Freedom: Rights and Responsibilities

The video with Commissioners Soutphommasane and Wilson deals with an abstract idea that is absolutely central to our system of liberal democracy: freedom.  In particular, it examines the conflict between the concept of negative freedom (e.g. freedom of speech) and the concept of positive freedom (e.g. protection from discrimination), and the difficulties that these present for current debates about amending the Racial Discrimination Act.  This film helps to educate Australians about one of the most central ideals in our system of government, but one which is also complicated and difficult to understand.  The video also educates Australians about the government institutions that exist under the Constitution, the way that they interact with one another, and deliberations about changing the law in Australia.  

Dr Tim Soutphommasane, Race Discrimination Commissioner.

Can you eradicate racism through law?

Can you legislate for virtue or eradicate racism through laws? These are questions that have been raised in the current debate about the Racial Discrimination Act.

Some, particularly those who favour the Federal Government’s proposed reform to the Act, suggest that combating discrimination is best left to the marketplace of ideas. We should fight bad speech, as it were, with good speech. It is argued that if people wish to air their prejudices and bigotry, we should let them be censured or ridiculed with the speech of others.

This view is wrong for a number of reasons. While it would be naïve to believe that legislation alone can solve society’s ills, it would be even more naïve to believe that laws should therefore be no part of the solution at all. As with all markets, the marketplace of ideas can fail. It is simply not reasonable or realistic to believe that racist speech can be fought with well-reasoned rebuttal – for the simple reason that that racist speech often is not rational in the first place. When confronted, for example, with a racist rant on a bus, a burst of rational speech may do nothing to change the mind of the one doing the ranting.

Moreover, it can be unrealistic to prescribe that those who are subjected to racist abuse should only fight back with speech, and speech alone. Racism can silence its targets. It may be one thing for someone occupying a privileged social position to speak back when confronted with abuse. It may be another for someone who may be speaking from a more marginal or vulnerable position to do the same.

The law should have a role in combatting racism. The law regulates many aspects of our social life, after all. Why should it not also have something to say about abuse and harassment that violates another person’s dignity and freedom? Why should it not play a part in setting a civil and tolerant tone in a liberal democratic society? And if we do affirm that racism is abhorrent, and that we should endorse actions designed to ameliorate behaviour, why should we not use the law to set civil standards?

In the case of the Racial Discrimination Act, its provisions on racial vilification have, during the almost two decades they have been in operation, done a number of things. Not least, they have influenced the emotional climate of the public culture. They have helped to set the tone for our multicultural society. They have provided all Australians with a legal means of holding others accountable for public acts of racial vilification that have the effect of degrading them.

There is no good reason for changing a law that have been in place for close to 20 years, and which have worked well to provide legal remedies for racial vilification. This is a law that was introduced as a result of recommendations of a number of major reports and inquiries during the 1980s and 1990s, including the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into Racist Violence. Now is not the time to be weakening legal protections against racism. Now is certainly not the time to be elevating a right to bigotry over a right to be free from bigotry’s effects.

As it currently stands, the current federal racial vilification provisions strike a fair balance between protecting people from racism and protecting freedom of speech. This is demonstrated by the relationship between sections 18C and 18D of the Act. Section 18C states that it is unlawful to commit a public act that is reasonably likely to ‘offend, insult, humiliate or intimidate’ someone on the grounds of race (language drawn from the sexual harassment provisions of the Sex Discrimination Act). Section 18C is accompanied by Section 18D, which ensures that artistic works, scientific debate, and fair comment on and fair reporting of a matter of public interest are exempt from being in breach of Section 18C – provided that something has been done reasonably and in good faith. As it stands, Part IIA provides only a civil prohibition of racial vilification; it gives force to no criminal sanction against racial hatred and incitement.

Central to the current racial vilification provisions is the conciliation process that exists for complaints made about racial discrimination. The emphasis of the legislative provision against racial vilification is to bring parties to a complaint together to discuss the matter and arrive at an agreed resolution of the complaint.

This educative and civil quality of Part IIA is frequently overlooked. For example, it is commonly assumed that breaching Section 18C results in a prosecution or criminal penalty. No one, of course, can be prosecuted for a crime under the Racial Discrimination Act, or convicted for racial vilification under Commonwealth law. In most cases, litigation does not even occur: last financial year, of the 192 complaints concerning racial hatred, only five (or 3 per cent) ended up in court. This is because any complaint involving racial vilification must be made to the Commission in the first instance, where the Commission will attempt to resolve the matter between the parties (which we do at no cost, and do successfully in the majority of cases). Only if the complaint is not resolved through conciliation, may the complainant can apply for the allegations to be heard and determined by the Federal Court of Australia or Federal Circuit Court of Australia.

One major reason why Australia has succeeded as a nation of immigration, as an emphatically multicultural society, has been the political leadership exercised on matters of race. Racial tolerance has been one of the pillars of contemporary Australian political morality. We have been fortunate that leaders in this country have regarded racial tolerance not as a prudential or political requirement, but as a requirement of morality. There is an urgent need to affirm this. As the debate about bigotry and free speech continues, we should make sure we are asking the right question. It is not, “Do we have a right to be bigots?” The question is rather, “What kind of society do we want Australia to be?”

