The decision of the Australian government to abandon proposed changes to the Racial Discrimination Act to protect free speech is a poor decision in which political expediency won out over principle.
This was allowed to occur because the government totally mismanaged its case, allowing the issue to become mired in a narrow debate over race hate instead of freedom of speech.
As a result everyone is the poorer, from the individual who may want to express a view to the media companies that may publish or broadcast them. As many have been quick to point out, it also represents a breach of an election promise by Prime Minister Tony Abbott.
The problem with freedom of speech, as shown in the Andrew Bolt case in 2011, is that legislative limitations have restricted the implied right under the Australian Constitution to freedom of political communication.
Under Section 18C of the Racial Discrimination Act, exercising your implied right is unlawful if it causes offence to any group on the basis of race, colour or national or ethnic origin. The problem is offence can by caused when none is intended, and places unreasonable demands on individuals – through letters to the editor – or columnists to express a view. Offence is totally subjective; what offends one does not necessarily offend another, and should have no application in law. Vilification, of course, is a totally different matter.
It was this section that the government sought to change. The proposed amendment was simple. It was to remove the words “to offend” but retain the provisions making it illegal “to humiliate or intimate a person” on the basis of race.
This would not open the floodgates to cesspool of racial vindictive, as opponents of the amendment claim, but it would have allowed free discourse – within the constraints of the amended Act and defamation laws – on matters such as immigration, multiculturalism and indigenous matters.
The government case was doomed from the moment Attorney-General George Brandis declared during a debate on the changes that people “had to the right to be bigots”. While in a legal sense he was correct, politically it was a pompous and unnecessary overstep that allowed opponents to argue against the change on the basis it would condone racial hatred. And now they have won.
Because of strong opposition from the Muslim community – in addition to Jewish and indigenous bodies – the changes have become collateral damage to the need to minimise political opposition to Mr Abbott’s strengthened counter-terrorism laws, announced at the same press conference on Tuesday.
However if Mr Abbott and Mr Brandis retain the strength of their original convictions, they need to return to the proposed Racial Discrimination Act changes in a less volatile climate. Freedom of speech is too important to our democracy to allow it to be eroded by bad laws.
Ian Moore is a consultant to The Newspaper Works and News Corp Australia.