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Committee Secretary Parliamentary Joint Committee on Human Rights Inquiry Into Freedom of Speech in Australia Parliament House Canberra ACT 2600

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Committee Secretary Parliamentary Joint Committee on Human Rights Inquiry Into Freedom of Speech in Australia Parliament House Canberra ACT 2600 Committee Secretary Parliamentary Joint Committee on Human Rights Inquiry into Freedom of speech in Australia Parliament House Canberra ACT 2600 16 December 2016 Re: Freedom of Speech in Australia – Racial Discrimination Act Dear Committee, I am grateful for the opportunity to provide a submission to the inquiry into Freedom of Speech in Australia. I have written previously on Part IIA of the Racial Discrimination Act 1975 (Cth) in my academic work and some media commentary.1 I am one of the few academics in Australia from a minority background who has written on Part IIA of the RDA. I have expertise in this area of the law. Regrettably, I also have personal experiences of racial abuse. The structure of my submission is in three parts. First, I will set out the purposes of racial vilification laws. Second, I will address the jurisprudence as it currently stands. Third, I will address the broader background to the current inquiry. In sum, my submission is entirely directed towards the first question posed by the inquiry. Namely: 1. Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss. 18C and 18D should be reformed. I will make no detailed remarks on the conduct of the current Race Discrimination Commissioner other than to note that it is deeply inappropriate for a Commissioner, who is charged with overseeing the conciliation process, to solicit complaints. It is self-evident that any pretensions to impartiality would be lost the moment that a decision-maker solicits a complaint against a particular party. In summary, I recommend: (i) That Part IIA is in need of slight reform, but care should be taken to not greatly elevate the harm threshold; 1 See Dilan Thampapillai, ‘Inconsistent at Best?: An Analysis of Australia’s Federal Racial Vilification Laws,’ (2010) Canberra Law Review 1. Also, Dilan Thampapillai, Managing Dissent Under Part IIA of the Racial Discrimination Act, (2010) 17(1) eLaw Journal 52. 1 (ii) That Part IIA of the RDA could be amended to bring it into line with State and Territory legislation; (iii) That the laws should be clarified so as to stipulate that racial vilification laws apply equally to all members of the community; (iv) That the test for vilification should have some regard to the views of the members of the aggrieved community; and (v) That Section 18D be amended to remove the term ‘good faith’. I. RACIAL VILIFICATION LAWS GENERALLY (i) The purpose of Racial Vilification laws There is a genuine need for laws against racial vilification. It is a regrettable fact that there are some members of the Australian community who would seek to harass, intimidate, severely insult or exclude others on the basis of their race. Their reasons for engaging in this type of conduct may vary. They may be unable to handle the existence of racial diversity within the wider Australian community. They may be unable to accept the reality that they have to compete for educational, employment and professional opportunities on an equal basis with people of other races. Regardless of the reasons for their conduct, their inability to perceive and treat others equally is their own personal problem. In 2014, the current Attorney-General stated, “people do have a right to be bigots.”2 The minor controversy surrounding the way in which he made those remarks might have been somewhat unfortunate.3 Nonetheless, his point was rather well made, but notwithstanding rights to privately held bigotry, people should not necessarily have the right to impose that bigotry upon others. There is a huge difference between holding a set of beliefs and forcefully asserting them in a way that diminishes the quality of life of other citizens. Likewise, there is a massive difference between free speech, in terms of communicating ideas, and harassment. In his book on freedom of speech in Australia, Professor Michael Chesterman wrote that where racist statements are freely disseminated the consequences would be that the, “equality between groups of citizens and the dignity and security of individual citizens are threatened.”4 2 Senator George Brandis, Hansard, The Senate, 24 March 2014, p1797 3 Senator Wong’s rejoinder is worth reading. See Gabrielle Chan, ‘Race law debate touches a personal chord – in Parliament and out,’ The Guardian, 28 March 2014. Available at: http://www.theguardian.com/world/2014/mar/28/race-law-debate-touches-emotional-chord-in- parliament-and-out. Senator Nova-Peris’s experiences with racism have also been recounted in the media. See Stuart Rintoul, ‘The Fast Track’, Sydney Morning Herald, 22 March 2014. Available at: http://www.smh.com.au/federal-politics/the-fast-track-20140317-34wav.html. 4 Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (Ashgate, 2000), 193. 