Arts Law’s Submission to the Inquiry into Freedom of speech in Australia
Due to the nature of our work and our field of expertise, we endorse a comprehensive and robust establishment of freedom of speech and expression in Australia. However, Arts Law acknowledges that the right to freedom of speech in Australia should not be absolute in all circumstances. We recognise that freedom of speech, although crucial in a free and open democratic society, is not paramount and must be balanced with other common law rights, freedoms and privileges or human rights set out in international covenants, declarations and conventions to which Australia is a party.
Arts Law supports the implementation of Australia's international obligations. Section 18C of the RD Act is consistent with Articles 19(3) of the International Covenant on Civil and Political Rights (ICCPR) which limits the right to free speech by noting that it "carries with it special duties and responsibilities" and accordingly be restricted to protect other rights, reputations, national security, public order, public health or morals. It is also consistent with section 20(2) of the ICCPR which provides that "racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law". In addition, section 18C implements Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (1969), which requires member states to condemn and to adopt measures to eradicate racial discrimination, racial vilification and the dissemination of ideas based on racial superiority.
We support the implementation of Australia's international obligations. We also feel that the current application of section 18C is appropriate and we do not advocate for any changes to it. Section 18C is also balanced by section 18D which contains broad 'free speech' exemptions. This provision protects any artistic, academic or scientific work or 'fair comment' made in the course of public debate, provided it is done reasonably and in good faith. Arts Law notes that this is one of the few provisions in Australian legislation which explicitly protects the interests of free speech. We consider that this section is a vital lynchpin of the regime, maintaining the vigorous and at times 'politically incorrect' nature of public discourse in Australia. It provides artists with confidence in any good faith artistic expressions which may explore sensitive racial themes.
Finally we discuss the importance of the Australian Human Rights Commission. We consider the existence of these laws and the Commission to play a pivotal and symbolic role in Australian society. A recent study by Gelber & McNamara found that the majority of people interviewed claimed that although they would never lodge a complaint under section 18C or pursue litigation, the Commission's existence nonetheless felt like a powerful symbol of protection in the community. Arts Law considers that the Commission plays a crucial role in giving individuals and communities a forum in which to challenge perceived racial vilification which can avoid court intervention. Arts Law cannot, at this stage, identify any practice by the Commission that should be prohibited or limited.
 Campbell v Kirstenfeldt  FMCA 1356. Examples taken from Katharine Gelber and Luke McNamara, 'Anti-vilification laws and public racism in Australia: mapping the gaps between the harms occasioned and the remedied provided' (2016) 39(2) UNSW Law Journal 488, 499.