NATIONAL AFFAIRS: by Terri M. KelleherNews Weekly
Racial discrimination amendments rule out hate speech
, April 12, 2014
On the bustling station platform in a huge, new modern city in China the announcement over the loudspeaker system to commuters is: “Be polite and be kind to others!”
There is nothing wrong with the sentiment, but one wonders about the effectiveness of a disembodied voice from an anonymous person delivered in a public place in moulding people’s behaviour.
At the bottom of opposition to the Abbott government’s proposed amendments to the Commonwealth’s Racial Discrimination Act is a false expectation of what the law can do. The reality is that the law cannot make people nice to one another.
Section 18C of the federal Racial Discrimination Act, which is the focus of the present vigorous public debate, makes it an offence to commit an act that “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people … because of … race, colour or national or ethnic origin”.
In making it an offence to merely “offend” or “insult”, it sets the threshold too low for constituting an offence. This is like the law trying to make people nice to each other.
Human rights lawyer and asylum-seeker advocate, Julian Burnside QC, has commented that “existing racial discrimination laws go too far by making it an offence to upset people.… The mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability” (Sydney Morning Herald, March 29, 2014).
Media reports of the proposed changes give the impression that Section 18C is simply to be repealed, leaving no provision to govern racial hate speech. But a new section is to be put in its place which would stipulate: “It is unlawful to ‘vilify’ or to ‘intimidate’ another person or group of persons.”
“Vilify” here is defined as “incite hatred” and “intimidate” is defined as “cause fear of physical harm”. This would set the bar for committing an offence more to where it should be — i.e., a prohibition against hate speech which can result in fear of, or actual, physical harm. It balances the right to feel safe from personal attack with the right to free speech.
As Chris Berg of the libertarian Institute of Public Affairs (IPA) wrote in the Melbourne Age: “Nobody denies the harm of hate speech. But nor should anybody deny the necessity of protecting free expression for the maintenance of a democratic system and as a basic individual right” (The Age, March 30, 2014).
The International Declaration of Human Rights recognises both the right to personal safety (Article 2) and the right to free speech (Article 19). But there is no right to protection from being offended.
Jurist and former ABC chairman, Jim Spigelman AC QC, said in his 2012 Human Rights Day Oration to the Australian Human Rights Commission: “None of Australia’s international treaty obligations require us to protect any person or group from being offended. We are, however, obliged to protect freedom of speech.”
He added: “We (Australians) should take care not to put ourselves in a position where others could reasonably assert that we are in breach of our international treaty obligations to protect freedom of speech.”
Michael Danby, Victorian federal Labor member for Melbourne Ports, writing an article in the British Guardian newspaper, said that “Section 18C is to promote tolerance by bringing parties together to discuss the subject of their complaint and arrive at a conciliated and agreed outcome” (The Guardian, March 25, 2014).
However, it may only be the complainant who is satisfied by this process. For the accused, despite the likelihood that the matter is not serious enough to go to court (53 per cent of complaints in 2012-13 were resolved by conciliation), there is stress, time and money involved in having to attend mediation.
David van Gend a Toowoomba GP, was obliged in 2011, under Queensland provisions similar to Section 18C, to attend conciliation of a complaint made against him. The complaint was withdrawn, but not before Dr van Gend had to attend conciliation, at a cost in time and money to himself.
Another case in point was the 2004 lawsuit the Islamic Council of Victoria brought against two Christian pastors, Danny Nalliah and Daniel Scot, under Victoria’s Racial and Religious Tolerance Act.
After nearly five years of litigation and nearly half a million dollars in legal costs, the matter was settled on terms the pastors would have agreed to at the outset — that the parties recognise that there is a right to robust debate about religion.
A provision such as Section 18C, as it currently stands, effectively enables a complaint to be made to punish a person whose views the complainant finds offensive or insulting. This is scarcely likely to promote tolerance.
Wesley Aird, a former member of John Howard’s indigenous advisory council, recently warned that laws will never stop racism. He said: “I am in favour of free speech and firmly of the view that no amount of legislation can stop idiots saying stupid things” (The Australian, March 28, 2014).
Terri M. Kelleher is Victorian state president of the Australian Family Association.