Speech to Australian and New Zealand Sports Law Association Annual Conference
Check against delivery
Most of us would agree that booing can be a healthy ritual in Australian sporting life. Every summer at the cricket in Melbourne, as the Mexican wave circles the vast arena of the MCG, before being punctuated in its path by the Members’ Stand, the loud roar gives way to the low blowing of boos, before the wave builds yet again on the far side of the ground.
For those uninitiated, it may seem like a strange ritual. But the booing is good-natured. Sociologist John Carroll explains it as saying the following, ‘Look, if you think you’re different or superior or better, you’re not ... it’s we, the people who are custodians of this ground and we’re all here today, you the members and we, us, joined in our common higher enjoyment of sport, of being Australian, of the event’. As Carroll says, ‘there’s a terrific, impish inclusiveness’ in the ritualistic booing that’s part of the Mexican wave.
Of course, not all booing can be so terrific or inclusive. This September, during the AFL grand final, boos reverberated around the MCG. They were not good-humoured boos performed in egalitarian jest. Rather, they were being directed at one particular player: Adam Goodes.
Since being announced as the Australian of the Year for 2014, Goodes has been booed by crowds in Melbourne whenever he touches the ball. There are a number of explanations. Some say it is because of the way Goodes plays the game. Some commentators suggest Goodes may at times be ‘staging’ to win free kicks.
Yet others say the booing may have a more questionable quality: spectators may be booing because Goodes has been so outspoken about social issues. In an Age column earlier this year, sportswriter Jake Niall observed that the booing of Goodes may have something to do with his leadership on matters of race. Niall cites the distinction drawn by historian Shelby Steele about African-American leaders in the United States: the bargainers – who adopt a ‘go along to get along’ view – and the challengers – who confront racism directly. According to Niall, ‘Goodes, intentionally or not, is our challenger on race conduct in the AFL. Sadly, elements within the football public can’t accept this kind of challenge’.
Today, I would like to provide some remarks on racial vilification and sport. On matters of race, recent developments in sport have been significant not only in revealing changes in society, but also perhaps in being precursors to those changes themselves. This is how it has always been. Sport reflects, as well as shapes, the character of Australian society.
In thinking about your conference theme of ‘crossing the line’, I have been reminded of the Trinidadian author CLR James, who wrote what many regard as the finest book on cricket – Beyond a Boundary. James asked, ‘What do they know of cricket who only cricket know?’ It is a question that applies to sport in general, because what happens within the lines of the sporting field will have significance well beyond its boundaries. Crossing over that marked line does not insulate you from the rest of the world. Indeed, at a time when there has been intense public scrutiny of race, including on the laws relating to racial vilification, sport provides an interesting window into the national psyche.
It is only appropriate that a contemporary Australian perspective on racial vilification and sport begins with Adam Goodes. During the past two years, no other Australian has arguably done as much to shape public discussions about race.
You will all be familiar with the background. In responding to a young spectator who called him an ‘ape’ at the MCG in May 2013, Goodes brought the issue of racial vilification to the centre of national attention. His candour in speaking about the hurt of being slurred demonstrated to us all how words can wound the soul. And by virtue of the subsequent interventions by Collingwood Football Club president and media personality Eddie McGuire, Goodes was unlikely to have faded quickly from public interest. Being named Australian of the Year – which was in part a recognition of his public stance against racism – has ensured this wouldn’t be the case.
The truest measure of Goodes’ impact has been in the public consciousness. Since 2013, there has perhaps been a greater readiness by the national media to report public incidents of racism. In the realm of sport, an incident involving a spectator directing a racial epithet at a player can be enough to attract national attention. It now also tends to attract from sporting authorities the sturdiest of rebukes. Members of AFL clubs, for example, have been expelled for racial slurs.
Once, such conduct would have been regarded as an inevitable feature of weekend football – unpleasant, perhaps, but ultimately trivial. Today, it now carries with it an evident stigma.
