Vicious But Vital Voices?
Freedom of Expression and Racial Vilification Legislation in Australia

Freya Carkeek, whose 1993 Press Council Prize winning thesis looked at the issues involved in Australian racial vilification legislation and a possible High Court examination of it, presents a brief version of that thesis. The thesis was written before the current draft of the legislation was tabled in Parliament.

When white settlers stepped ashore in 1788, Australia's history of racial diversity began. Extensive post-war immigration, culminating most recently in new arrivals from a number of Asian countries, has painted a richly multicultural demographic profile for Australia. While Australia is commonly viewed as a highly tolerant society, both anecdotal and formal evidence would seem to give the lie to this assumption. Our society might have a comparatively low incidence of gross acts of organised racism, but the more invidious ill, 'casual' prejudice, is still widespread and flagrantly racist expression is much more than an occasional aberration. Racial violence and overt acts of discrimination are blatantly harmful, but insult,ridicule and contempt carry their own ability to wound deeply.

Broadly defined, racial vilification is a public form of expression which declares or promotes racial intolerance. It can include the casual comments of individuals, the publications and broadcasts of the media, and the organised propaganda campaigns of committed racists. Offensive labels, ethnic jokes and caricatures, negative stereotyping, denial of the realities of racial exterminations, advocacy of theories of racial hierarchy, display of racially intimidating insignia and a range of other behaviours which incite hatred, ridicule or contempt for a racial group can all constitute forms of racial vilification.

It is against this backdrop that the Federal Government is currently considering the introduction of racial vilification legislation. If the format of the Racial Discrimination Amendment Bill 1992 (which reached a first reading, then lapsed with the dissolution of Parliament for the 1993 federal election) is indicative, as is likely, federal racial vilification legislation would not seek to proscribe every form of expression with racially objectionable content. The focus would be on public forms of expression which were likely to stir up hatred, serious contempt or severe ridicule against an individual or group distinguished by race or ethnicity. Exceptions would allow for the good faith reporting of a racially vilifying act and for things said or done reasonably and in good faith for academic, artistic, scientific or other public interest purposes, although these exceptions would not be likely to apply to the most serious forms of racial incitement.

Such a move to use legislation to prohibit racial vilification will be resolutely resisted by advocates of freedom of expression. The legislative proposal places in context two social fundamentals: freedom of expression on the one hand, and the responsibility to promote civic harmony on the other. It is a tension which translates as society's preparedness to keep the channels of communication wide-open to controversial, factious and, perhaps, even injurious voices. This derives from the importance of unrestricted expression conflicting with the need to protect the right of every individual to a dignified, peaceful existence, free from harassment and vilification.

While the tension raises quite abstract theoretical questions, the likely introduction of federal racial vilification legislation demands a concrete consideration of the values which we would have dominantly underpin our society. The potential exists, in light of the High Court's 1992 ruling that the Constitution contains an implied guarantee of free political communication, for racial vilification legislation to be challenged legally. Such a challenge would offer the first opportunity to explore the scope of the constitutional guarantee. This possibility creates a strong practical focus for an analysis of the very different perceptions which proponents and opponents of racial vilification legislation hold about the dynamics of society and the role within this played by law.

Opponents of racial vilification legislation view freedom of expression as an essential social right. They argue that constraints on expression, based purely on content, deeply impair social function. Allowed ample rein to include even the most rugged and ugly debate, freedom of expression is said to give society its vital flexibility and robustness and eventually to lead to improved social cohesion. Unity cannot be willed or imposed by law. So, it is argued, it may be a necessary process of communalism to allow people to stand off from one another, candidly revealing their fears, doubts and criticisms, before real harmony can emerge.

This conviction does not mean that no attempt to restrict expression will ever be entertained; even the most ardent advocate recognises that the principle cannot be absolute. Rather, it requires that expressive words or acts give rise to direct action occasioning a very high level of harm, before the threshold is reached at which prohibitive legislation can be justified as more valuable than the protection of the right to freedom of expression.

While the laws of defamation and contempt and the proscription of obscene speech are well-entrenched limitations on expression which do not fall within this exception, committed proponents of the right to free expression would regard these examples as a similar affront, rather than a justifying precedent for racial vilification legislation.

Racial vilification legislation clashes with freedom of expression because it imposes content-based restrictions. Although there are links to be made between racial vilification and increases in racial violence, it lacks the requisite nexus with immediate action. Racially vilifying expression would be proscribed because its message or subject matter is deemed unacceptable and this strikes at the heart of what freedom expression aims to protect.

Fair-minded opponents of racial vilification legislation do not wish to allow damaging forms of expression to win over 'hearts and minds' nor to gain a permanent foothold. They genuinely believe that in public discussion, where nothing is immune from debate and no artificial restrictions are imposed, reason will prevail to separate the true from the false and the good from the evil.

