Debate about freedom of speech and what constitutes hate speech polarises opinion in Australia. Here’s what matters for HR.

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 of hate speech. 

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 “misused”.

(How do you think hate speech and freedom of speech should be monitored in the workplace? Read our article.)

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 racial groups).

The champions of freedom from hate speech contend that the intention of 18C is to protect people against racial vilification and hate 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 ramifications involved.