Left speechless by discrimination law inconsistency
Dutch far-right politician and the founder and leader of the Party for Freedom Geert Wilders in Melbourne on February 19, 2013. Photo: Scott Barbour
Dutch politician Geert Wilders has certainly offended and insulted a few people this week on his short visit to Australia. And in doing so has unwittingly done us all a favour.
Wilders' obviously offensive and insulting comments are not unlawful because they were made about a religious group (Islam), not a racial one. Outspoken columnist Andrew Bolt, on the other hand, made his insulting and offensive comments about indigenous people and they were held by the Federal Court in 2011 to be unlawful.
The court ordered that the remarks be expunged from the web archives of his blog and the website of the Herald Sun - in a similar way in which photos were airbrushed and text excised in new editions of the Great Soviet Encyclopaedia to remove reference to any official who had been purged since the publication of the previous edition. Fairly futile.
The different treatment of the two offensive speakers shows a remarkable inconsistency in Australian discrimination law. Wilders said of Islam, ''It's not a religion; it's a dangerous and totalitarian ideology.'' Bolt's articles suggested that a dozen named Aborigines with fairly pale skin were abusing their identification as Aborigines to scoop up various prizes, government subsidies and the like which should have been reserved for "genuine" (very black) Aborigines.
The former is lawful; the latter is not.
The Commonwealth Racial Discrimination Act provides: ''It is unlawful for a person to do an act [which includes speaking and publishing], 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 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.''
So no offending or insulting on the basis of race, but it is OK to offend or insult on grounds of religion.
Earlier this year, Attorney-General Nicola Roxon issued an exposure draft of an act to bring under one act all four pieces of federal discrimination legislation. The four acts deal with discrimination according to sex, sexual orientation, disability, religion, age, medical history and nationality.
The reason the various attributes were dealt with in separate acts is historical. The Commonwealth does not have direct power over discrimination. For a large part it relies on its external-affairs power. It can only legislate after there has been an international treaty in the area and the Commonwealth has ratified it.
As more treaties dealt with more areas, the Commonwealth legislated accordingly.
The original Roxon draft applied the very low test of unlawfulness with respect to racial slurs to all the other areas. Under such a draft, Wilders would be gone.
So, too, perhaps would Bob Hawke for his 1989 comment in Whyalla to Bob Bell who said Hawke earned more in a week than he did in a year. Hawke referred to him as ''a silly old bugger''.
Was Bell reasonably offended, insulted or humiliated?
Mercifully, Roxon took the draft back to the drawing board - as you do with bad drafts - after an onslaught from left, right and centre. But the low test for race remains. Are racial slurs different from other sorts? Also, the government has not totally walked away from making unlawful speech relating to religion, age, sexual orientation and so on. It has not worked out what the test will be.
Looking back, it seems that the legislature got into strife from the moment it failed to exclude speech and publication when it was defining discriminatory acts.
The law should not be about making people feel good about themselves or to protect them from offence or insult or from feeling intimidated or humiliated. Discrimination law should prevent people from being denied access to services on the basis of race, age, religion and so on.
There is a good argument for taking speech out of discrimination law altogether. Freedom of speech has been so important in society to ensure the best ideas and truth can survive and thrive and the worst ideas and falsity can be exposed and expunged. The worst ideas can be exposed and expunged only if they are permitted in the first place.
That being the case, there should be a strong onus on those who want to restrict free speech. They have to show a really good cause. Inciting people to violence is a good reason as is public safety (shouting ''fire'' in a cinema). These are provided for in the criminal law.
Unjustifiably injuring reputation can be a good reason to restrict speech or at least order compensation. Though, here again, some of that compensation is a bit flimsy and not justified in the face of the importance of freedom of speech, such as compensation for injured feelings.
Incidentally, in 1999 Tony Abbott picked up $15,000 for injured feelings (among other damages) in his defamation action against Bob Ellis. That head of damages is too similar to the offence and insult tests in the Racial Discrimination Act for comfort. It should be expunged.
Anyway, in this vexed area of freedom of speech, Geert Wilders is teaching us that we have to tolerate intolerance. Silencing it by force of law only makes people martyrs and draws much more attention to the rubbish they spout than they would otherwise get.
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How can a pharmaceutical company get a patent over a human gene, for pity's sake? Is everything for sale? Don't we have control over our own bodies? These were the questions asked after the Federal Court ruled in Cancer Voices of Australia v Myriad Genetics last week that Myriad Genetics' claim for a patent over a human gene was valid. The important point was the claim was for the isolated gene. The gene had been extracted and isolated so that it satisfied the critical requirement of patent law which goes back to the Monopolies Act of the 17th century - a new method of manufacture, an invention.
The attack on the patent asserted that this was a naturally occurring chemical so its isolation could not be an invention. If you want to read an acidly clear exposition on the way DNA works in the body I commend Justice John Nicholas' reasoning as to why a company should get a patent and a 20-year monopoly on the use of the extracted DNA, even if it means cancer patients and their health funds will have to pay more for access to it. Click here.