The audience at last night’s Austin Asche Oration witnessed an address by Federal Court Chief Justice Pat Keane which some might label as courageous in a Sir Humphrey Appleby sense. Without ever mentioning Bromberg J’s recent decision in Eatock v Bolt, Keane CJ cut to the heart of the central issue of controversy in current public debate. That is, whether and how the law might appropriately balance the competing public interest imperatives involved in protecting freedom of political communication while simultaneously restraining socially destructive hate speech.
Eatock v Bolt involved a series of newspaper articles by Murdoch journalist Andrew Bolt which attacked nine prominent Aboriginal activists, effectively labelling them as “white Aborigines” who illegitimately capitalised on their Aboriginality to further personal ambitions and obtain career and other preferment. Bolt’s factual assertions were seriously erroneous in numerous respects, and his articles were quite viciously worded. The nine activists lodged complaints against Bolt and News Ltd under s 18C of the Racial Discrimination Act (Cth) and subsequently took enforcement action in the Federal Court. Because of the way the High Court conceptualises the constitutional requirement for separation of judicial from political power at federal level, only a Chapter III court can make binding and authoritative orders in such matters. The Australian Human Rights Commission cannot do so.
Three weeks ago in the Federal Court (of which Keane CJ is the principal judicial officer), Bromberg J handed down his decision, holding that Bolt and News Ltd had been guilty of offensive behaviour because of race, colour or national or ethnic origin within the meaning of s 18C of the RDA. On Wednesday Bromberg J made final orders awarding costs to the nine complainants, requiring News Ltd to publish prominent corrective notices, and restraining them from republishing the offending articles or any substantial parts thereof.
In the meantime Bromberg J’s decision has been the subject of vituperative and frequently ill-informed commentary both in the mainstream and alternative media. In those circumstances it is hardly surprising that Keane CJ took the opportunity of last night’s Oration to defend the integrity, independence and impartiality of his Court , a role that Chief Justices are increasingly forced to perform nowadays, given that Attorneys-General apparently no longer see it as their role to defend the courts from unfair and extreme criticism.
Common law or constitutional rights protection best?
His Honour began his Oration by citing with approval some remarks by the Honourable Austin Asche after whom the annual oration is named. Asche CJ (as he then was) had opined in 1989 that the common law and statute were more satisfactory and finer-grained ways of responding to and protecting claims for human rights than high-flown, abstract constitutionalised declarations. This is a familiar trope of opponents of constitutionalised charters of rights, extending back at least to A.V. Dicey who enshrined it in his seminal rule of law formulation:
[T]he rule of law and the rights it protects are the products of the traditions and customs of the ordinary law, not a written constitutional document. The English Constitution bears ‘the fruit of contests carried on in the courts on behalf of the rights of individuals’. The Constitution was ‘judge-grown’, in the rich soil of countless years of English common law, reflecting an English ‘legal spirit’.
Despite the long provenance of such sentiments, Australia is now the only western democracy which does not have some form of rights charter, constitutional or otherwise. Others have concluded not unreasonably that Dicey’s paean to the common law is radically incomplete, ignoring what JS Mill referred to as the “tyranny of the majority” and the inevitable associated tendency of politicians (and therefore judges who must interpret and apply statute law) to pander to the passions of that majority, however much minorities despised by the majority may be oppressed.
Too much free speech?
Nevertheless, and leaving aside those arguments, Keane CJ pointed to a number of US Supreme Court decisions which, he argued, evidenced an undesirable tendency in US jurisprudence for courts to give primacy to freedom of speech over equally important rights and values including privacy, reputation, basic civility and human dignity. Snyder v Phelps (March 2011) is an example:
The Supreme Court ruled … that members of a fundamentalist church have a free-speech right to hold anti-gay protests at military funerals to promote their view that God hates America for tolerating homosexuality.
In a case pitting free-speech versus privacy rights, the nation’s highest court held that the picketing at a private funeral and even hurtful protest messages were protected by the U.S. Constitution’s First Amendment.
The decision by an 8-1 vote was the latest in a long line of Supreme Court rulings that free-speech rights protected even outrageous or offensive conduct, including the burning of the American flag.
The ruling was a defeat for Albert Snyder, the father of a Marine killed in Iraq in 2006. He sued after the family’s funeral service at a Roman Catholic Church in Westminster, Maryland, drew unwanted protests by members of the Westboro Baptist Church in Topeka, Kansas.
The protesters carried signs that stated, “God Hates You,” “You Are Going To Hell,” and “Thank God for Dead Soldiers.”
