Sydney, 19th June, 2014
I met Tim Wilson, Commissioner, Australian Human Rights Commission, at an event to celebrate Israel’s 66th Independence Day recently. Our brief chat was focused on Section 18c of Racial Discrimination Act. He has some views in regards to this and its impact on Freedom of Speech. When informed that I have a Blog and have written a post (http://tinyurl.com/pqfv8ct) which has also been published by many newspapers (http://tinyurl.com/qcs2gvv, http://tinyurl.com/ldnwkar, http://tinyurl.com/qd6xjjv) with my views arguing why Section 18c should not be repealed, he expressed his interest to write his views on my Blog. I agreed to have his views as a “Guest Blogger”.
It is not in anyone’s interests, especially minorities, to undermine Australia’s liberal democratic values, impose censorship or encourage inequality before the law.
Australia is a great country. Like all countries it is on a long journey to become a more perfect society.
People come to Australia from across the world because it offers a liberal democracy and respects the human rights of individuals to stand up, speak out and seek out opportunities. It doesn’t matter who you are, or where you came from.
Everyone in Australia is expected to treat others equally and with respect, and that includes treating everyone equally under the law.
Equality before the law is a basic human right. It is also an important principle for minorities. Inequality before the law rarely favours minorities.
If there is anything that is likely to lead to resentment between different sections of multicultural Australia, it is that laws treat some more favourably than others.
Yet, that is precisely what the current wording of Section 18C of the Racial Discrimination Act does.
Coupled with the importance of free speech, that is why so many people support changes to the law. Supporters range from academics, to politicians, newspaper columnists, to representatives of minority communities and civil rights activists.
The current Racial Discrimination Act has always been controversial.
It was preceded by three significant national inquiries that dealt with tackling racism. None of the three recommended that Section 18C should exist in its current form. The then Human Rights and Equal Opportunity Commission expressly recommended against laws of this kind.
Under Section 18C it is unlawful to “offend, insult, humiliate or intimidate” a person on the basis of their race.
The current laws go much further than hate speech laws in India which focus on the promotion of disharmony between groups in the community.
Australia’s laws have a chilling effect on free speech and can lead to censorship.
The debate is not about if we should change the law, it is about how the law should be changed.
The Attorney-General, George Brandis QC, has put forward an exposure draft of a possible reform.
The proposal is not final. Feedback from members of the general community is being considered for inclusion to improve its current wording and identify shortcomings.
The principle objective of the Attorney-General’s proposal is to shift the focus from stopping speech that people simply do not like, toward outlawing vilification and abuse.
Australia’s law sets an incredibly low bar on restricting free speech. The bar is set so low the standard in the law is based on the emotional response that people have to speech they don’t like.
Free speech is a basic human right. It is afforded to everyone. From a human rights perspective, the basis of limiting free speech is when it comes into conflict with other core human rights. No one likes hearing things they find offensive. But there is no right to not hear offensive speech.
By comparison, we know that censorship is dangerous. Censorship is rarely used as a tool against the majority, its axe normally falls on minorities.
But the problem with the law isn’t just about the type of speech that is censored, it is also how it is censored.
The test to see whether speech offends, insults, humiliates or intimidates is highly subjective. It is not based on the standard of a reasonable Australian based on all of the circumstances.
The test is based on the attitudes of a person within the group mentioned. That means the test shifts depending on what is said. That is not fair.
That is why the Australian Human Rights Commission accepted the proposal of the Attorney-General in his exposure draft to amend the Racial Discrimination Act that the test should be based on the attitudes of an average Australian.
So long as the test takes regard of all of the circumstances, the Attorney-General’s revised test is much fairer than the current law. It would also make the Racial Discrimination Act more consistent with other anti-discrimination laws.
The Racial Discrimination Act does not operate like any other anti-discrimination laws. For example, the Sex Discrimination Act does not have a test like 18C. The Sex Discrimination Act does not restrict public speech on the basis of gender or sexuality that is offensive or insulting.
The Sex Discrimination Act targets harassment in the workplace where one person clearly has a power relationship over another. The definition of harassment under he Sex Discrimination Act can just as easily apply to men as it can to women.
Ironically, the Racial Discrimination Act doesn’t have a specific measure targeting workplace harassment.
Section 18C of the Racial Discrimination Act is also highly ineffective in targeting the sort of behaviour that we all want to wipe out.
Racism can have real and harmful impact on people. That is not in dispute.
The question is not if we end racism, it is how?
We cannot legislate racism out of existence. If we could we would have done so already.
Racism can only be ended through cultural change. Cultural change is not aided by having the law treat people unequally. It is aided by having a culture that expects people to stand up against racism.
As Sydney Football Star and Australian of the Year, Adam Goodes, said recently “what we want people to do is self-regulate. That’s what we want all of us to do in the community, is self-regulate when we see something we don’t agree with”.
He continued “we all have core values, and when we see people go outside those core values, we should feel the right to say something and call that person out”.
The law is an incredibly ineffective way to stop racism. It provides for a long and drawn out process. Creating a culture where people are held to account for their conduct by their peers is more effective.
A cultural response is quick, immediate and others know what other Australians think of their conduct.
Importantly it doesn’t require inequality before the law, censorship or undermine the liberal democratic values that are central to why so many people came to Australia in the first place.
Tim Wilson is Australia’s Human Rights Commissioner. firstname.lastname@example.org
Human Rights Commissioner
Australian Human Rights Commission
Level 3, 175 Pitt Street, Sydney NSW 2000
GPO Box 5218, Sydney NSW 2001