More generally, we have seen a new prominence in the reporting of racism. With regular frequency, episodes of racial abuse in public are being recorded and replayed for the general public. Take the recent example of a Brisbane security guard on a train being subjected to a racist tirade from a young teenage passenger. Take the case of Karen Bailey, whose barrage of anti-Asian abuse on a Sydney train made international headlines. In such cases, we have examples of a genre of racial vilification – one transmitted through social media, but which captures in graphic detail the ugly human dimensions of racism.
Through all this, we have also seen a new standard of response. The script has changed. Once, racist conduct would have been regarded as not warranting extensive public reporting. Racism may be unpleasant, but it may also have been regarded as an incidental part of life. If you’re in public places, you may always have to anticipate social ugliness from time to time. In sport, if you don’t want to put up with overhearing some racial epithets from spectators, maybe you’d be better off watching a match on the TV at home.
It is a sign of progress that the default has changed. The expectation now is that anyone in a public place, going about their business, is entitled to be free from abuse or intimidation. No one has the right to pollute the atmosphere of a sporting match with their verbal racial poison.
There has been one other respect in which attitudes have changed. More people appear to be standing up to racism when it happens. Consider those episodes involving racial vilification by spectators at a sporting match. Many that received public attention this year involved spectators reporting other spectators’ behaviour. This was what happened in the case of separate incidents involving supporters of the Western Bulldogs and Hawthorn AFL teams.
Such developments are encouraging. They appear to indicate that some of the messages about anti-racism have been getting through. Since 2012, for example, the Australian Human Rights Commission has led the Racism. It Stops with Me initiative – a public awareness campaign aimed to empower Australians to counter racial prejudice and discrimination.
Among other things, the campaign invites organisations across the country to pledge their support in combating racism. To date, about 300 organisations have answered the call. This includes a large number of sporting organisations: just about every national organisation representing the respective codes – AFL, rugby league, rugby union, football/soccer, cricket, netball, tennis – have joined. A number of national sporting clubs and local sporting clubs are also on board.
As the name of the campaign suggests, though, the message is one of personal and social responsibility: everyone can resolve that racism will stop with them. We encourage people to consider speaking out against racism, when it is safe to do so; to report an incident of racist abuse to authorities; and to provide comfort or support to targets of racism.
Naturally, I hope Racism. It Stops with Me has contributed to some of the changes in attitudes. A good deal of credit, however, must be given to prominent individuals such as Adam Goodes, who has helped lead the national conversation on racism. Goodes has done this not just as Australian of the Year, but also as an ambassador of our campaign.
In this, Goodes has been the latest in a line of Aboriginal athletes who have elevated racial matters to national prominence. Two in particular spring to mind, both also AFL players. One of the most powerful images associated with racism in Australia remains one of Nicky Winmar, who in April 1993 responded to racial abuse from Collingwood supporters by lifting his jumper and pointing to his skin: ‘I’m black and I’m proud to be black’. Then there was Essendon champion Michael Long, who in 1995 complained to the AFL about racial abuse from Collingwood player Damian Monkhorst. The matter would eventually see the AFL introduce into its code for players a rule prohibiting racial vilification – the first of its kind in Australian sport.
Sport and the law
Michael Long’s complaint to the AFL wasn’t initially handled in a way that brought Long satisfaction. Officials from Essendon criticised the AFL’s hearing of the complaint – among other things, the AFL had failed to provide a mediator in the matter. Others highlighted that the AFL had promised, following the Winmar incident of 1993, to introduce a code of conduct relating to racism.
The AFL ultimately responded to the Long case by introducing ‘Rule 30’, which made it an offence for any player or official to insult or vilify a person on the basis of that person’s race, religion, ethnicity, colour, nationality or background. The rule also put in place a process for complaints to be handled through a conciliation process, leaving it open for a matter to be referred to the AFL tribunal should conciliation fail. A penalty of up to $50 000 was introduced for any club found liable for racial vilification.