Another was the 1989 Florida Star decision:
The Supreme Court … overturned a $100,000 damage award that a rape victim won against a small Florida newspaper that published her name in violation of a state law.
The 6-to-3 decision was based on the First Amendment’s guarantee of freedom of the press. But the decision, written by Justice Thurgood Marshall, was narrowly confined to the facts of the Florida case. It stopped short of deciding the broader constitutional question of whether a newspaper can ever be subjected to criminal or civil liability for publishing a report that, while accurate, invades someone’s privacy.
In overturning the damage award that the victim of the 1983 rape and robbery had won in her civil lawsuit against The Florida Star, a small Jacksonville weekly, the Court did not declare the state law unconstitutional. Florida, Georgia and South Carolina are the only states that have laws making it a crime to publish the name of a rape victim.
Rather, Justice Marshall said, the law was unconstitutionally applied in this case, in which the newspaper had lawfully obtained the victim’s name and details of the crime from publicly available police records.
Keane CJ contrasted these decisions with others in South Africa and some European nations, which have rights charters enshrining both free speech and other rights like privacy, reputation and personal dignity.
Jeremy Waldron and human dignity
Perhaps most interestingly, Keane CJ based his argument on the 2009 Oliver Wendell Holmes Lectures delivered by American jurisprudential scholar Jeremy Waldron. Waldron advocates human dignity as a suitable constitutional touchstone for courts to employ in reconciling and prioritising competing rights.
Ronald Dworkin also deployed this essentially Kantian concept of human dignity (and equality) in deriving “universal” human rights in his seminal work Taking Rights Seriously. However, and somewhat unconvincingly you may think, Dworkin argued that human dignity and equality could only ever be justifications for free speech not for the primacy of other rights and values at least in some circumstances (article by Guy Carmi not available free online):
Dworkin, for example, argues that restricting people’s speech, or limiting people’s access to others’ speech, out of contempt for their way of life or their view of good violates their right to autonomy or “moral independence. Such restrictions unacceptably fail to treat these people with equal respect and concern.
Waldron employs the notion of human dignity as an underlying value in a much more “European” way than Dworkin, as this extensive extract demonstrates:
[G]roup defamation laws do not concern themselves with particularized individual reputation. They look instead to the basics of social standing and to the association that is made — in the hate speech, in the libel, in the defamatory pamphlet or poster — between the denigration of that basic standing and some characteristic associated more or less ascriptively with the group or class. I do not mean that group membership is in and of itself a liability. But group defamation sets out to make it a liability by denigrating group-defining characteristics or associating them with bigoted factual claims that are fundamentally defamatory. A prohibition on group defamation, then, is a way of blocking that enterprise. …
[T]hese reputational attacks amount to assaults upon the dignity of the persons affected — dignity, in the sense of these persons’ basic social standing, of the basis of their recognition as social equals, and of their status as bearers of human rights and constitutional entitlements. The moral imperative of respect for human dignity is increasingly understood as a crucial foundation of basic rights and equality. The Universal Declaration of Human Rights begins its preamble with the strong assertion that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” and the International Covenant on Civil and Political Rights follows up on that by stating that the rights it protects “derive from the inherent dignity of the human person.” Legal and political theorists are finding that dignity provides a useful and compelling perspective on the foundations of constitutional rights, and also on the foundations of ideals such as democracy and the rule of law. As well as these broad ideals, dignity is also increasingly appealed to on particular issues in legal controversy — on the death penalty (where its use is well known), on antidiscrimination law, on issues relating to abortion, and — as we shall see — in scholarly controversies on this matter of hate speech.
Dignity is a complex idea, with philosophical as well as political and legal resonances. In the sense I am using the term, dignity is not just a Kantian philosophical conception of the immeasurable worth of humans considered as moral agents. It is a matter of status — one’s status as a member of society in good standing. It validates the legal position of the ordinary individual both as an equal and (paradoxically) as the possessor of a very high-ranking status. And it generates demands for recognition and treatment that accord with that status. Philosophically we may say that dignity is inherent in the human person — and so it is. No law or social practice can take it away. But as a social and legal status, dignity has to be nourished and maintained by society and the law, and this … is a costly and difficult business and something in which we are all required to play a part. At the very least, we are required in our public dealings not to act in a way that undermines one another’s dignity in this sociolegal sense — and that is the obligation that is being enforced when we enact and administer laws against group libel.
