The law in Australia has never provided a perfect protection against racism.
For a long time, the law was in fact silent about racism. Prior to the enactment of anti-discrimination laws, there was little that those on the receiving end of racial discrimination and hatred could do about their mistreatment.
It is true that a citizen subjected to racial discrimination or harassment could have turned to the criminal code or to civil actions. Yet in reality this was cold comfort. In the absence of an actual physical assault or immediate specific threat, racial hatred was typically beyond the reach of the criminal law. As for the common law, the targets of racism had very few legal remedies available for interference with the person, reputation and property.
To uphold human dignity is to believe that all human beings have an intrinsic value -- that every person, regardless of social rank or importance, is entitled to consideration.
Put another way, the law in Australia hasn't always dealt with the human costs of racism. For a long time, Australian society was very explicitly structured on notions of race. Colonial governments openly sanctioned discrimination on racial lines. Racial integrity was a defining aspiration of Australian nationhood -- enshrined in legislation such as the Immigration Restriction Act and in practices of assimilation applied to Indigenous peoples.
It wasn't until 1975 that the Commonwealth parliament legislated to establish a protection against racial discrimination, in the form of the RDA. The RDA introduced a new and humane quality to Australian law and society: it was an attempt to legislate for human dignity.
To uphold human dignity is to believe that all human beings have an intrinsic value -- that every person, regardless of social rank or importance, is entitled to consideration. It is to accept that every human being should command respect because we have a status as rational agents, possessing the freedom to choose. There is, in this sense, an imperative to treat someone with dignity: to treat them with a certain respect as a person.
Racial prejudice and discrimination can have profound effects on a person (as with any prejudicial or discriminatory conduct based on attributes such as sex, disability or sexual orientation). It may involve not just a lack of due respect; it may inflict more grievous wounds.
There has been extensive debate about section 18C of the Racial Discrimination Act, which makes it unlawful to do an act that offends, insults, humiliates or intimidates someone because of their race. Since the Federal Court's judgment in the Eatock v Bolt case (2011), which found newspaper columnist Andrew Bolt to have breached the Racial Discrimination Act, there have been regular calls for repeal or amendment of section 18C.
The RDA should remain in its current form. As they stand, sections 18C and 18D strike an appropriate balance between freedom from racial vilification and freedom of speech.
In 2014, the federal government attempted to repeal section 18C, following an election pledge to do so. The proposed legislative change was abandoned after widespread public opposition to the government's proposal. One Fairfax poll in March 2014 found that 88 percent of people agreed that it should remain unlawful to offend, insult or humiliate someone because of their race. Other research has indicated strong majority support for the retention of the current section.
More recently, numerous parliamentarians have advocated the deletion of 'offend' and 'insult' from section 18C. Advocates of legislative change argue that the current provision places an unreasonable limitation on freedom of speech. The Parliamentary Joint Committee on Human Rights is currently considering the operation of the RDA and the complaints-handling processes of the Australian Human Rights Commission.
Much of the criticism of the RDA has been misplaced or misguided. Many critics have ignored how section 18C is accompanied by section 18D, which protects any fair comment or reporting on a matter of public interest, and any sentiment expressed 'in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose'. Provided something is done reasonably and in good faith, any fair comment or public discussion will be exempt from being in breach of section 18C.
Throughout my time as Race Discrimination Commissioner, I have consistently said there is no persuasive case for changing section 18C. The RDA should remain in its current form. As they stand, sections 18C and 18D strike an appropriate balance between freedom from racial vilification and freedom of speech. It is important that Australian society sends a strong message that racial vilification can be held to account, while guaranteeing freedom of speech.
Throughout my time as Race Discrimination Commissioner, I have consistently said there is no persuasive case for changing section 18C.
This has been a concern also expressed by many who have made submissions to the current parliamentary inquiry. Of the 370 or so unique submissions made to the inquiry, a majority have been in favour of retaining the current wording of the RDA. Among the communities whose members are most susceptible to experiencing racism -- Indigenous communities and multicultural communities across the country -- the view has been unanimous, at least among representative community bodies, that the RDA must continue to send an unambiguous signal. Racism should never be condoned or tolerated. If section 18C were to be watered down, if some words of the section were to be deleted, or if the bar to racial vilification were to be raised, that is precisely the risk our society would run.
This risk is underlined by recent surveys, which indicate experiences of racial discrimination may be on the rise. The Scanlon Foundation's national social cohesion survey found that the reported experience of discrimination among respondents rose from 15 percent in 2015 to 20 percent in 2016, which is the highest level recorded for a decade. Reconciliation Australia's survey research has also found that almost half (46 percent) of the Aboriginal population has described experiencing racism during the past six months (up from 39 percent in 2014).
At a time when race when racist and nationalist elements of the community are being emboldened, when it is clear that experiences of racial discrimination have been on the rise, our parliament should consider: Does it really wish to signal that it may be easier to say things that are racially harmful? Does it wish to say that people will be able to excuse racial vilification as an expression of free speech? That a right to vent racial sentiments must outweigh a right to be free from racism?
Is this the kind of society we want to become?
This is an edited extract of a speech Tim Soutphommasane gave today at the University of Adelaide Law School.
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