Subsequently, a number of other sporting codes have instituted racial vilification codes. For example, following the 2005-06 summer – which involved racist taunts being directed at visiting cricketers, prompting an International Cricket Council investigation into the behaviour of Australian crowds – Cricket Australia made it a condition of entry into international matches that patrons do not engage in any conduct that constitutes racial abuse or vilification. Cricket Australia now also has a racial and religious vilification code, which has been adopted for all national competitions. The code states that:
a player will not engage in any conduct, act towards or speak to any other player in a manner, which offends, insults, humiliates, intimidates, threatens, disparages or vilifies the other player on the basis of that player’s race, religion, colour, descent or national or ethnic origin.
Where a complaint is made, Cricket Australia may refer a matter to conciliation.
Since the mid-1990s, the NRL has also had in place guidelines about referring matters of racial abuse to conciliation, when parties fail to reach an amicable outcome. Under the NRL’s current members protection policy, all forms of harassment, discrimination and bullying are prohibited. The policy specifically prohibits abusive, discriminatory, intimidating or offensive statements being made online, including on social networking sites.
These represent a sample of the approaches taken by different sporting codes to deal with racial vilification. As we can see, some codes specifically prohibit racial vilification, while others address the more general category of harassment, discrimination and bullying. Yet the examples I’ve listed have in common a procedural commitment to conciliation as a mode of resolving complaints.
In this respect, voluntary sporting codes of conduct mirror Australia’s federal laws on racial vilification. Since 1995, the Racial Discrimination Act makes it unlawful under section 18C to offend, insult, humiliate or intimidate another person or group of people because of their race, colour, or ethnic or national origin. Where someone believes they have been racially vilified in public, they are free to lodge a complaint with the Australian Human Rights Commission. The Commission will investigate the matter and attempt to conciliate between the parties involved. If conciliation fails, a complainant is free to pursue the matter in the Federal Court or the Federal Circuit Court.
The civil and educative character of federal racial vilification laws is not always well understood, even by those who work in human rights. Many commentators have said that you can be ‘prosecuted’ for racial vilification, that section 18C makes some forms of speech ‘illegal’, or that you can be ‘convicted’ for an offence under the section. The Racial Discrimination Act enables none of these things. As a civil provision, section 18C does not involve prosecution, nor can anyone be convicted for it. It is not accurate to speak of an ‘offence’ being committed under the Racial Discrimination Act.
What the law does is it simply enables someone to hold another person accountable for anything that offends, insults, humiliates or intimidates them because of their race. In the vast majority of complaints, the matter doesn’t make it to court. The majority are resolved at conciliation. The redress usually involves something such as an apology or some other recognition of the harm caused.
One of the merits of conciliation in dealing with matters of racial vilification is that it does allow for people to understand the impact of their words or behavior on another person. Quite often, those who direct racial epithets at others are simply ignorant of the hurt that can accompany words. They may have no personal experience of being subjected to the demeaning nature of racial discrimination; they may have no sense of understanding what it may feel like to be humiliated as a second-class citizen.
Related to this is another merit. It ensures that people can learn exactly why they are being brought to account. Quite often, those who deal out racial vilification do so with arrogance. They may do so accompanied by a belief that they are entitled to say whatever they like, without being held to account. And they may do so with the belief that a motive of joking around is enough to get them off the hook.
Conciliation means that a perpetrator of racial vilification may have to answer to their target. When it is pursued, with parties coming to the table in good faith, conciliation can open up some honest conversations. In having education as its goal, it also helps us to get to some of the sources of racism: ignorance and arrogance.
Let me quickly illustrate the dimensions of this educative challenge. In 2005, then Parramatta Eels player Dean Widders complained that South Sydney Rabbitohs skipper Bryan Fletcher had racially abused him during a match. A contrite Fletcher apologised to Widders, was stripped of his club captaincy, suspended and fined, and ordered by his club to help Widders’ work with Aboriginal children. People at the time said Widders may have over-reacted to the situation – that what is said on the field in the heat of the moment should stay on the field. This may be easy to say from the perspective of the spectator or even someone responding to a complaint. For the person who experiences racism on the sporting field, it may wound just as much as when it is delivered off the field.