2 The law should not lend itself to allowing bigots to harass, intimidate, severely insult or exclude others on the basis of their race. Unfortunately, there is a danger that if 18C is amended to raise the harm threshold, that a range of racist behaviours might become lawful or might be perceived by some to be lawful. Suffice to say, intimidation and harassment are not desirable qualities in an open and vibrant public life. There are strong pro-democratic reasons to support racial vilification laws. Equality is of paramount importance to a democratic society. As the Canadian Supreme Court stated in R v Keegstra5: Expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics.6 Similarly, in an important essay in the Harvard Law Review, Jeremy Waldron stated: …. hate speech regulation can be understood as the protection of a certain sort of precious public good: a visible assurance offered by society to all of its members that they will not be subject to abuse, defamation, humiliation, discrimination, and violence on grounds of race, ethnicity, religion, gender, and in some cases sexual orientation.7 Racial vilification laws protect the basic dignity of individual citizens. While these laws cannot combat every form of racism or educate racists, they do serve as a useful protection where serious wrongs are committed. These laws should not be used recklessly or invoked over minor matters. These laws do provide minority groups with a measure of protection. Nonetheless, these laws should not be seen as setting up a false opposition between the majority and minorities, within a pluralistic and diverse society these laws also offer a means of restraining hostilities between and from minority groups. Racial vilification laws must acknowledge the importance of free speech in a liberal democracy. There is value in supporting the right of individuals to put forward unpopular or controversial positions. Political debate is often untidy and contentious. As Justice Kirby noted in Coleman v Power, “Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion.”8 However, given that harassment and intimidation go beyond the boundaries of merely espousing controversial ideas the law needs to draw a line somewhere. My view is that there is a legitimate role for the law to play wherever there are serious racist incidents. These may be matters where serious racist abuse is directly inflicted upon an individual. It might also include situations where racist messages 5 [1990] 3 SCR 697. 6 [1990] 3 SCR 697, 764. 7 Jeremy Waldron, ‘Dignity and defamation: The visibility of hate,’ (2010) 123 Harvard Law Review 1596, 1599. 8 Coleman v Power (2004) 220 CLR 1, 91. 3 are sent to a person or where a deeply racist tract is publicly disseminated. In my view, conduct that amounts to harassment, bullying, intimidation (whether engendering an apprehension of physical harm or not), severe insult or serious exclusion, are all legitimate grounds for action under racial vilification laws. Further, given the variety of situations that might arise giving genuine cause for redress the standard must be flexible. That standard needs to reflect a real and dynamic legal relationship between free speech and protection from vilification. On a doctrinal level that relationship is currently well achieved within Part IIA by s 18D. It is difficult to see how the requirements of ‘reasonableness’ and ‘good faith’ impose a burden that is too onerous on participants in public discussion. The only qualification that I would offer is that ‘good faith’ might not necessarily be compatible with the commercial imperatives that surround modern media. I will elaborate on that point below. The reasons for reform I would question whether there is in fact a reasonable basis upon which to amend Part IIA at the present time. In a speech in Parliament prior to the last Government inquiry into 18C, the Attorney-General cited (i) the Eatock v Bolt9 decision and (ii) the absence of laws dealing with incitement to racial hatred as reasons for amending s 18C. Senator Brandis stated: It is certainly the intention of the government to remove from the Racial Discrimination Act those provisions that enabled the columnist Andrew Bolt to be taken to the Federal Court merely because he expressed an opinion about a social or political matter.10 Similar opinions have been expressed in the media. However, a cursory reading of the facts in Eatock v Bolt would demonstrate that Bolt did more than ‘merely’ express a political opinion. Bolt made statements about particular Aboriginal-Australians that were found to be untrue.
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