Section 18C of the Racial Discrimination Act (Cth) is a perennial favourite topic for right wing politicians, and conservative pundit Andrew Bolt has never stopped moaning about it ever since he ended up on the wrong side of a Federal Court decision Eatock v Bolt in 2011.

But there is also some respectable legal opinion questioning the constitutionality of section 18C. The most recent is an article by barrister Louise Clegg in the Australian Financial Review a couple of days ago.  She fearlessly asserts that the High Court is likely to strike it down when or if a suitable case comes before it.  She claims that High Court Chief Justice Robert French gave a thinly veiled warning to that effect in a speech late last year.

I’m nowhere near that certain, but I certainly have some doubts about the constitutionality of section 18C. I mused about them in a long and rather rambling post about 5 years ago, shortly after the Eatock v Bolt decision.   The occasion was a speech given at CDU  by then Federal Court Chief Justice Patrick Keane, who like French CJ also expressed some careful concerns about proscribing political speech which was merely “offensive” or “insulting”. Keane too is now a Justice of the High Court. His speech was titled “Sticks and Stones May Break My Bones but Names Will Never Hurt Me”. Despite that title and his expressed concerns, Keane CJ (as he then was) suggested that perhaps prohibiting free speech which undermined “human dignity” might be democratically (and presumably constitutionally) acceptable. He drew inspiration from American jurisprudential scholar Jeremy Waldron, who advocates human dignity as a suitable constitutional touchstone for courts to employ in reconciling and prioritising competing rights.

The problem with the notion of “human dignity” and its infringement as a determinant of whether political speech can properly be prohibited in a democratic society where political communication is constitutionally protected (e.g. Australia and the US)  is that it is potentially just as indeterminate as section 18C in its current terms.  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”.

In any event, I thought it might be worth reproducing my musings about the constitutionality of section 18C over the fold:

Bolt deservedly lost [in Eatock v Bolt] 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.

PS Katy Barnett’s excellent and extensive analysis of broader issues surrounding Eatock v Bolt at Skepticlawyer also repays careful reading. Also see Russell Blackford’s excellent post.