In his reflections, Widders highlights how difficult the task of education can be – even among friends:
I remember being at a function where two players who had played in the same team for over 10 years were part of a general discussion. The non-Aboriginal player turned to the Aboriginal player and said: “...it’s like when I used to call you a black so and so. You knew it was a joke”.
The Aboriginal player, who has accepted this for years, finally had the courage to say “No, I didn’t”.
They were friends, but that night was the first step in them reaching a better understanding of each other. All Australians from all backgrounds need to get to know each other better. Making a stand against racial comments is only one step in the process.
The power of the law
This year has been an eventful one for matters of the law and racial vilification. As most of you would be aware, the Federal Government had proposed repealing section 18C of the Racial Discrimination Act. In March this year, it released a draft of new provisions, which would have removed the current protection against conduct that offends, insults, humiliates or intimidates on racial grounds. In its place, the law would have had a more narrow protection against the incitement of racial hatred and against physical intimidation. The changes proposed an extremely broad category of exception: anything conducted in the course of public discussion would be exempt from being found unlawful.
These would have represented significant changes to the law on racial vilification. It’s best to summarise them as two-fold.
First, the current law already provides a wide exemption under section 18D for anything that is artistic expression, scientific or academic inquiry, and fair comment and reporting of matters of public interest. The current law does, however, require someone to have acted reasonably and in good faith to enjoy the exemption. What the Federal Government had proposed would have removed any such requirements.
Second, the proposals for change also would have shifted the focus of the law. In its current form, the law recognises that racial abuse causes harm to its targets, harm that isn’t confined to the physical. The proposed law would have focused instead on those circumstances where a third party would be incited to racial hatred. In other words, shifting the law’s attention from the harm caused to a target of racial abuse to the effects it would have on a public audience. And in proposing only that intimidation would cover those instances where people apprehend physical harm, the law would also have ignored the non-physical forms of racial intimidation that can occur through abuse or harassment.
The proposed changes would have weakened the legal protections against racial vilification, and for no good reason. The laws in their current form have stood for almost two decades, and were introduced as a response to the recommendations of a number of major inquiries and reports. They have worked as they were intended to work, as civil and educative provisions against acts of racial vilification in public places.
In my view, changing the law would have had the very dangerous effect of emboldening people to believe that they have the right to be a bigot – it would have given people license to racially abuse others yet claim the almost total defense of free speech. In August, the Federal Government took the welcome step of abandoning its proposal to change the Racial Discrimination Act. There had been widespread opposition to the changes, expressed by a range of Indigenous and multicultural communities, human rights groups and the legal profession, public health professionals and psychologists. One Fairfax poll in April showed that 88 per cent of those surveyed believed that it should remain unlawful to offend, insult or humiliate others on racial grounds.
The debate about the Racial Discrimination Act revealed a number of things. It has demonstrated that the vast majority of Australians believe it is only right that we have effective laws against racial vilification. The reason is simple. Our laws should reflect our values. The law should broadcast our commitment to civility and tolerance.
As others remarked, had a repeal gone through, Australians would have been left with a disturbing anomaly. People would have enjoyed protections against racial vilification on the sporting field, but not when walking in the street or at the shops. What kind of society would that be? Where people have only the protection of voluntary codes in sport but not the protection of the law against racial vilification?
It’s on this note that I will conclude my remarks. The experience of sport in Australia in responding to racial vilification is instructive of how we should regard the relationship between the law and civil society. Just about every sporting code of conduct or member protection policy in Australia, at least those that I have seen, has provisions about racial vilification. These have existed alongside the federal legislative provisions, with many sporting codes drawing upon using the language of section 18C.
