“Total liberty for wolves is death to the lambs” – Isaiah Berlin (20th Century Philosopher)

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By: The Hon Michael Danby MP

Extreme libertarian ideology is fuelling The Liberal Party’s move to weaken the Racial Discrimination Act. The Attorney-General stood up in the Senate defending even a bigot’s right to freedom of speech. Yet, in a contradicting move, the Government has decreed that Government Departments such as Prime Minister and Cabinet should bring in rules prohibiting their staff from criticising the Government on social media, even if done so privately or anonymously. Employees are even being encouraged to report each other if they see colleagues criticising the government. So apparently bigots have a right to freedom of speech but public servants don’t.

18C was introduced into the Racial Discrimination Act in 1995 under Paul Keating. For 11 years under Howard, and in the 8 years since, this effective protection against hate speech remained untouched. There were 1650 complaints, 500 of those dealt with conciliation and most of the rest were dropped; only 20 cases went to court.

Now, however, Attorney-General George Brandis has proposed major changes. The reason for the current government’s change of heart appears to be almost solely as a result of the successful case brought against the government’s most valiant tribune, Mr Andrew Bolt.

Although Justice Bromberg’s decision in 2011 regarding Bolt’s comments on ‘fair-skinned aboriginal people’ seems severe, it was but one instance. A wise government should think very carefully about sweeping away 18C because of one controversial (and unappealed) decision. There is a general misunderstanding about how 18C and other provisions of the Racial Discrimination Act work. As stated above, the vast majority of complaints under 18C do not go to court. The whole purpose of section 18C is to promote tolerance by bringing parties together to discuss the subject of their complaint and arrive at a conciliated and agreed outcome. Common ways of resolving a dispute through conciliation are via an apology, or via an agreement to remove offensive material, or sometimes via the implementation of training.

Bolt’s local paper, the Melbourne Herald Sun, editorialised that “the underlying problem with the ill-considered effects of Section 18C is that if someone says they have been offended or humiliated, who is to challenge them?” This widespread misunderstanding, spread by the Boltists, suggests that if someone subjectively feels offended or humiliated, then this is enough to breach 18C. Of course, it is not. As Justice Drummond has noted “whether an act contravenes (18C) is not governed by the impact the act is subjectively perceived to have by a complainant”. Instead, as the Attorney-General said when tabling the Racial Hatred Act back in 1994; 18C “requires an objective test to be applied so that community standards of behaviour rather than the subjective views of the complainant are taken into account.”

As Joe Caputo, Chairman of the Federation of Ethnic Communities Council said; with 18C “(t)here’s not a carte blanche to vilify people because they have different coloured skin and are of different backgrounds … But there is enough room for speech and genuine debate to take place when it is done in a respectful manner.” The leaders of Australia’s Chinese, Greek, Muslim, Jewish, Armenian, Lebanese, Vietnamese and Indigenous community groups are united in their calls to retain 18C.

Individual leaders of the Indigenous community have publicly condemned the proposals. Dr Tom Calma, the co-chairman of Reconciliation Australia and the Race Discrimination Commissioner from 2004-2009 has stated that “this will put back reconciliation, understanding [and] respect … the protections are there to protect people from being vilified but also to be a deterrent to potential offenders”.

Prime Minister Tony Abbott’s Indigenous Advisory Council Chairman Warren Mundine has wondered out loud why the government has launched this crusade for free speech, and even Liberal Indigenous MP Ken Wyatt has warned that he might cross the floor if these changes are put to Parliament, stating that the new wording would result in disempowerment and intolerance.

St Kilda Shule’s Rabbi Yaakov Glasman has voiced his own vehement opposition when he said: “I am absolutely astonished and dumbfounded that in the twenty first century… the Government… is actually considering repealing the Racial Discrimination Act as it currently exists. Do they not remember why it was put into place in the first instance? It was there, and is there, to protect minority groups and to ensure we are able to live in harmony alongside each other”.

Now that the government has released the draft copy of its so-called Freedom of Speech Bill, we can fully appreciate the magnitude of the Attorney-General’s plans. Not only does the amendment drastically reduce the scope of 18C, it restricts the revised 18C to the words “vilifies” or “intimidate” only. Both these new restrictive words are now narrowly defined. Even more worrying though is the new bill’s exceptions clause, which no longer contains any requirement for reasonableness or even accuracy. Instead, any comment made under the guise of any kind of public discussion of any political, social, cultural, religious, artistic, academic or scientific matter – a broad exemption clause if ever there was one. Indeed, it’s hard to imagine under Brandis and Abbott’s version of racial discrimination laws that any kind of comment, no matter how racist or bigoted, would fail to be exempted by this clause.

It seems the IPA freedom fighters have gotten their wish – 18C looks to be effectively finished after 19 years protecting and conciliating vulnerable members of our pluralist society. It was good enough for John Howard but it seems that the Bolt example has shattered political goodwill in Canberra.


The Hon. Michael Danby MP

Federal Member for Melbourne Ports

Shadow Parliamentary Secretary to the Leader of the Opposition,

Shadow Parliamentary Secretary for the Arts

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