Context and the Limits of Legal Reasoning: The ‘Victim Focus’ of Section 18c in Comparative Perspective
| Author | Elizabeth Hicks |
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| DOI | 10.1177/0067205X1604400204 |
| Subject Matter | Article |
CONTEXT AND THE LIMITS OF LEGAL REASONING: THE
‘VICTIM FOCUS’ OF SECTION 18C IN COMPARATIVE
PERSPECTIVE
Elizabeth Hicks*
ABSTRACT
This paper considers the recent controversy surrounding section 18C of the Racial
Discrimination Act, and assesses the need for reform. I argue that the controversy
surrounding section 18C is traceable to two causes. Firstly, section 18C locates the harm
of hate speech within the experience of a victim, and secondly, describes this experience
in term s of ‘fee lings’ such as offence and insult. This ‘victim focus’ departs from the
traditional characterisation of vilification as speech that harms social cohesion — an
approach I refer to as the ‘incitement focus’. I defend section 18C’s ‘victim focus’ by
analysing the reas oning of the Human Rights Committee, the Committee on the
Elimination of Racial Discrimination and the German Constitutional Court where the
‘incitement focus’ is dominant. Through this comparison, I demonstrate that the
‘incitement focus’ is ill ada pted to deal with the harm of hate speech in societies with a
high degree of social cohesion. In these circumstances, the connection between speech
and incitement is less amenable to legal reasoning, although courts legitimately perceive
harm in the social and historical significance of hate speech. In contrast, Australia’s
‘victim focus’ is better adapted to an inquiry into the relationship between speech and
social and historical patterns of persecution. While I defend section 18C’s description of
this relationship in terms of ‘offence’ and ‘insult’, I recommend that the provision be
amended to require that ‘insult’ be considered within an historical and social context.
This may strengthen the public’s perception that section 18C is a legitimate restriction
on speech.
I INTRODUCTION
The hig h-profile decision of Eatock v Bolt
1
renewed political debate about freedom of
speech in Australia. Eatock concerned a number of articles written by Andrew Bolt in the
Herald Sun about fair- skinned Aboriginal people, whic h implied that such people were
not genuinely Aboriginal, and were instead choosing to falsely identify as Aboriginal so
that they could access benefits. Pat Eatock, an Aboriginal woman, made a complaint
* BA (Hon) LLB (Hon). I thank Prof. Greg Taylor for his encouragement, feedback and robust
debate while preparing this paper. All views expressed are my own. All translations are also
my own except where indicated.
1
(2011) 197 FCR 261 (‘Eatock’).
258 Federal Law Review Volume 44
_____________________________________________________________________________________
against Andrew Bolt under section 18C of the Racial Discrimination Act 1975 (‘RDA’).
2
Section 18C allows a complaint to be brought to the Australian Human Rights
Commission (‘AHRC’)
3
where an ‘act’ performed in public is ‘reasonably likely’ to
‘offend, insult, humiliate or intimidate a person or another group of people’.
4
Bromberg
J found in favour of the plaintiff and ordered that the Herald Sun publish a corrective
notice.
In March 2014, the Abbott gov ernment proposed the repeal of section 18C and the
insertion of a new provision that would confine the definition of vilification to the threat
of physical violence or the incitement of hatred against a target.
5
The rationale for this
reform was that section 18C protected trivial interests — a view expressed, for example,
by Attorney-General George Brandis:
Those three w ords — offend, insult and humiliate — describe what has sometimes been
called hurt feelings …. 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.
6
Although the Federal government abandoned its reform proposal later in 2014,
section 18C remains controversial. The ‘feelings’ of an audience are not generally
considered a legitimate reason to prohibit speech.
7
It was clear that the controversy
remained unsettled in the aftermath of the Charlie Hebdo attack in January 2015, which
prompted claims that the publication (whose cartoons caricatured and satirised
Muslims, among others) would have been proscribed by section 18C.
8
Public debate has
lacked a critical examination of the relationship between speech, insult and persecution;
the extent to which recognition of this relationship is lacking in existing legal paradigms;
and whether — a nd how — this relationship should be recognised in racial vilification
laws.
In this paper, I argue that section 18C should explicitly require the adjudicating body
— whether the AHRC or the Federal Court — to take into account the historical and
social context of speech, so that it can consider whether speech is a form of persecutio n.
Bodies that apply section 18C already appear to consider historical and social context
when interpr eting the provision. However, as section 18C does not explicitly require
these bodies to take contextual meaning into account, section 1 8C is liable to being
misunderstood as a protection of trivial ‘emotions’. While I defend the ‘victim focus’ of
section 18C, and argue that it should retain the words ‘offend’ a nd ‘insult’ in its
2
(Cth).
3
The Human Rights and Equal Opportunity Commission was renamed the Australian Human
Rights Commission in 2008. Accordingly, I refer to decisions made by the AHRC prior to
2008 as decisions made by the HREOC.
4
RDA s 18C(1).
5
Freedom of Speech (Repeal of S. 18C) Bill 2014 (Exposure Draft)
<http://www.ag.gov.au/Consultations/Documents/Attachment%20A.pdf>.
6
Quoted in Emma Griffiths, ‘Racial Discrimination Act Amendment: Federal Government
Leaves Open Possibility of Altering Proposed Changes’, ABC (online), 26 March 2014
<http://www.abc.net.au/news/2014-03-25/racial-discrimination-act-changes-george-
brandis/5343464>.
7
See, eg, Joel Feinberg, Offense to Others: The Moral Limits of the Criminal Law (Oxford University
Press, 1985).
8
Tim Wilson, ‘Charlie Hebdo v 18C: No Contest’, The Australian (online), 19 January 2015
<http://www.theaustralian.com.au/opinion/charlie-hebdo-v-18c-no-contest/news-
story/ccf2a26b84386ce41ce5c32706e2ab89>.
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