Skip to main content

Dignity and Vigilance

Race Race Discrimination

Executive Council of Australian Jewry, Annual General Meeting

President Danny Lamm
Deputy President John Searle
Vice Presidents
Members of the Executive Council

Introduction

Can I begin by acknowledging the traditional owners of the land, the Boonwurrung people, and pay my respects to their elders past and present.

I am honoured to be addressing you this afternoon. The Executive Council of Australian Jewry is an important voice in our national conversation. Whether it is in combating racial discrimination, or in cultivating dialogue among faiths, the Australian Jewish community has been at the forefront of Australian multiculturalism. Over the 69 years of its history the ECAJ has played in laying the foundations for racial harmony and tolerance.

I would like to take this opportunity to congratulate you, Danny, on your term as President of the ECAJ – Mazel Tov! The organization has gone from strength to strength under your presidency. I would also like to acknowledge the work of your Executive Director, Peter Wertheim. I have had the opportunity during the past two years to become friends with Peter through our membership of the Australian Multicultural Council. During that time, I have had many occasions to witness Peter’s tenacity and persuasiveness as an advocate. The Australian Jewish community is fortunate to have such a formidable champion. Peter, I look forward to continuing our work together in the years ahead. He is not here today, but I also would like to mention my good friend Jeremy Spinak, who has been trying his very best over the years to educate me in the intricacies of Likudnik politics. This is no reflection on the quality of his tutelage, but I confess that remains very much a work in progress.

I wish to address my remarks this afternoon to dignity and vigilance. We are, I believe, at a critical juncture in the development of Australian multiculturalism. At such times, it is important to reflect on what it is that the multicultural project is meant to protect – and to reflect on our responsibility as a national community to defend that achievement.

The multicultural project

In one sense, the triumph of a multicultural Australia would appear to be complete. Only a small minority would now believe that cultural diversity means social division. The vast majority of Australians endorse multiculturalism. Consider the recent Scanlon Foundation survey into social cohesion. That study, led by Professor Andrew Markus of Monash University, found that 84 per cent of respondents agreed that multiculturalism was a good thing.[1] It is a resounding finding, about as unanimous as one can get on a contemporary social question.

Such approval is reflected in the everyday life of Australian society. How could it not, when more than 45 per cent of Australians were either born overseas or have a parent who was born overseas?[2] How could it not when about 30 per cent of all couples in Australia comprise partners who are of different ancestries?[3]

And how could there not be approval when on the criteria of social cohesion and social mobility, Australian multiculturalism has proven to function remarkably well? When it concerns social cohesion, Australia has been untainted by the considerable tensions that characterise Europe – the segregated towns and cities, the regular race riots. When it comes to social mobility, Australia is one of the very few OECD countries where the children of immigrants, on average, outperform children of native-born Australians with respect to education and employment.[4]

Various reasons are put forward to explain just how it is that Australia has managed to embrace diversity – and do so with such grand success. Sometimes it is attributed to “the innate decency and tolerance of Australians”. Sometimes to “a kind of benign indifference in the national character”, which favours not making a fuss over expressing displeasure at things. Some historians suggest that our success reflects the deep civic memory of the social strategies that nineteenth-century Australians used to contain sectarian Protestant/Catholic divisions in the colonies.[5]

Yet, one thing is curious. Relatively little is said about the contribution that multiculturalism as public policy has made over the past four decades to ensuring that mass migration has been accompanied by social cohesion rather than fragmentation. That there can be so much applause for our record of postwar migration, yet relative silence about the very policy that has guided social integration since the 1970s, seems odd.

It may be tempting to say that this may reveal what political historian Robert Manne has called a “particular kind of brittleness in Australia” when it comes to diversity. According to Manne, “just beneath the surface”, it is as though “very little evidence is required to convince large swathes of the general public that one or another ethnic group will never fit it”.[6]

I suspect there is some truth in Professor Manne’s observation. Our multiculturalism contains a paradox: it is strong yet it is fragile. But there may be another explanation for why so much of our multicultural project is considered without the kind of attention to its policy dimensions one might otherwise expect.