This argument is rich with rhetoric, but its practicality is also apparent. If publicly aired in a free marketplace of ideas, vilifying expression can be rebutted. Freedom of expression protects the public forum in which racial extremism can be demystified and so disempowered and the more pervasive form of racism, negative stereotyping, vigorously challenged by those exercising their equal right to free expression. Prohibition is notorious for driving an undesirable element underground into an environment where it can be neither monitored nor redressed, allowing its inflammatory content to intensify and dangerously distort the perspective of those who, in private, continue to be convinced.

The combination of these arguments results for some in the conviction that the only way to protect the vital purposes underpinning freedom of expression is to make it a stringent guarantee. Excessive, even offensive, forms of expression must be endured, for to do otherwise would be to usurp the critical function of democratic community by prejudging and sanitising discourse. If legislation is to proclaim which kind of expression is deemed worthy, the cure for problems such as racial vilification may become worse than the disease.

In stark contrast, proponents of racial vilification legislation are prepared to compromise the principle of freedom of expression to serve another highly valued ideal, racial respect. The right to racial respect is derived from the established values of anti-discrimination and basic human rights principles of equality. It is "the right of each citizen to live without discrimination ... to make his or her life and to feel part of the community, without being hindered ... to grow up and live in a climate of understanding and mutual respect" (as expressed by British Columbian lawyer, John McAlpine).

Equality was thought to be achieved adequately by the removal of active discrimination, but there is increasing recognition that positive, interventionist steps must be taken to create true equality.

Just as positive discrimination is used to overcome the practical impediments to equality, racial vilification legislation is seen as a vital weapon to strike at the psychological barriers. Proponents of racial vilification legislation are convinced that this contribution to our society would outweigh the more abstract value of unrestricted expression.

Many disavow the conviction that freedom of expression, and the full and critical debate it allows, will enable people successfully to distinguish truth from prejudiced misapprehension and ultimately lead society to a genuine cohesiveness. The view is rejected as an unfounded confidence in perfect human rationality and an underestimation of the power of expression to enliven prejudice and confirm inflexible belief systems. Entrenched prejudices, such as racism, easily distort the rational reception of ideas and can deny equal access to the public forum, especially for those who are already marginalised. The notion of a 'level playing field' for all ideas to collide and compete to earn their legitimacy is criticised as a miscalculated theory.

Racially vilifying expression can inflict severe emotional distress and make minority members of a society more susceptible to overt acts of discrimination and hatred. It is argued in favour of a legislative response that the law has a responsibility actively to address such identifiable harms. Legislation is a symbolic gesture, creating an important educative community benchmark which can positively influence appropriate public behaviour, demonstrate public support for marginal groups and show perpetrators that it is the State, representing fellow citizens, which censures their behaviour.

While some are reluctant to give racist expression the public platform of prosecution, others claim that the formality and impartiality of the law can enable the intense feelings associated with racial conflict to be defused and its erroneous content exposed. Often racially vilifying expression arises from ignorance, insularity and thoughtlessness, rather than hatred. The educative support programs which any controversial new legislation makes imperative would combine well with the mainstream impact of the legislation in beginning to enlighten people's views.

It is possible to muster convincing arguments both for and against a legislative response to the problem of racial vilification. The decisive question will be whether racial vilification legislation, enacted in the confidence that the promotion of racial respect is a worthy legislative object, would stand up to a legal challenge. Such a challenge could not be made on abstract statements about the value of unfettered expression. Rather, it would have to be mounted on an assertion of fundamental incompatibility between the legislation and an implied legislative limit, drawing on the principle of freedom of expression, but only to the extent that it has been afforded concrete recognition in the law.

The High Court's 1992 ruling that the Constitution contains an implied guarantee of free political communication (in the cases Australian Capital Television Pry Ltd v. The Commonwealth (1992) 108 ALR 577 and Nationwide News Pty Ltd v. Wills (1992) 108 ALR 681) is a very significant development for this purpose.

Traditionally, Australian law has treated free expression as a residual liberty not a right: something almost unidentifiable after a wide range of incursions to protect particular interests have whittled it down. While the courts have claimed to interpret legislation to avoid undue restriction on expression, in practice even statutes which are highly constraining tend to be given their effect. The newly explicit constitutional guarantee of free political communication may give some legal basis for doing otherwise.

The High Court decisions are remarkable because they give an unprecedented degree of recognition to freedom of expression. The Court has been willing to grapple with this broad, indeterminate notion in order to frame a specific guarantee by which legislation may be struck down. It is this bold, implication-based interpretation which exposes racial vilification legislation, as an indisputable affront to freedom of expression, to potential challenge.

