter. If it is not
resolved, then the AHRC has no teeth to make
any binding decisions. For those rare cases
that do move from the AHRC to the federal
court jurisdiction, damages are rarely more
than modestly symbolic.
Also in their arsenal is the fact that there
are a number of other pieces of legislation that
impinge on freedom of speech. The pro-18Cers
say that while Brandis, Bolt and Bernardi
attack 18C, they ignore the laws preventing
doctors speaking out about the treatment of
asylum seekers in detention, or the laws in
NSW limiting the right to protest in public.
Regardless of which side of the debate
you support, with Bernardi's proposed draft
bill before the senate, it is likely to continue
given the strongly held beliefs and practical
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