“Offence” and loss of human dignity are different
Keane CJ based his argument, in favour of of a Diceyan/legislative and case law-based approach to rights, squarely on Waldron’s arguments. However, His Honour failed to mention that Waldron expresses significant reservations about a “taking offence” basis for mediating competing claims to to free speech and hate speech. However, “offence” rather than undermining human dignity, is precisely the basis for s 18C of the RDA and its State-based equivalents. As Waldron argues:
This brings me to an important distinction. There is a big difference between protecting individual dignity from defamation (based on some denigration of group characteristics) and protecting people from offense, even when the offense goes to the heart of what they regard as the identity of their group. The argument I want to make is not concerned with offense. It is concerned with what happens to the standing of persons and groups in society, not with any element of their distress unconnected with that.
This distinction is particularly important for understanding laws prohibiting hate speech against religious minorities. Consider, for example, worries about expressions of Islamophobia. The group of all Muslims in society, the group of all followers of Islam, is a group of people committed to the one God, to his Prophet, Mohammed, and to the holy writings of the Koran. On the account that I am developing, individual Muslims are entitled to protection against defamation, including group defamation as Muslims. A published allegation, for example, that all Muslims are terrorists or are properly suspected of involvement with terrorism would rightly fall foul of well-drafted hate speech legislation. But that does not mean that the law should aim to protect the founders of the religion, or the reputation of God as Muslims understand Him, or the creedal beliefs of the group. … The civic dignity of the members of a group stands separately from the status of their beliefs, however offensive an attack upon the Prophe or even upon the Koran may seem. The specific concern about group libel does not encompass these things.
In general, a dignitarian rationale for laws against group defamation differs from an approach based on the offense that may be taken by the members of a group against some criticism or attack. I do not deny that the distinction is a delicate one. …
And I do not mean to convey indifference to the subjective or felt aspect of assaults on dignity. Civic dignity is not just decoration; it is sustained and upheld for a purpose. It is an important part of my argument … that the social upholding of individual dignity furnishes the basis of a general assurance of decent treatment and respect as people live their lives and go about their business in public. And an assault on individual dignity is bound to be experienced as wounding and distressing; unless we understand that distress we do not understand what is wrong with group defamation and why it is appropriate to prohibit it by law.
Not only that, but in anyone’s reaction to any particular incident of hate speech, there are going to be a whole lot of factors all mixed up. The phenomenology of this sort of assault is complex and tangled. It is not easy to differentiate the offense from the insult, or the immediate wounding of an epithet from the perception of a threat, or the outrage from the humiliation, or the anger from the shame of having to explain to one’s children what is going on. The reactions are all mixed up, and it will often seem that the law, in responding to one set of phenomena, is also responding to others. I think this is likely to be true of hate speech also. When a racial group is hatefully denigrated, there will be fear, hurt, vehement disapproval to the point of outrage, humiliation, shame, anger, offense, and so on. And it will be hard to disentangle; often there will be no point in doing so. But it is important in this context to try. …
So what about group defamation? Prosecutions for seditious libel began to seem inappropriate when we realized that the government had become so powerful that it did not need the support of the law against the puny denunciations of the citizenry. Does that apply to vulnerable minorities? Is their status as equal citizens in the society now so well assured that they have no need of the law’s protection against the vicious slurs of racist denunciation? Prosecutions for blasphemous libel began to seem inappropriate when religion came to be regarded as a private matter. Is that true of the status of embattled minorities? Is their position in society — the respect they receive from fellow citizens — a matter of purely private belief, with which the law should have no concern? The state and its officials may be strong enough, thick-skinned enough, well enough armed, or sufficiently insinuated already into every aspect of public life to be able to shrug off public denunciations. But the position of minority groups as equal members of a multiracial, multiethnic, or religiously pluralistic society is not something that anyone can take for granted. It is a recent and fragile achievement in the United States and the idea that law can be indifferent to published assaults upon this principle seems to me a quite unwarranted extrapolation from what we have found ourselves able to tolerate in the way of political and religious dissent.
Reconciling the RDA and Waldron’s human dignity approach
Nevertheless, this apparent discrepancy between Keane CJ’s argument and Waldron’s hypothesis may not be as fundamental as it first appears. S 18C relevantly reads:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Case law on s 18C has held that it is only infringed if the act is reasonably likely to “offend” etc. a reasonable member of the vilified minority rather than one who is thin-skinned and easily offended. It is in essence an “oppressed minority member on the Clapham omnibus” test. In itself that does not bring us to Waldron’s position. However, if Australian courts adopt (as I would argue they should) a test whereby an act should not be held to breach s 18C unless on the facts a reasonable person would regard it as undermining the human dignity of the oppressed group (whether that group is founded on racial, religious or gender identity), then I think we are approaching an intellectually and legally sustainable distinction which preserves both values of democratic free speech and civil society.
