Free Speech Versus Hate Speech: Racial Discrimination Act


The freedom to express our thoughts and opinions is something that we all take advantage of. Individuals post their thoughts and opinions on Twitter, Facebook, Instagram and personal blogs for anyone to view. For some Australians, such as journalists, the fine line between free speech and hate speech is a reoccurring issue. Freedom of speech laws paired with anti-discrimination laws make for a lot of confusion. But this sensitivity to the freedom of speech laws doesn’t just relate to journalists, its applicable to everyone from regular tweeters to the most famous celebrities.

Freedom of speech

There is much debate found in the media concerning the freedom of speech expression in Australia. On December the 16th 1966 the UN General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR).

Article 19 of the ICCPR states:

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

( a ) For respect of the rights or reputations of others;

( b ) For the protection of national security or of public order, or of public health or morals.

History of Free Speech
Andrew Bolt case

This debate surrounding freedom of speech verses hate speech was sparked in 2009, by three articles posted in The Herald Sun. Journalist, Andrew Bolt, was accused of hate speech when he published these articles, implying that light-skinned people that identified as Aboriginal did so only for personal gain. Bolt published,

“this self-identification as Aboriginal strikes me as self-obsessed, and driven more by politics than by any racial reality”.

Pat Eatock, a woman of Aboriginal decent was the first to accuse Bolt of producing offensive messages. She took the matter to the Federal court and proceeded to sue on her own behalf and the behalf of others with lighter skin that were recognised as Aboriginal people.

Racial Discrimination Act

Although this topic falls under the umbrella of freedom of speech, Eatock, along with eight others who joined her, sued under the provisions of the federal Racial Discrimination Act. In clause 18c of the Act it states:

(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.

According to this, Australians have the right to speak freely but only if it doesn’t offend people. In a world full of diverse individuals, this causes a problem. It can be a matter of emotion which creates the ability for anyone to take someone to court for discrimination. One cannot voice an opinion about fellow persons if they are not able to speak openly about them. This Act appears to somewhat flow against the river that is the freedom of speech.

There is no alternative to free speech
State/Territory Laws

To further complicate things, in addition to this federal law, each state and territory in Australia has its own anti-discrimination laws. These laws between the states usually overlap, however, they all have varying levels of the suppression of freedom of speech. This means that Journalists, among others, must also be aware of the anti-discrimination laws of the particularly the state they are in.

Flaw in freedom of speech/suing rights

This conflict of rights also uncovers flaws within the way freedom of speech is enforced in Australia. Everyday members of the nation’s population express their harsh, discriminative and racist opinions online. Jack Latimore says,

“There’s no question that Australia is a far more racist country than its political class like to admit”.

Those that lay in the spotlight, such as Bolt are being sued without a second thought, whilst small, unrecognised citizens that continuously discriminate against people online are overlooked. For unknown reason a stigma that words have more weight when published by well-known people and organisations rather than personal blogs seems to have latched itself onto the mind of Australian citizens. The Bolt case shows us how easily one person can be sued for discrimination over others, just because they are in the spotlight.

Cyber Discrimnation

Along with this, journalists such as Bolt, must follow the Australian Journalists’ Association Code of Ethics 1194. A section of this code states that “each member of the Australian Journalists’ Association is bound by its rules to observe this Code of Ethics in his employment:  To report and interpret news with a scrupulous honesty”. This states that journalists must report honestly. This is just another example of a code that clashes with the Racial Discrimination Act.

Outcome of Bolt case

After analysing the articles Justice Bromberg concluded that Eaton’s claim was fair by stating

“It was reasonably likely that fair-skinned Aboriginal people were offended, insulted, humiliated or intimidated by the conduct”.

This case is a clear example of the awkward balance between freedom of speech and racial discrimination. It really comes down to the discretion of the judge, and in this case Bromberg. One of the nine to sue Bolt, Anita Heiss said

“I believe the result means that Australia will have a higher quality and more responsible media, and that to some degree the persecution of Aboriginal people in the press will be lessened”.

Although this was her hope, with the ICPPR in place this is near impossible. In turn, this case only made many free speech activists aggravated.

Bolt himself views the day as “a terrible day for free speech” and said, “It is particularly a restriction on the freedom of all Australians to discuss multiculturalism and how people identify themselves.” Tony Abbott also commented on the importance of free speech in Australia by saying,

“Free speech means the right to say what you don’t like, not just the right of people to say what you do like”.

Free speech does not equal comfortable speech

Bolt himself never apologised, and still stands as a strong advocate for freedom of speech. Ms Eatock said “I will never get an apology from Mr Bolt. He made that clear giving his evidence earlier in the year”. Even though the group won the case, they didn’t win much cultural respect from the media.

Practical applications

Publishing content Australia with the current rules surrounding speech can be difficult. One practical way to try to avoid breaching the discrimination act is to include references in your work to back you up. This can shift the blame somewhat and paint the picture that this is common opinion. Another application would be to ensure you do not make any claims unless there is factual evidence to support what you are stating. These applications can help form a certain barrier between you and the likelihood that you could be accused of producing discriminatory content.


The way Freedom of speech is approached in Australia is not true to its name. Although the ICCPR states that Australians are granted freedom of opinion and expression, some are still sued for expressing their opinions online and in articles. The Racial Discrimination Act although highly esteemed, constricts the ability to express opinion in Australia as the risk of offending someone is too high. It’s not fair to go as far as saying that the Racial Discrimination Act completely eliminates the freedom of expression in Australia, however, it does affect a large portion of freedom. It allows basically anyone to sue on the basis that they are offended. This can be extremely unfair as some could use this to their advantage and fake offence in order to target an individual. The claim made under the Racial Discrimination Act can only be decided by a judge which causes it to be more of a case of factual opinion rather than hard facts. The Racial Discrimination Act is a roadblock in all Australian citizens ability to produce sound opinion pieces. From an alternate perspective, the ICCPR and the Australian Journalists’ Association Code of Ethics 1194 somewhat stand in the way of those that hold strong significance the Racial Discrimination Act. Neither can exist at the same time and work harmoniously in Australia.


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