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Hate and the regulation of speech

Race Discrimination

University of Sydney Festival of Democracy
26 September 2014


I am grateful for the invitation from Professor John Keane to speak today. In talking about religion, hate and democracy we need to remember that we are not dealing here just with conceptual debates, but about a matter that has real and direct implications on how people live their lives.

Leadership is fundamentally important to how we conceptualise these issues and how we deliberate. There is particular importance of bearing this in mind with respect to scholars. We cannot just regard leadership as a task for political representatives or for community leaders; scholars also need to be mindful of their responsibilities and what is at stake.

What is at stake today in the Australian context is profound. At the moment we have a divisive debate taking place about security, religion and terror. In the last week or so we have seen some of the following: a mosque being defaced in Brisbane; direct threats issued against the Grand Mufti of Australia and mosques in Sydney from anonymous members of the Australian Defence League; and reports across the country of women in hijabs being abused or threatened in streets, at shopping centres, while driving. Such acts of hate and intolerance have the capacity to undermine not only liberty but also our social cohesion and cultural harmony.

Human rights and freedom

Let me say a little about how we approach talking about these issues. We can talk about the regulation of speech, particularly on matters of hate and religion, in terms of liberty and equality. But we can also talk about them in other terms. It’s no accident that some have spoken of the present need to trade off the liberty of some, in order for the many to enjoy security.

Then we can speak of liberty being in conflict with liberty itself. That is to say, it is not simply the case that we are depriving, potentially through various aspects, the liberty of others. It may well be about depriving their liberty in other senses that we may not anticipate. It could be about freedom of movement; it could be about freedom of conscience; it could be about freedom from discrimination.

The perspective I come from is a human rights approach, which Professor Cherian George helpfully outlined in his earlier remarks. He is right to say there is a distinctive American approach to these issues, favouring freedom of expression. There is what Professor George called a traditional approach, which values notions of security and morality over expression. In Australia, we have an approach that is broadly in line with many other liberal democracies and European democracies. We regulate speech but we are deeply mindful of an interest in freedom of speech.

We have had in the past 12 months a vociferous debate about the meaning of freedoms in Australia today, particularly concerning the Racial Discrimination Act. Those who advocated for a repeal of the legislation’s provisions on racial vilification have argued that freedom of speech is paramount in our society.

This proposition does not sit very well with the human rights approach for one very simple reason: human rights are indivisible and they are interdependent in character. That is to say, there is no hierarchy when it concerns freedoms. You can’t simply assert one freedom and say that it is the most important one, because how we enjoy one freedom can often depend on how we enjoy other freedoms. For example, whether we can exercise freedom of conscience is purely academic if we do not enjoy security. Those sorts of nuances aren’t always reflected in our debate. Yet they are absolutely essential to ensuring that we get the right conversation.

The regulation of hate speech

At the federal level, the regulation of speech does not cover religion. Insofar as we are referring to hate speech laws in Australia, religion is not covered. There is only one place in Australia where it is: the state of Victoria. But under Commonwealth law, vilification is prohibited only with respect to the following attributes: race, colour, ethnicity and national origin. If you were to say something that offends or denigrates someone on religious grounds, there is nothing you can do under the Racial Discrimination Act.

This is different to the situation in many other countries that regulate hate speech. In the United Kingdom for example, close to a decade ago, the parliament in Westminster introduced the Racial and Religious Hatred Act which made it a criminal offence to cause religious offence alongside racial offence.

Section 18C is the relevant provision of the Racial Discrimination Act. It says: ‘anything that is reasonably likely in all the circumstances to offend insult humiliate or intimidate on the grounds of race is unlawful’. To clarify, it is not merely offending, insulting, humiliating or intimidating that is unlawful; it has to be done because of race or ethnicity or national origin.

The law has been interpreted by courts in a certain way. It’s not enough under Australian law for you to say that you have been offended insulted or humiliated on racial grounds. It needs to be tested against an objective measure: namely, it must involve an act that causes serious and profound effects.

The Racial Discrimination Act is not a criminal provision. You can’t prosecute someone for racially vilifying another person. Nor can you be convicted under the Racial Discrimination Act.  You can’t be thrown into jail; you can’t be subject to a conviction by a court under this Act.

Rather, unlawful activity may mean that someone can make a legal complaint. If someone believes that the law has been contravened, they can make a complaint to the Australian Human Rights Commission, which will attempt to conciliate the matter. We will try and bring in the two parties to talk through their differences. In the majority of cases, we generally get a successful resolution – often that involves an apology.

A civil and educative mechanism

So federal law on the matter of racial vilification is a civil and educative mechanism. It is about ensuring that someone can be held accountable for what they say – for the harm that they may cause.

Some will say that racial vilification may not be pleasant but that it shouldn’t be the subject of a law. We need to put up with it, if we are truly committed to freedom of speech. What our law reflects, however, is a recognition by the Parliament that acts of racial hatred may inflict harms on certain people.

There are three ways of understanding harm. One is the personal harm that can take place when someone is abused or harassed. There is a significant body of research done in particular with respect to Aboriginal and Torres Strait Islander people in Australia which demonstrates the links of being subjected to racial abuse on a regular basis and poorer health outcomes, whether that is physical health or mental health.