Namely, success can create complacency; amnesia can accompany progress. In today’s multicultural Australia, where more than one generation has now grown up with diversity, many may well believe that cultural harmony occurs organically. Many may well presume that politics and policy play little or no role in cultivating the kinds of attitudes that characterize our open and peaceful society. Many may well forget that an Australia where the cultural expectation of migrants was assimilation – where it was believed that new arrivals had to discard all their cultural baggage – involves a very different society to an Australia that prides itself on its diversity.

The result, though, is this. Not enough of us recognize that the social reality of diversity has only been possible because diversity has also been endorsed through public policy. This is the real achievement of our multicultural project. It is nothing less than an Australia where people are allowed to value and express their cultural identity, without stigma. An Australia where everyone can participate in the life of the nation on an equal footing – as a fellow member, who needn’t feel apologetic about their name or where they are from.

Multiculturalism and the law

As you all know, there is at the moment considerable public interest about the racial vilification provisions of the Racial Discrimination Act. The Government has made clear that it intends to repeal or amend Part IIA of the Act. We have seen the beginnings of what is likely to be extensive public debate about the issue. This is how it should be. We are dealing with important questions about the proper balance that is to be struck between freedom of speech and freedom from racial vilification.

But to date, there has been much polemic – too much polemic. If you were to believe some of the commentary about the provisions of the Racial Discrimination Act, you may believe that the Act is an instrument of political correctness that serves to stifle free speech. That it goes too far in protecting people from being merely offended or insulted.

Any debate must be well informed and based on the facts. And protagonists of the debate must not ignore the history of the legislation in question.

The Racial Discrimination Act exists, of course, as the legislative expression of Australian multiculturalism. Enacted in 1975, this legislation embodies our society’s commitment to non-discrimination. It expresses our society’s commitment to the notion that everyone can enjoy rights and freedoms on an equal footing, regardless of their colour, ethnicity or national origin.

The Act is more than just an instrument for guaranteeing equal opportunity for all members of society, regardless of their race. Through the provisions of Part IIA, which were enacted in 1995, the Act also provides a statement about civility and tolerance.

Section 18C of the Act makes it unlawful to commit an act that is reasonably likely, in all the circumstances, to offend, insult, humilitate or intimidate another person or group of persons on the grounds of race, ethnicity or national origin. It is accompanied by Section 18D, which seeks to protect the fundamental importance of freedom of speech. Section 18D does this by ensuring that artistic works, scientific debate, and fair comment or reporting on a matter of public interest are exempt from being held in breach of Section 18C – provided that they are said or done reasonably and in good faith. It is one of the few legislative provisions in Australia that provides an explicit protection of freedom of speech.

The process of introducing these racial vilification provisions was neither hasty nor unconsidered. It came about as a result of rising concern about racism in Australian society during the late 1980s and early 1990s. It came about in response to a series of organised racist violence against ethnic communities, and serious complaints from Aboriginal and Torres Strait Islander peoples about systemic discrimination.

For example, the Royal Commission into Aboriginal Deaths in Custody, which made its final report in 1991, called for legislation to recognize that language can itself be a form of violence.[7] The National Inquiry into Racist Violence, concluded by my predecessor Irene Moss in 1991, similarly noted that “incitement to racial hostility is a significant element in creating a climate conducive to racist harassment, intimidation and violence”.[8] Echoing the recommendations of both the Royal Commission and the National Inquiry, the Law Reform Commission in 1992 published a report, “Multiculturalism and the Law”, which recommended the introduction of legislation to deal with racial hatred.[9]

It is perhaps a sign of social progress that the circumstances in which racial vilification laws were introduced can be so quickly forgotten. But we should be disabused of any notion that racism has disappeared – that any need for a legislative response to racial vilification is now gone.

In the past financial year, the Australian Human Rights Commission has received a 59 per cent increase in the number of complaints lodged on the grounds of racial hatred under Section 18C of the Racial Discrimination Act.[10] The Scanlon Foundation’s survey has also found a significant increase in the number of respondents who say they have experienced racial or religious discrimination during the past twelve months (19 per cent of respondents compared to 12 per cent in 2012).[11] And as the apparent anti-Semitic attack in Bondi only a few weeks ago should remind us, racial vilification today can still escalate to racial violence.

Let me say this. We would be foolish to ignore the lessons of history. We would be hasty to belittle the ongoing task of combating prejudice and intolerance. Racial violence doesn’t begin with violence: it begins with words; it breeds through indifference; and it explodes when it is given licence.