In the debate about the Racial Discrimination Act this year, so-called libertarians have said the law needn’t play any role in combating racial discrimination – that we should let civil society respond to racism in its own way. Let social sanctions do their work. If there is racist speech in public, let that be met with speech that repudiates racism. If there is someone who engages in racial discrimination in their business, let the market respond in its own way.
All this assumes that we must make a choice: that we can only fight racism with either the law or civil society. As I hope you will agree, this is the wrong assumption to make. Wrong, because we should ideally fight racism with both. We should remember that it can become a lot harder to exercise ‘social sanctions’ when the law isn’t on your side. When people make private complaints about racism, having the implicit support of the law can be decisive in securing a response. And when organisations adopt voluntary codes about racial vilification, they appear to frequently turn to the law for guidance. In short, we cannot conveniently separate the law from civil society. I would even venture to suggest that civil society is much stronger for having laws that clearly broadcast society’s values.
 J Carroll, ‘Sport’s Sacred Sites’ (Transcript, Sports Factor, 14 September 2001). At http://www.abc.net.au/radionational/programs/sportsfactor/sports-sacred-sites/3494070#transcript (viewed 21 October 2014).
 J Carroll, ‘Sport’s Sacred Sites’ (Transcript, Sports Factor, 14 September 2001). At http://www.abc.net.au/radionational/programs/sportsfactor/sports-sacred-sites/3494070#transcript (viewed 21 October 2014).
 J Niall, ‘Why some fans are challenged by Goodes’, The Age, 21 May 2014. At http://www.theage.com.au/afl/afl-news/why-some-fans-are-challenged-by-goodes-20140521-zrkd7.html (viewed 21 October 2014).
 C.L.R. James, Beyond a Boundary (1963).
 At http://itstopswithme.humanrights.gov.au/ (viewed 20 October 2014).
 Cited in P Oliver, What’s the Score?, Australian Human Rights Commission (2007), p 38.
 Cricket Australia Racial and Religious Vilification Code; P Oliver, What’s the Score?, Australian Human Rights Commission (2007), p 80.
 NRL, ‘Member Protection Policy’ (As at November 2013) 6.8. At https://www.nrl.com/portals/nrl/RadEditor/Documents/NRL_Member_Protection_Policy_%20Final.pdf (viewed 20 October 2014).
 Racial Discrimination Act 1975 (Cth) s 18C.
 ‘Widders looks forward’ story by Dean Widders for the Voices of Australia CD cited in P Oliver, What’s the Score?, Australian Human Rights Commission (2007), p 139.
 Exposure Draft of the Freedom of Speech (Repeal of s18C) Bill 2014 (Cth) para 4.
 T Soutphommasane In defence of racial tolerance (Speech delivered at the Australia Asia Education Engagement Symposium, Melbourne, 1 April 2014). At https://www.humanrights.gov.au/news/speeches/defence-racial-tolerance (viewed 20 October 2014); T Soutphommasane Racism is a moral issue (Speech delivered at the Society of Australasian Social Psychologists Conference, Canberra,11 April 2014). At https://www.humanrights.gov.au/news/speeches/racism-moral-issue (viewed 20 October 2014).
 Human Rights Law Centre, ‘Australia must retain strong and effective protections against Racial Vilification’ (Open Letter, 10 December 2013). At http://www.hrlc.org.au/wp-content/uploads/2013/12/Open-Letter-Racial-Vilification-Protections.pdf (viewed 21 October 2014).
 Reported in ‘Race hate: voters tell Brandis to back off’, Sydney Morning Herald, 13 April 2014. At http://www.smh.com.au/federal-politics/political-news/race-hate-voters-t... (viewed 20 October 2014).
 T Soutphommasane, ‘In bowing to public opinion, PM shows good leadership’, The Age, 7 August 2014. At http://www.theage.com.au/comment/in-bowing-to-public-opinion-pm-shows-good-leadership-20140806-100zqo.html (viewed 20 October 2014).