The problem with the notion of “human dignity” and its infringement is that it is potentially just as indeterminate as other available concepts. In one sense it is a classic example of what Julius Stone called a “category of illusory reference”. A judge who disagrees subjectively with a particular exercise of free speech rights may have no more difficulty in labelling it a breach of “human dignity” than labelling it an act which “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”. However, as Gummow and Crennan JJ argued in Thomas v Mowbray (in the context of anti-terrorism control orders):
From consideration of the legislation on a case by case basis it may be expected that guiding principles will emerge, a commonly encountered phenomenon in judicial decision-making.
If we examine the fairly scant jurisprudence on s 18C, we find that it is already consistent with an approach based on significant infringement of human dignity as the requisite test:
Hagan v Trustees of the Toowoomba Sports Ground Trust  FCA 1615 (10 November 2000) involved a claim that the naming of a rural Queensland sports grandstand as the “Nigger Brown Stand” breached s 18C. It was named after a local identity whose nickname this was. One might reasonably regard the claim as somewhat frivolous and politically correct, and indeed local Indigenous people gave evidence that they were not offended. However, and leaving aside “offence” (whether subjectively or objectively determined) , one might persuasively argue that this is a situation which is unlikely to result in substantive undermining of human dignity, unless evidence establishes a pattern of racially-based denigration (which may well be the case but needs to be established on the evidence).
Toben v Jones  FCAFC 137 (27 June 2003), Jones v Scully  FCA 1080 (2 September 2002) and Jeremy Jones, and on behalf of the Executive Council of Australian Jewry v The Bible Believers Church  FCA 55 (2 February 2007) are all cases where virulent anti-Semitic abuse would clearly breach just about any test for breach of s 18C.
Eatock v Bolt is a more difficult and equivocal case. Bolt’s claims were seriously factually inaccurate and worded in a manner that many would find extreme, hurtful and unacceptable. However, as Dworkin argues:
Dworkin believes that the government cannot discriminate among citizens by permitting some views and denying other views. Such conduct is discriminatory not only to the speaker but also to the society as a whole (or potential individual listeners).’ The paternalism applied by government when censoring certain opinions prevents the citizenry from exercising autonomy and choosing from all available views, including those that the government dislikes or finds distasteful or dangerous. As Dworkin puts it, ” [w]e retain our dignity, as individuals, only by insisting that no one-no official and no majority has the right to withhold opinion from us on the ground that we are not fit to hear and consider it.”
Whether you personally disagree or not, Bolt’s articles raise cogent political issues about the legitimate bases for government-sponsored affirmative action initiatives to redress past discrimination, the extent to which “race” is a genetic or social construct, and whether and to what extent “multi-culturalism” is a viable concept and how the law should deal with it. Almost any version of constitutionally-protected free political communication would regard such topics as inherently legitimate subjects of public discussion. However, when does the tone or content of such speech put it beyond the legal pale? I would argue that there is no self-evidently correct answer, and that we should mostly err on the side of permitting obnoxious examples of free speech on such topics, for exactly the reason enunciated in the title to Keane CJ’s address: “Sticks and Stones May Break My Bones but Names Will Never Hurt Me”.
One might observe that this is a convenient rationalisation for articulate bullies confident they can goad their intellectual inferiors into physical retaliation. Nevertheless, maintenance of free speech in a democratic polity may well militate in favour of privileging even hurtful “smart-arse” speech over an excessive readiness to accept the probability of physical violence as a rational response. Coleman v Power is an example of a decision where at least three Justices accepted the probability of a violent response as a constitutionally acceptable reason for restricting free speech on political questions. However, just because politically active Indigenous academics, like well trained police officers, may reasonably be regarded as unlikely to respond violently to the written provocations of an intellectual thug like Andrew Bolt, might not in itself be seen as a sufficient legal reason for eschewing statutory restrictions of such speech in the public interest. Arguably the tendency of the speech in question to undermine human dignity would provide a more durable and intellectually sustainable test.
Did Bolt undermine human dignity in Waldron’s sense?
Finally, do Bolt’s words reasonably raise the question of undermining the “human dignity” of the nine complainants on the bases Waldron argues? I suggest not. These are not words which attack the “equal members[hip] of a multiracial, multiethnic, or religiously pluralistic society”, as Waldron puts it. Instead, at least arguably, they are words which single out the complainants as individuals. Bolt argues that they are individuals who have unfairly parlayed their racial credentials for personal advantage. His words do not reflect adversely on Aboriginal people generally or on any generally-described subset thereof. They defame/offend only the named individuals. They should have sued in defamation, and should not be permitted to utilise the (non-criminal) “criminal defamation” provisions of the RDA to hold an obnoxious opponent in terrorem.
