Sorry George Brandis, but here's why we don't have a "right to be bigots".

George Brandis.

In the last few days, there has been lengthy debate in our national parliament about whether Australians have the right to be bigots. Isn’t it wonderful when our nation covers itself with glory?

In recent weeks, the Abbott government has signalled its intention to repeal section 18C of the Racial Discrimination Act 1995. In response to concerns from Senator Nova Peris that these plans might “facilitate [racial] vilification by bigots”, Attorney-General George Brandis said in the Senate this week, “People do have a right to be bigots, you know.”

Did you know? Did you want to know? Do you want to know more? Then by all means, read on for your five-minute guide to the repeal of section 18C. (MM, do I have a right to be a bigot?)

What’s this all about?

First, we should have a look at the legislation that is in question.

Section 18C of the Racial Discrimination Act 1995 makes it unlawful to “offend, insult, humiliate or intimidate” a person or group because of their “race, colour or national or ethnic origin”.

Section 18D effectively provides a defence to conduct committed in breach of 18C if the conduct was done reasonably and in good faith, and for a particular reason, which might include making fair comment on a matter of public interest or for an artistic purpose.

The two sections work together: section 18C provides freedom from racial prejudice, and section 18D provides a balance to protect freedom of speech on matters of public interest.

That seems reasonable. Why do people think s18C needs to be changed?

In 2009, Andrew Bolt wrote two blog posts. In those blog posts titled “It’s so hip to be black” and “White fellas in the black”, Bolt alleged that a number of fair-skinned Indigenous Australians (he named a number of them) were pretending to be Aboriginal for personal gain and in order to advance their careers.

Nine Aboriginal people sued Bolt (and his employer, The Herald and Weekly Times) in the Federal Court under section 18C.

In September 2011, Justice Bromberg found Bolt’s blogs were in breach of section 18C because a reasonable fair-skinned Aboriginal person would likely be offended by the comments.

Andrew Bolt has criticised the application of the Racial Discrimination Act, saying it is a danger to “free speech in this country.”

Importantly, the judge found Bolt had no defence under section 18D because the articles were not written in good faith and “contained errors of fact, distortions of truth and inflammatory and provocative language”.

On hearing the decision, Andrew Bolt immediately declared it “a terrible day for free speech in this country”. Bolt’s supporters tended to agree.

In August 2012, Tony Abbott made a pre-election address to the conservative think-tank, the Institute of Public Affairs, and committed to repealing the provisions of the Racial Discrimination Act that allowed Bolt to be sued.


Where are things at now?

After telling a Q&A audience this month that the Government would repeal the section in its current form, Attorney-General Senator George Brandis has now released a draft of new provisions for the act.

The provisions of 18C, which the AG has referred to as “hurt feelings” provisions (the requirements that the behaviour must not offend, insult or humiliate), will be replaced with a requirement that the conduct must not vilify or intimidate. “It is not, in the Government’s view, the role of the State to ban conduct merely because it might hurt the feelings of others,” the Attorney said.

The new provisions will also include a “community standards” test of what is reasonable behaviour, rather than a reasonable person test.

On their face, the effect of these changes will be to make it more difficult for people to be sued for offensive or humiliating conduct. That conduct will have to be proved to be racially vilifying or intimidating before it will be outlawed – which is clearly a lower level of protection for people who might be victims of racism.

Fans of free speech are calling it a win. “While a full repeal of 18C would have been preferable, the Government’s proposal goes 95 per cent of the way towards ensuring what happened to Andrew Bolt won’t happen again,” the IPA’s Simon Breheny has said.

So, tell me the truth, MM: do Australians have the right to be bigots?

No. While watching a lot of TV may make us think otherwise, we really don’t have a lot of rights, per se.

Senator Brandis making the comment on Monday.

Is it unlawful to be a racist big-mouth? Probably not (even less likely if these new provisions proposed by Senator Brandis are passed). But is it your right to be a bigot? No. Not in this country.

Obviously as Australians, we have many freedoms but we don’t have a Constitutional Bill of Rights like the US. We do have a narrowly defined right of political free speech that has been implied into the Constitution by the High Court (being a bigot is probably not political free speech for the purposes of that implied right), but that’s about it.

While it’s not strictly an actionable right in this country, freedom of speech and the capacity to criticise, protest and promote ideas is a vital part of our democracy.

The ultimate problem here is the fact that people take this freedom and use it to belittle, demean and persecute vulnerable groups. What we must decide as a country is whether an unfettered freedom of speech is more important than protecting vulnerable people.