Australians may soon have carte blanche to offend, humiliate and insult whoever they please, as long as they are participating in a socially-relevant discussion.
Prime Minister Tony Abbott used an analogy involving traffic lights to explain the proposed changes to racial discrimination laws, saying his government wanted to remove the “amber” light on free speech, yet keep the “red light” on for bigotry.
The amendments, outlined by the Attorney-General George Brandis this morning, include a very broad clause (section four) which is certainly far more liberal in the allowances it makes for public discourse in Australia.
It would be illegal to vilify or intimidate on the grounds of race, colour, nationality or ethnic origin. However, the section does not apply to statements “published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic, or scientific matter”.
“It’s clearly intended to be broad,” says Ashurst partner Robert Todd, one of Australia’s most highly-regarded media lawyers. “The government intends to enable greater free speech by making it broad.”
Breadth can lead to confusion though, especially when options for communicating in Australia span the gamut from shouting at a street protest, to venting on social media. So we’ve asked Todd to explain a few aspects of the potential changes which could cause some confusion.
“Yes, it would apply to social media,” Todd says. While this means users would be given greater leave to express their opinions on racial minorities, they would need to be canvassing or contributing to a relevant, public discussion for the clause to apply.
“A public discussion is not limited. It would be any discussion of a public nature, of any format. But it would still have to be a public discussion.”
This means someone making offensive, bigoted statements in public using a social media channel could still face prosecution if their opinions are clearly unrelated to a current debate.
“If someone just chipped in with an unrelated statement they could still be caught … Someone metaphorically leaning over the fence and shouting something that was intended or reasonably likely to vilify and intimidate would still be caught,” Todd explains.
“But if there has been some debate or discussion on a social media site on a particular topic, then the exemption would apply.”
Protesters could also be covered by section four of the draft changes, Todd says, but again it would need to be related to a topic the general public considered relevant.
“If you are doing something as part of a public discussion, and that is part of a protest then yes, the exemption might apply,” he says.
“But if someone makes a statement that is not related, then it might not.
“A protest is usually about something that is a matter of political of social interest. It’s a political discussion.”
Reasonable Community Expectations
Whether an act vilifies of intimidates would be decided by the standards of an “ordinary reasonable member of the Australian community”, rather than the standards of any particular group.
This would mean people belonging to a racial minority living in Australia would not be able to claim they had been vilified or intimidated by any act that a reasonable person didn’t find offensive, or wrong.
“It adopts the language used in defamation matters, which is just a legal construct,” Todd says.
“That is intended to mean you don’t judge it by whether or not a particular person, or a particular group thinks it is likely to have that affect.
“That standard will change from time to time. Ordinarily, reasonable community standards do change. It’s always going to be difficult to interpret, and it will be interesting to see how judges interpret it.”