Freedom and dignity

If the history of our federal racial vilification laws is not well known, the manner in which they operate is also subject to considerable misunderstanding. Consider how media commentary about the Andrew Bolt case in 2011 referred to Mr Bolt being “convicted” or found “guilty” of a breach of the Racial Discrimination Act.[12] Not everyone understands that Part IIA involves only a civil provision and not a criminal one.

Nor does everyone understand that any complaint about a breach of the law under Section 18C leads not to a court case in the first instance, but in an attempt by the Australian Human Rights Commission to conciliate between the complainant and respondent parties. Only if conciliation fails, can the matter be referred to a federal court. This happens only rarely. For example, during 2012-13, the Commission successfully conciliated 53 per cent of its complaints concerning racial vilification; only 3 per cent of cases made it to court.[13] The law is working the way it was intended: for the most part, allowing those subjected to racial vilification to access civil remedies without lengthy and expensive litigation.

Nor does everyone understand that it is very difficult to contravene racial vilification provisions. As one lawyer with many years’ experience in anti-discrimination law has said to me, to be in breach, you really have to put your back into it. This is because the exemptions provided by Section 18D are broad in nature. Offensive cartoons have been found by the courts to be artistic work exempt from a breach of Section 18C.[14] So have statements made in the course of political debate about the fairness of distribution of social welfare payments to people from a particular race or ethnic group.[15] Publications that deal with the issue of racial identification, including challenging the genuineness of the identification of a group of people, may also be exempt from a breach of the law.[16] But the requirements are that any such acts be done reasonably and in good faith.

Finally, not everyone understands that racial vilification laws cover only public acts that involve “profound and serious effects”.[17] It isn’t enough merely to offend or insult someone, as some suggest: to fall foul of the law, one must offend, insult, humiliate or intimidate someone on the basis of race. The relevant test is an objective one, not a subjective one. And it is perhaps also worth noting that the courts have tended to regard the words “offend, insult, humiliate and intimidate” as a collocation, rather than severally.

This brings me to the purpose of racial vilification laws. As they currently exist in Australia, such laws seek to ensure that everyone in our society enjoys freedom from racial vilification as well as freedom of expression. In another respect, the law provides a statement about the civic or public harms caused by racial vilification. Covering only those acts that are done in public, they are not concerned with private purposes or with individual hurt as such. They are concerned, rather, with protecting the conditions necessary for justice in a multicultural society.

Australia is by no means alone as a society that has enacted legislation against racial vilification. The United Kingdom, Canada, New Zealand, Germany and Denmark, to name a few, also have laws aimed at curbing racist hate speech.[18] The formulations in these jurisdictions, of course, vary. In all cases, though, the rationale of laws against racial vilification is basically the same: the law in a liberal democratic society must make an assurance that members will enjoy a right to equal dignity.

Some may well say that dignity is too vague a concept. That sulky 19th century pessimist, Schopenhauer, once wrote that dignity is “the shibboleth of all perplexed and empty-headed moralists”.[19]

But all of us know enough to know what dignity is and when it is being denied to another. When racial vilification does occur, we know the effect that it has on a target’s self-worth. Those who say that victims of racist speech should simply develop a thicker skin – that confronting it will only make them stronger – are almost inevitably those who have never felt the sting of being treated like a second-class citizen. They do not understand the wound of being denigrated, not because of one’s character or merit, but because of the immutable qualities of one’s race, the markers of one’s ancestry.

The distinguished legal philosopher Jeremy Waldron explains dignity in the following way:

It is a matter of status – one’s status as a member of society in good standing – and it generates demands for recognition and for treatment that accords with that status. Philosophically, we may say that dignity is inherent in the human person – and so it is. But as a social and legal status, it has to be established, upheld, maintained, and vindicated by society and the law, and this ... is something in which we are all required to play a part. At the very least, we are required in our public dealings with one another to refrain from acting in a way that is calculated to undermine the dignity of other people.[20]

Clearly, dignity is not only about status. It is also about treatment: to treat someone with dignity is to treat that person with the proper respect.[21] When a society does enact laws against vilification based on race, it provides its members with an assurance: an assurance that everyone can be assume they will be treated fairly and justly. That they needn’t walk down the street with a lowered gaze, in fear of abuse or assault. That they have every right to enjoy the security and freedom that all others may enjoy. It provides an assurance that society will not accept those acts that besmirch the reputation of others and undermine their social standing.

