FREEDOM OF SPEECH IN AUSTRALIA INQUIRY Submission paper from the Victorian Aboriginal Legal Service BACKGROUND TO THE VICTORIAN ABORIGINAL LEGAL SERVICE The Victorian Aboriginal Legal Service (VALS) is an Aboriginal community controlled organisation. It was established in 1972 by committee, and incorporated in 1975. The VALS is committed to caring for the safety and psychological well-being of clients, their families and communities and to respecting the cultural diversity, values and beliefs of clients. The VALS vision is to ensure Aboriginal and Torres Strait Islander Victorians are treated with true justice before the law, our human rights are respected and we have the choice to live a life of the quality we wish. We operate in a number of strategic forums which help inform and drive initiatives to support Aboriginal and Torres Strait Islander people in their engagement with the justice, and broader legal system, in Victoria. We have strong working relationships with the other five peak Aboriginal Community Controlled Organisations in Victoria and we regularly support our clients to engage in services delivered by our sister organisations. Our legal practice spans across Victoria and operates in the areas of criminal, civil and family law (including child protection and family violence). Our 24-hour support service is backed up by the strong community based role our Client Service Officers play in being the first point of contact when an Aboriginal or Torres Strait Islander person is taken into custody, through to the finalisation of legal proceedings. Our community legal education program supports the building of knowledge and capacity within the community so our people can identify and seek help on personal issues before they become legal challenges. We seek to represent women, men and children who come to us for assistance in their legal matters, and are only hindered in doing this where there is a legal conflict of interest and we cannot act. If this is the case, we provide warm referrals to other suitable legal representatives, which include Victoria Legal Aid, the Aboriginal Family Violence Prevention Legal Service, community legal centres and private practitioners as appropriate. SUMMARY VALS has represented the interests and rights of Aboriginal and Torres Strait Islander Victorians for over forty years. VALS wishes to demonstrate its support for the current operation of Part IIA of the Racial Discrimination Act 1975 (RDA). The RDA, coupled with the complaints process and legislative pathway achieves its aim to protect people from racial vilification and abuse. The operation of the RDA is not intrusive or cumbersome on the rights of the public at large. There has been relatively few court determinations based on the legislation, which speaks to its clarity, cohesiveness and low expense. The Australian Human Rights Commission has considered that when the courts have been asked to interpret s 18C and s 18D, they have done so in a way that strikes a balance between the freedom of living without racial discrimination and expressions of racial hatred and the freedom of speech.1 VALS supports the right to freedom of speech as an important cornerstone of a transparent democratic society. However, that right is not to be held as a higher priority than the safety, security and wellbeing of those who make up that society. As such, the right must be curbed to enable these people to live free from the harassment and abuse that follows racially discriminatory treatment. VALS contends that due to this essential purpose, the RDA is not an unreasonable restriction on free speech. 1 Australian Human Rights Commission at a glance https://www.humanrights.gov.au/our-work/race- discrimination/projects/glance-racial-vilification-under-sections-18c-and-18d-racial THE RACIAL DISCRIMINATION ACT Prior to 1975 there was little an individual could do, under the law, if they felt that they had been subject to racial discrimination in the workplace, in public or in print. These disputes were either dealt with by physical violence or more commonly by turning the other cheek as ethnic minorities have so often done. The RDA followed developments in the international legal sphere by incorporating tenets from the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD). Upon the RDA’s proclamation, then Prime Minister Gough Whitlam, described the RDA as a ‘historic measure’ that would ‘entrench new attitudes of tolerance and understanding in the hearts and minds of the people’. The RDA was the signal to our nation that the days of the White Australia policy were dead and we would be moving towards a respectful and multicultural nation. The Racial Discrimination Act is intended to protect Australians, whether they are Irish, Sudanese or Aboriginal, from unfavourable treatment because of their race. In practical terms this mean that the Aboriginal person who was excluded from the pub, due to the colour of their skin, had a law to protect their right to be treated the same as their Anglo- Saxon friends. The RDA not only protected individuals from racial discrimination but also cleared the path for other legislative instruments that protected individuals from discrimination based on their gender, disability or age. In 1991 the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) Report of 1991 recommended the introduction of legislation to ‘proscribe racial vilification and to provide a conciliation mechanism for dealing with complaints of racial vilification’2. This recommendation was made in light of the over-representation and deaths in custody of Aboriginal and Torres Strait Islander people.3 The Royal Commission emphasised that the legislation would recognise ‘the important fact that language itself can be a form of violence’4. Less than a year later the Australian Law Reform Commission’s Multiculturalism and the Law report supported the RCIADIC recommendation that incitement to racist hatred 2 E Johnson, Royal Commission into Aboriginal Deaths in Custody, National Report Volume 4 (1991), para 28.3.50, recommendation 213 3 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 2, 12.1.2. 4 E Johnson, Royal Commission into Aboriginal Deaths in Custody, para 28.3.34, <www.humanrights.gov.au/publications/racist-violence- should be unlawful, but that there should be no criminal penalty and a conciliation process for complaints should be incorporated into any amendment.5 As a result of the these reports the current federal racial vilification provisions were introduced to Parliament via the Racial Hatred Act 1995. In 1994, introducing the Bill into parliament for the second time, then Attorney General Michael Lavarch noted the link between racial vilification and violence and emphasised that the first step to the path of physical violence is language tainted with hatred and intolerance and it was integral that this be countered while also respecting freedom of speech.6 Part IIA of the RDA included sections 18C and 18D. Section 18C provides 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. 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. By making acts of racial vilification unlawful, the RDA has set a norm for civility in a multicultural society. Indigenous Australians and other ethnic minorities affected by racial vilification have responsibly used section 18C as an instrument for advocacy and education, as well as a way for them to empower their communities to use the law to protect themselves rather than their fists. The RDA has also played an important role when facilitating relationships and reconciliation in Australia for Aboriginal and Torres Strait Islander Peoples. It was featured in the Mabo decision in 1992, and is commonly referred to in current Native Title cases.7 The National Congress of Australia’s First Peoples has noted that it has also prevented state governments from creating discriminatory laws against Aboriginal and Torres Strait Islander Peoples.8 Such experiences demonstrate the powerful legal and educative effect of the legislation and its contribution to not only eliminating racial discrimination but to reducing the overrepresentation of Aboriginal and Torres Strait Islander Peoples in the justice system. 5 Australian Law Reform Commission, Multiculturalism and the Law: Report No 57 (1992), p. 132–33, <www.alrc.gov.au/report-57>. 6 Commonwealth of Australia, Parliamentary Debates, House of Representatives, Tuesday 15 November 1994, p. 3336 (The Hon Michael Lavarch MP, Attorney-General). 7 Such as Re Lake Torrens Overlap Proceedings (No 3) and Rrumburriya Borroloola Claim Group v Northern Territory 8 National Congress 2014 paper Operation of the RDA There is no simple way to determine whether a law has been effective or whether it has had a significant impact on the community. However, it is even more difficult when the majority of the individuals utilising the protection of the RDA settle their claims in conciliation rather than litigation. Whilst conciliation is a useful process that allows all parties to the dispute to discuss the issue and try to resolve it in an amicable fashion, it does frustrate the ability of the courts to interpret the RDA and for the public to determine its usefulness. Whilst the many critics of the RDA might have you believe that it’s an unfair constraint on freedom of speech that will land you a significant penalty, a contravention of the RDA will amount to a statutory civil wrong, the results of which can vary widely. In this jurisdiction we only occasionally see substantial payments of compensation in the event of significant economic loss or hurt, humiliation and suffering.