Before too much is said in this regard, it is important to emphasise that the guarantee identified by the Court has definite limits. When the decisions were handed down, included amongst the spirited public response were extravagant claims that the right to freedom of expression had now become legally entrenched. Closer examination of the individual judgments in the cases reveals a much more circumspect approach. Far from a wholesale endorsement of the paramountcy of freedom of expression, the guarantee crafted by the majority Justices is specific and carefully delimited.

The most important thing to note about the implied guarantee of free political communication is that it is to operate as a limit on legislative power, not as a positive right to individual free expression. The Court drew its implication from a finding that the principle of representative government was inherent in the Constitution. That free discussion of political issues is vital to the efficacy of representative government (electors must have the capacity to cast informed and therefore responsible votes and to criticise governmental institutions) was viewed as the logical next step which justified implication of the guarantee.

There would be a convincing case to argue that the use of the implied constitutional guarantee to challenge federal legislation could equally be applied to the various state examples of racial vilification legislation which are already in place.

The constitutional principle of democratic, representative government, enabled by the guarantee of free political communication, creates a broad framework for the whole society; if state legislation were able to constrain any part of the vital political discourse, the comprehensiveness of this protection would be impaired. If free political discourse is indispensable to the efficacy of the democratic, representative government for which the Constitution provides, the High Court must be able to use the implied constitutional guarantee to strike down any legislation which attempts to repress it.

The likelihood of a successful challenge to racial vilification legislation, whatever its source of legislative power, turns on two key considerations. The first is whether the implied constitutional guarantee of free political communication is sufficiently wide to include racially vilifying expression. Even if it is wide enough, the Court has indicated that the guarantee is not absolute, which gives rise to the second consideration. The question is whether racial vilification legislation could be declared valid, despite its infringement of the principle of free political communication, because of factors which outweigh the importance of this form of free expression and so over-ride the guarantee.

A careful examination of the judgments in the two High Court decisions makes tentative prediction of the likely answers to these questions possible. Inevitably the individual judges would diverge in the detail and nuances of their responses, but it seems reasonable to expect that certain forms of proscribed racially vilifying expression would be held to fall within the scope of the implied constitutional guarantee of free communication. To qualify, the expression would have to establish some linkage with the notion of representative government.

Using the various judgments in the cases as a guide, such a connection might be shown if the expression were a form of communication made for the purpose of election candidacy or at least within the election period. More broadly, the expression should fall within the guarantee if it were a critique of government, or most broadly of all, if it could be loosely characterised as expression 'of civic consequence'. Where racially vilifying expression comes out of the mouth of a candidate running on an overtly racist platform or arises in acrimonious public debates over immigration or funding for migrant support services, for example, it would not be difficult to make out the necessary connection with the processes of representative government which the guarantee of free political expression is implied to protect.

However, the inclusion of this kind of racially vilifying expression within the scope of the guarantee would not automatically render racial vilification legislation invalid. The guarantee does not carry the implication of an absolute or uncontrolled licence. The voice of the majority in the two High Court cases accepts (albeit with diverse rationales) that despite its infringement of the freedom of political communication, legislation may validly impose restrictions to serve an over-riding legitimate interest. It would no doubt be argued for the validity of the legislation that the legitimate interest it promotes - racial tolerance and harmony - actively serves the sense of equality which is central to the broader notion of democracy which must underpin the Constitution's more specific provision for representative government. The Court has shown some willingness to countenance such a claim.

If racial vilification legislation can be characterised as proportionate in what it proscribes to the fulfilment of a legitimate social purpose and is not judged as a substantial impediment to the informed political judgment of the Australian people, it is very likely that it would be upheld by the High Court. For racial vilification legislation to be struck down, the guarantee of freedom of expression would have to be stringent and uncompromising. The majority of the current High Court judges has not displayed a willingness to take this approach.

The Court's likely determination that racial vilification legislation is valid would reflect not only an appreciation of the gravity of racial intolerance as a mind-set, but would serve also as an example of the Court's willingness to assume the delicate task of confining freedom of expression where a greater need must be accommodated.

It seems unlikely, however, that the legislation would be unanimously upheld. Certain of the High Court judges have expressed a sound commitment to an expansive sense of freedom of expression. This confirms the friction inherent in the undertaking. Weighing opposing rights will always be contentious because the balance is so fine. But this is more fortifying than troublesome, for it allows the design of the rights equilibrium which is best suited to our society.

An appropriate solution to the problem of racial vilification cannot be determined without a determination of the kind of democracy we want our law to direct and support; the laissez-faire model in which incursions on our freedoms are minimal and the law does not dictate morality, or a democracy defined by the paramountcy of equality, in which individual and group dignity are actively protected by the law where necessary. In answering this, if is helpful to allow the individual experience of hurt and humiliation of victims of racial vilification to pierce what is sometimes rather distanced intellectualising.

The tolerance of vicious voices is not the vital element of our democratic freedom, but the degree to which we collectively nurture respect and acceptance for all members of society is certainly a fundamental part.

FREYA CARKEEK

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