There are also social harms associated with racial vilification. When people are being abused or when society receives a green light to abuse that can undermine our social cohesion as a multicultural society. This is something we cannot dismiss for the very simple reason that we are a deeply diverse country. Almost half of our population was either born overseas or has a parent that was born overseas. The experience of vilification is something that can affect a great deal of people in our community.

The third kind of harm is the civic harm involved in hate speech. By civic harm, I mean that hate speech can offend the expectation and the entitlement that every member of our society should have to being treated equally. It can offend our sense of assurance that we can all go about our business and not have to apprehend that we will be subject to abuse, hatred or intimidation.

These kinds of harms go back to my earlier point about the different value conflicts implicated in the regulation of hate speech. As I said, there can be a conflict between liberty and equality, there can be a conflict between liberty and security and there can be a conflict between liberty and liberty itself as well.

If we are talking about the personal harm of vilification, we are talking about how someone expressing their freedom may have the effect of depriving another person of theirs. In terms of the harm to social cohesion, we have in play a conflict between liberty and security. And when we refer to civic harm, we are witnessing conflict between liberty and equality.

Free speech

Free speech is vital to a democracy, but free speech is not absolute. This is one point that isn’t always made apparent in our debate. There can be an assumption – maybe it’s got something to do with the connotation of the word free – that if you are to enjoy freedom of speech then it is something that is total. That is misguided. We have all sorts of restrictions on freedom of speech.

Let me give you some examples. If we were to look beyond race or religion, consider our Parliaments. Parliamentarians in Australia have to refrain from using offensive words or offensive language. There are standing orders in our House of Representatives, in our Senate, in all of our state legislative bodies which require our parliamentarians to withdraw if they were to use offensive words or language.

We have criminal laws in the majority of jurisdictions, which mean that you can be convicted if you were to use offensive language in a public place. Here in New South Wales last year, 12,000 people were convicted of breaching criminal summary offence provisions concerning offensive language. Merely using a profanity in public can be enough to see you convicted of such a provision.

Then we have other restrictions. Consider defamation law. There was a classic case a few years ago in Sydney, involving a new restaurant that had opened up on King Street Wharf, called Coco Roco.  A Fairfax media reviewer dined at Coco Roco and wrote that the chicken dish at Coco Roco was “outstandingly dull”, and that Coco Roco was a blight on the culinary landscape of Sydney. You may think that this is mild. For that, Fairfax was made to pay $600,000 damages for defamation.

So to those who would say that hate speech regulation in particular places unduly excessive restrictions on speech, I say this: if we can accept that politicians must refrain from using offensive language, if we accept that you can be convicted for using offensive language in a public place as a criminal offence, if we accept that you may be liable to pay out $600,000 for saying you didn’t like a chicken dish, then it is only right that people are also held accountable for those acts which involve racially abusing and vilifying another person in public.

Nonetheless, there is a debate about how we deal with hate speech. Some will say that the best way of dealing with hate speech or bad forms of speech is merely to respond with more speech: Let good speech overcome bad speech. Some will say that the worst possible thing we can do when it concerns bigotry and hate is to let these things fester in the dark. They will say, ‘let sunlight be the disinfectant’. Let us expose bigotry and hatred so that everyone can see and understand exactly what kind of obnoxious doctrines people may adhere to.

At one level, all of this may appeal to those of us who appreciate freedom and vigorous debate. There is, however, a question to be asked. Just who, exactly, believes that it’s good for us to expose racism in such ways? I have not yet met any person who has been subjected to racial abuse – someone who has been called ‘a nigger’, ‘a coon’, ‘a gook’, ‘a curry muncher’, ‘a towel head’ – who has said to me that they found that experience to be ultimately edifying because it exposed the bigotry of another person for all others to see.

This points to a real moral blind spot in the argument about free speech. And the blind spot goes to power and privilege.

It is one thing for someone to say that you can fight bad speech with good speech if you are in a position of power and privilege. If you come from a background where you are used to getting your voice heard, where you are used to getting your way, then it can seem like an easy thing to think that others can just stand up and speak out. But if we remember that we are dealing here not with a hypothetical proposition, we can quickly grasp that one of the effects of being exposed to hate speech is precisely that it can take away your ability to speak out. This is what we are told from those who experience racism. They say, ‘it makes me less likely to speak up’; ‘it can silence me’; ‘it can intimidate me’; ‘it inhibits me’.


I conclude with some thoughts about democracy and the importance of how we deliberate questions of hate, speech and religion. There is considerable community anxiety about the threat of terror. Some may be more concerned than others. But it is inescapable at the moment. We need to be as a society absolutely united in countering any terror threat. Nothing would give radical extremists more pleasure than to see Australian society be divided – whether that’s along racial lines or along religious lines.

If we are talking about leadership today, it is absolutely essential that hate and fear, suspicion and division do not prevail. There needs to be a certain calmness and responsibility. Multicultural Australia, since the advent of cultural diversity as we know it, has tended to be supported by responsible leadership - leadership that hasn’t made political mileage out of ethnic and racial and religious divisions.

There will be a temptation on the part of some to have a debate that may not necessarily reflect the temper and the ethos of our multicultural society. That temptation must be resisted. Because we’re not talking merely about something that’s academic, we are talking about something that has very real implications on how every person in our society and how they can enjoy their freedom and dignity.


Dr Tim Soutphommasane, Race Discrimination Commissioner