Mark Bahnsich makes a contrary argument:
Marcia Langton, in a piece that repays reading, rightly assimilates Bolt’s views to a discourse which has long had its vile grip on Australian culture. The implicit demand in this discourse – that Indigenous people should pass as white – is all of a piece with a desire that Indigenous culture disappear. It’s surely no coincidence that it’s articulated just at a time when that desire is more prominent than for many years. Consider, for instance, the push against the use of Indigenous languages in schools, purportedly for reasons of facilitating economic opportunity, when actually all the evidence shows that such an approach is actually intrinsic to learning outcomes.
Andrew Bolt’s claim that his ambition is for a united society is in my view a pure expression of a monocultural wish, and that needs to be understood as fact.
Bahnisch makes a cogent point, but in my view it should not be regarded as trumping the more general proposition that the issues Bolt (at least ostensibly) addresses are legitimate ones which should not be suppressed in any democratic society. We should err on the side of permitting their public expression unless there is an at least equally powerful democratic reason to the contrary. I would argue that this is not the case where other legal remedies (in this case defamation where actual provable damage to reputation is a requirement) are readily available.
Would the High Court uphold sections 18C and 18D on constitutional grounds?
Bolt deservedly lost as a result of his reckless disregard for factual accuracy. He would probably have lost in defamation proceedings as well, and for similar reasons. However, had he got his facts closer to correct, engaged in some rudimentary fact-checking beyond a quick Google search, and given his targets an opportunity to respond before publication, he would have had a good defence to defamation proceedings on the so-called Lange extended defence of qualified privilege. And yet, at least on Bromberg J’s reasoning, which held that Bolt’s nasty and aggressive tone was also an element in denying his words exemption under s 18D, Bolt may well still have been held in breach of s 18C in those circumstances. That strikes me as both constitutionally and democratically problematic. As the High Court’s unanimous judgment in Lange v ABC explained:
In Theophanous, the Court held that, once the publisher proved it was unaware of the falsity of the material, had not acted recklessly, and had acted reasonably, malice could not defeat the constitutional defence. But once the concept of actuating malice is understood in its application to government and political communications, in the sense indicated, we see no reason why a publisher who has used the occasion to give vent to its ill will or other improper motive should escape liability for the publication of false and defamatory statements. As we have explained, the existence of ill will or other improper motive will not itself defeat the privilege. The plaintiff must prove that the publication of the defamatory matter was actuated by that ill will or other improper motive. Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff’s onus of proof of this issue.
The constitutionality of sections 18C and 18D have only been considered in a couple of decisions, namely Jones v Scully and Toben v Jones. Neither decision contains any real analysis of the question. The High Court has not ruled on it.
Bromberg J appears to have set a higher bar for a defendant in RDA proceedings than that which the High Court regarded as constitutionally appropriate for defamation proceedings in Lange. Given that both are civil causes of action and both constrain political communication, this seems a somewhat peculiar result In that sense at least it’s a pity that News Ltd has decided not to appeal in Eatock v Bolt. Would the High Court regard ss 18C and 18D as reasonably “appropriate and adapted” to a purpose within Commonwealth power (the validity test the Court sets for laws which incidentally burden constitutionally-protected speech)? On the one hand the provisions render a successful defence more difficult than in defamation, at least when the communication is not for a “genuine academic, artistic or scientific purpose”. On the other hand the available remedies (retraction or apology, injunction etc) are more restrained and restorative in nature than the punitive damages-based approach of the common law. Certainly Waldron regards Australia’s regime as appropriate and adapted:
The most generous such provision I have seen is in the Australian Racial Discrimination Act, which says that its basic ban on actions that insult, humiliate, or intimidate a group of people done because of their race, color, or national or ethnic origin “does not render unlawful anything said or done reasonably and in good faith: . . . in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest.” The purpose of these qualifications is precisely to limit the application of the restriction to the bottom end [of the spectrum of hate speech].
I’m not at all sure that can still be said in light of Bromberg J’s reasoning. Despite the High Court’s warning in Lange that “the vigour of an attack or the pungency of a defamatory statement, without more” is not enough for a plaintiff to succeed, Bromberg J appears to have take just such an approach in finding a breach of the RDA:
The tone and gratuitous nature of both the specific and general comments made contributed to the disrespectful manner in which the people in the ‘trend’ were dealt with and contributed to the intimidatory effect of the articles.
The extent of mockery and inflammatory language utilised by Mr Bolt to disparage many of the individuals which the Newspaper Articles deal with, far exceeded that which was necessary to make Mr Bolt’s point.