Tim Wilson is Australia’s Human Rights Commissioner

Censoring free speech on important subjects undermines our liberal democracy and can do harm to those it seeks to protect.

There is no doubt racism exists in Australia. It exists I'm every society. From unintentional, to casual, to deliberate and malicious racism, it is harmful and hurtful for those it targets.

In its current wording, Section 18C of the Racial Discrimination Act makes it an offence to “offend, insult, humiliate or intimidate” a person on the basis of their “race, colour or national or ethnic origin”.

The provision sounds sensible enough. But inside this provision rests a tension between the core human right of free speech and the ongoing and worthy objective of extinguishing racism.

The reality is that we are never called to defend free speech for the excessive use of ‘please’ and ‘thank you’. We are only ever called in to defend free speech for expressions that challenge acceptable norms.

If the law is too limiting then legitimate speech about important matters related to race are censored and can limit our capacity to address legitimate issues in our community.

That’s why the Federal government proposed reforms to the Racial Discrimination Act to defend free speech while still stomping out harmful racial abuse.

The test of a tolerant society is accepting the person’s right to say something outrageous and for it to be challenged and tackled, but not silenced. That’s why reasonable voices are accepting there is a need to change the Racial Discrimination Act so that we can protect intellectual freedom while also combatting racism.

Recently the head of the Prime Minister’s indigenous Council and former National President of the Australian Labor Party, Warren Mundine, was critical of the proposed changes, but did concede that “there is no doubt we need to amend the act and make sure it’s focused”.

Spokespeople for the NSW Rabbinical Council acknowledge that the current design of the laws make it hard for rabbis to “get up and make a pronouncement on certain moral issues [because they] … might insult [someone]”.

Similarly, senior Jewish community leader, Mark Leibler, has said “there is a possibility of working out a solution which will be a sensible compromise that will keep everyone satisfied”.

Reasoned voices accept a need to change the Act, the question is how.

The current law is designed to stop public racism. But it does not outlaw racism. Speech is only the expression of thought. Under the current law racist thought and private speech is still legal.

Like all prejudice, racism needs to be constantly tackled. But censorship is not the solution. Censorship merely sends racism into dark corners where it festers and takes on a more ugly and explosive form.

The problem with the current law is that it has a chilling effect on legitimate public debate. Not all discussion on race is racism.

Under the Australian Constitution the Federal Parliament has the power to design laws specifically based on race. Many laws designed to advance the interests of indigenous Australians operate under this section of the Constitution, but so have many others with the reverse intent.

If the government can legislate on it, we have to be able to freely talk about it.

To make sure these laws are designed properly all Australians need to be able to speak honestly and openly about matters related to race, including if it may offend or insult others.

As Former New South Wales Solicitor-General, Michael Sexton SC, recently identified someone can take offence at matters that are entirely factually accurate. Sexton argued “the statement that in and around 1915, up to 1.5 million Armenians in Turkey died … and most because of the policies of the Turkish government … [yet] many Turks would be offended and insulted by claims of the Armenian genocide”.

That is where the current design of the Racial Discrimination Act is deficient. The breadth of the current law makes it unlawful to speak on racial matters based on how some people might react.

By comparison, equivalent State laws focus squarely on speech that amounts to abuse and incite others to abuse. That is where the law should be focused.

Despite popular expectation, no Federal law operates to limit other forms of prejudice including homophobic or sexist speech in public. There is only one related to race.

A myth surrounding the current Act is that covers vilification. It does not. The government’s proposal is to remove restrictions on speech that may “offend, insult, humiliate” and insert for the first time a defined recognition of the need to restrict vilification.

The other problem with the current law is how it has been interpreted. Any restricted interpretation of the Act is currently worded is at the discretion of the courts, but is not required.

Unlike other Federal anti-discrimination laws, the Racial Discrimination Act does not require the assessment of whether an offence has been committed based on a “reasonable person”.

Instead the Act allows for violations to assessed based on the attitudes of a person from the community affected by that speech.

That raises a number of problems. First, it means that the law acts as a fait accompli because if one person is offended it will almost certainly offend the broader group.

Second, it raises serious issues for the human right to equality before the law.

Under the current law it is possible that two persons, standing side-by-side, can be saying exactly the same thing at a public event. But because one individual is (or appears to be) from a particular “race, colour or national or ethnic origin” their speech can be legal, while the other, not from that group, is not legal.

That is unjust.

That’s why the government has proposed that the test of whether an offence has occurred is “determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community”.

A version of this standard will make the law consistent with other anti-discrimination laws.

Third, the current design of the Act can have a chilling effect on speech designed to tackle other forms of unjust prejudice. Sadly there remains culturally-based homophobia within some ethnic communities that, if called out, may “offend, insult, [or] humiliate” people from that ethnic community.

Tip-toeing around unjust prejudice for fear of offending cultural sensitivities is as unjust as turning a blind eye to racism.

People have come from across the world because of the liberal democratic society Australia offers.

Our society values freedom, tolerance and responsibility, and that includes a society that values free speech. The proposed change is about protecting these important values, while making sure our society continues to tackle genuine racial abuse.