Such a response counters the menacing threat contained in racist vilification. I am referring here to the message that is sent to targets of racist speech: that regardless of any formal equality, exclusion, indignity, degradation and indeed violence may just be around the corner if you don’t tread carefully or if you don’t know your place.

Conclusion

Let me conclude with some reflections on the need for vigilance, eternal vigilance. This is, as we all know, the price of liberty. The remarkable success of Australia’s experiment as an immigrant nation and multicultural society – nothing short of a social miracle – can always be undone by complacency. We can take our racial harmony and tolerance for granted.

Some would say, of course, that we should also not take for granted our freedom of speech. That this is one freedom we must not forget. We certainly should not take this freedom for granted. But it is fair to say that the Racial Discrimination Act recognises – through Section 18D – the fundamental importance of freedom of speech. If, as a society, we were to identify areas of the law that may seriously impinge on our freedom of speech, we may arguably be more troubled by the impact of the law of defamation, the law concerning trades practices, or even laws concerning public order (namely, summary offences that cover offensive language).[22] We are entitled to ask: why is such disproportionate attention being paid to a law that protects people from being vilified on the grounds of race?

To be sure, there will always be some who will argue that when it concerns racist speech, the best answer is to respond not through the law, but through the marketplace of ideas. Fight bad speech with good speech. Educate opinion rather than censure opinion.

I understand this view. The quality of a society is no doubt determined by the quality of its citizens. But this is no reason for believing that a good society, one that treats all its members with respect according with their human dignity, can be maintained without the law’s expressive power. The law, in making a statement about civility and tolerance, within reasonable limits, sends some powerful signals. On the matter of racism, let us be eternally vigilant about the signals we send as a society.


[1] A Markus, Mapping Social Cohesion 2013: The Scanlon Foundation Surveys National Report (2013), pp3, 34 & 38.
[2] ABS, 3416.0 - Perspectives on Migrants, 2009 (2009).
[3] Khoo, ‘Chapter 6: Intermarriage, Integration and Multiculturalism: A Demographic Perspective’ in M Clyne & J Jupp (eds), Multiculturalism and Integration: A Harmonious Relationship (2011).
[4] See T Soutphommasane, Don’t Go Back To Where You Came From (2012).
[5] See T Soutphommasane, “The Return of Multiculturalism” in G Tavan (ed), State of the Nation (2013).
[6] R Manne, Making Trouble: Essays Against the New Australian Complacency (2011).
[7] Royal Commission into Aboriginal Deaths in Custody, National Report Volume 4 (1991), ch 28.3 para 28.3.34. At http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol4/26.html (viewed 21 November 2013).
[8] Human Rights and Equal Opportunity Commission, Report of National Inquiry into Racist Violence in Australia (1991), p 269. At http://www.humanrights.gov.au/publications/racist-violence-1991 (viewed 20 November 2013).
[9] Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992), p 133. At http://www.austlii.edu.au/au/other/alrc/publications/reports/57/ (viewed 21 November 2013).
[10] Australian Human Rights Commission, Annual Report 2012-2013 (2013), pp 124-125, 132-134.
[11] A Markus, above n1, pp 2 & 18.
[12] “Bolt found guilty of race discrimination” 28 September 2011, The Canberra Times; C Kenny, “Government blinded by antipathy towards Bolt” 31 January 2013, The Australian.
[13] Review of Australian Human Rights Commission complaints data (unpublished).
[14] See Bropho v HREOC (2004) 135 FCR [105].
[15]Walsh v Hanson, Unreported, Human Rights and Equal Opportunity Commission, Commissioner Nader, 2 March 2000.
[16]Eatock v Bolt [2011] FCA 1103.
[17] Kiefel J in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, cited with approval in Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105.
[18] J Waldron, The Harm in Hate Speech (2012), p 8.
[19] Cited in M Rosen Dignity: Its History and Meaning (2012), p 1.
[20] J Waldron, above n18, p 60.
[21] M Rosen, above n19, p 61.
[22] For discussion on the countervailing rights and interests yielded by freedom of expression, including defamation, see D Rolph, “Towards an Australian Law of Privacy: The Arguments For and Against” Communications Law Bulletin, 31(4).

Dr Tim Soutphommasane, Race Discrimination Commissioner