Freedom of Speech and Hate Speech in Australia

Freedom of speech is an important right, but it is not absolute. Like all other rights, it can at times clash with other fundamental rights. The balance struck between conflicting rights forms part of the fundamental nature of a society. Across the globe different balances have over time been struck, and occasionally adjusted.

Changes to the balance between freedom of expression and other rights are usually the result of dramatic events. Freedoms are strengthened when governments overreach and the public respond to protect their rights. New protections are created when human tragedy creates a demand for government action. The role of Nazi propaganda in laying the ground work for the Holocaust provides a lesson on the danger speech can pose.

The International Convention on Civil and Political Rights provides for the protection of freedom of expression. It holds that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice” (Art 19.2). This protection, however, “carries with it special duties and responsibilities” and “may therefore be subject to certain restrictions... (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals” (Art 19.3). The convention goes on to make a specific carve out for hate speech, providing that, “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law” (Art 20.2). The convention highlights the idea of striking a balance between the competing rights.

More recently, a European initiative to counter racism and xenophobia online, the “Additional Protocol to the Convention on cybercrime”, has expressed a similar idea. The preamble to the addition protocol explains the “need to ensure a proper balance” between the Internet’s role as an “unprecedented means of facilitating freedom of expression”, and the “risk of misuse or abuse” that Internet communication can enable.

In the US, the extension of the first amendment’s protection to cover hate speech was not without opposition. In the famous case of Collin v Smith, which involved a uniformed neo-Nazi march through the predominantly Jewish village of Skokie, Justice Spreecher provided a strong dissent endorsing the view of an earlier case calling such action ‘terror tactics’ which could create a climate where ‘real discussion dries up and disappears’. David Kretzmer, who argues against the suppression of unpopular views, has argued that hate speech deserves a special exception. He justifies this based on the way hate speech creates and perpetuates racist views in times of calm, which can later, in times of strife, lead to ‘extreme political action which is acceptable only because such attitudes and beliefs are prevalent’. Stopping the hate speech, or at least making every effort to limit its spread, is essential to stop the worst kinds of human rights abuses, including genocide, in the future.

Having just past its first 100 days in office, Australia’s new government has embarked on a campaign that will undermine Australia’s protection against hate speech. The Attorney-General, George Brandis, cause serious concern in Australia’s community organisations when he announced that his first bill before the Parliament would seek to repeal the key parts of Australia’s Racial Discrimination Act.  On Tuesday that campaign took another stride forward with the appointment of Australia’s first “Freedom Commissioner”. The new Commissioner, Tim Wilson, has previously said he is not “convinced there is a human right against discrimination”. He is also in favour of a more absolute freedom of speech that makes no exception for protecting other human rights. He is specifically in favour of repealing Section 18C of Australia’s Racial Discrimination Act, the section which makes it unlawful to “offend, insult, humiliate or intimidate” a person because of their race.

In a column he wrote in today’s Australian Mr Wilson selectively cited from the International Covenant on Civil and Political Rights, discussed above. He used it to show how free speech is an important right, but he failed to mention the “special duties and responsibilities” which sometimes require freedom of speech to be restricted. He also failed to note that the same covenant explicitly prohibits incitement to discrimination. In a think tank, such omissions that give a misleading impression of international law may be part of the “game”. Government officials, on the other hand, have a duty of honesty and candour. That duty is poorly served when the legitimate limits on freedom of speech are not part of the conversation.

The Racial Discrimination Act implements Australia’s international obligations under the International Convention Against All Forms of Racial Discrimination. A repeal of Section 18C removes what little protection Australia currently provides. It was this provision that was successfully used against Holocaust denier Fredrick Toben. Unlike many other countries, in Australia the existing law provides only civil remedies, not criminal sanctions. This also means an individual, rather than the state, must take on the prosecution. The law has many exceptions for areas like the arts, science, journalism and anything else in the public interest. The only catch to the exemptions is that the speaker must be acting “reasonably and in good faith”, a simple requirement to prevent abuse of the exemption.

The Racial Discrimination Act has come under attack in Australia since Alan Jones, a journalist / radio broadcaster, was ordered by a court to pay compensation for a breach of the Racial Discrimination Act. The court found the exemption did not apply as Bolt’s articles “contained erroneous facts, distortions of the truth and inflammatory and provocative language”. Bolt’s comments are the sort of stirring up of racially based hatred that Australia’s Racial Discrimination Act, and international law for that matter, seeks to prevent.

When efforts are made to undermine a human rights law that is working exactly as it should, it’s time for people, not only in Australia but in the international community, to start getting concerned. I was in Hungary earlier this year for the meeting of the World Jewish Congress. The idea that Australia, with its vibrant Jewish community, which includes a large contingent of Holocaust survivors and their decedents, could see a dismantling of human rights protections, followed by rising antisemitism is alarming. The idea that some years from now it might be Australian Jewish communities that need the help of World Jewry to protect our communities seems surreal. They say it can’t happen here; but the laws and institutions that protect us may well be able to crumble away. 

Dr Andre Oboler is the CEO of the Online Hate Prevention Institute, an Australian charity that work to combat all forms of online hate. He is also co-chair of the Online Antisemitism Working Group of the Global Forum to Combat Antisemitism.