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Legislative innovation and the Racial Discrimination Act

Race Discrimination

Plenary address to National Institute of Administrative Law Annual Conference, University of Western Australia, Perth

Having a background as a political philosopher, I am usually inclined to begin at first principles. Thinking about your conference theme, “Innovations in Administrative Law and Decision-Making”, my first response was to ask a number of questions: What is an innovation? Does creation reside in the idea or in the action? And does the essence of innovation lie in rupture or refinement?

About ten years ago, the American scholar David Galenson wrote a book titled Old Masters and Young Geniuses.[1] It was a book about the different forms of innovation. While his concern was primarily creativity of the artistic sort, Galenson’s theory is pertinent to any consideration of the matter in general.

According to Galenson, there are two types of artistic innovation. There are the conceptualists, who make radical innovations in their field at a very early age – the young geniuses of art. F. Scott Fitzgerald, Pablo Picasso, Orson Welles: these are all examples of artistic geniuses who announced themselves with ground-breaking works done in their twenties. Then there are the experimentalists. These are the artists, who innovate only over a long period of time, and through constant experimentation – the old masters. Think here of your Alfred Hitchcocks or your Paul Cezannes, the artists who made their best contributions as mature practitioners of their craft.

How might this typology apply to Australian administrative law? I must confess I am not well qualified to speculate on such matters, at least not with any great profundity. Because if we look hard enough, I am sure that we would find innovations in the field can assume both technical and conceptual form.

This is true of administrative innovations in the area of race. While we are naturally inclined to think positively of innovations – to innovate is, after all, to create, to renew, to improve – Australian innovations on racial matters haven’t always been positive.

We are all familiar, of course, with the administrative novelty that supported the White Australia policy. The infamous dictation test, applied to exclude non-white or non-European immigrants, was nothing if not an instrument of bureaucratic innovation.

As historian Gwenda Tavan has described it, the complex bureaucratic ethos of the early twentieth century – an application of British traditions of public administration to local conditions – was central to the establishment and maintenance of the White Australia policy. Tavan explains that, being “accustomed to accepting the authoritative role of the bureaucracy in public life, and entrusting many social and economic responsibilities to its care, Australians generally did not concern themselves with the administration of immigration policy”.[2] At the same time, the acceptance of bureaucracy also meant there was a firm belief that government officials could administer the White Australia policy in a manner that was both just and efficient.

The past four decades of Australian history have seen a very different kind of innovation play out. One far removed from White Australia, and one that has been both conceptual and technical in nature. I refer here to Australia’s multicultural experience: to how Australian government and society has moved to endorse and recognise ethnic and racial diversity.

Today, I would like to offer some remarks on the legislative expression of Australian multiculturalism: the Racial Discrimination Act 1975 (Cth) (RDA). There has been intense public debate during the past year about the Act and its provisions concerning racial hatred. I will come to my views on this shortly, but before I do I would like to say something about the Act’s history and about how it operates. These are matters that are not always well understood but it is important to have a clear picture about the state of the law – certainly before we reflect on whether the law needs changing.

The Racial Discrimination Act: legislative innovation

It is a truism, in one sense, to say that a piece of legislation involves an administrative innovation. But the enactment of the RDA in 1975 has special claim to this description. The RDA was the first anti-discrimination and human rights legislation passed by the Commonwealth Parliament. It addressed a major gap in Australian law. Prior to the RDA’s passage, there were few effective remedies against discrimination based on race.

And the impact of the RDA has been significant. In the time that has elapsed since 1975, all states and territories have enacted anti-discrimination legislation. The Commonwealth parliament has also enacted legislation concerning sex discrimination, disability discrimination and age discrimination. It was through a number of High Court cases involving the RDA that it has been established that domestic laws could be considered constitutionally valid under the external affairs power.

The background behind the RDA reflects as well this connection between domestic and international. The RDA embodies Australia’s commitment as a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Adopted by the international community in 1966, CERD reflected the heightened global concern about racial discrimination and its consequences. The Holocaust, the advent of apartheid in South Africa, the emergence of the civil rights movement in the United States – these all gave irresistible impetus to the recognition of racial equality. Speaking in favour of CERD’s adoption in 1965, the then President of the UN General Assembly Amintore Fanfani would say that, “the fight against racial discrimination ... one of the most urgent and crucial problems that have arisen in the matter of protecting fundamental human rights”.[3]

There was also a local urgency to the RDA, though it would take almost a decade between Australia’s signature to CERD and domestic legislation. The 1970s saw the formal demise of the White Australia policy, and the transition to a multicultural Australian society. Mass immigration meant it was no longer tenable to expect that newcomers could be assimilated into an Australian way of life, at least one defined by ethnic and racial homogeneity.

The RDA was the legislative expression of Australia’s new commitment to a multicultural nation. The idea here was that society would be one “in which all components can enjoy freedom to make their own distinctive contribution to the family of the nation”. That all citizens, regardless of their background, would always be proud to declare, perhaps with different accents, “I am an Australian”.[4]

The content of the RDA, in its original enactment, was broad. It included prohibitions on racial discrimination in a number of defined fields: access to places and facilities; land, housing and accommodation; provision of goods and services; right to join trade unions; employment; and advertising.[5] There was in addition a general provision outlawing racial discrimination.

Under Section 9 of the Act, it is unlawful to “do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”.[6] Commentators have variously described this as “the most important and the most interesting” provision in Commonwealth human rights legislation, and even as arguably creating a limited legislative bill of rights.[7]

There have since been a number of additions to the RDA. Among them was the amendment in 1990 of Section 9 to include a definition of indirect discrimination. In 1995, the Act was also amended to include a new Part IIA, which prohibits offensive behaviour based on racial hatred. Part IIA was introduced following a number of major reports recommending the introduction of new legal protections against racial abuse and harassment. This included the Royal Commission into Aboriginal Deaths in Custody, the National Inquiry into Racist Violence and the Australian Law Reform Commission’s report on multiculturalism and the law.[8]

The main content of Part IIA concerns two provisions. Section 18C makes it unlawful to do an act in public that is reasonably likely to offend, insult, humiliate or intimidate someone on the grounds of race, ethnicity or national origin. Section 18D outlines a number of exemptions. Anything done in the form of artistic work, academic or scientific inquiry, or fair reporting or comment on a matter of public interest is exempt from Section 18C – provided it is done reasonably and in good faith.

Before I come to the various aspects of the current debate about Part IIA, I would like to say a little about what the introduction of Part IIA has added to the RDA. What is interesting about the language of Part IIA is that it is not, strictly speaking, concerned with racial hatred. Rather, Part IIA takes in conduct of a category that is about racial vilification. If we follow the ordinary meaning of the word, to “vilify” someone involves doing something that degrades or denigrates another person. The conduct captured by Part IIA – anything that racially offends, insults, humiliates or intimidates – is clearly of the category we would consider racial vilification.

In the case of Toben v Jones, there was some contention about whether the enactment of Part IIA was a valid exercise of constitutional power and consistent with Australia’s obligations under CERD. As one of his grounds of appeal, Toben contended that Part IIA’s attention to conduct that offended, insulted, intimidated or humiliated on racial grounds was unconstitutional.[9]

The argument here concerned the purpose of Part IIA in implementing Article 4 of CERD. Article 4 deals with two matters: (1) the incitement to racial hatred, discrimination or violence; and (2) the dissemination of ideas based on racial superiority or racial hatred. According to Toben, it is the latter that constituted the “touchstone of the offence contemplated by the Convention”. His contention was that if Section 18C was not “read down” to encompass only acts done because of racial hatred, then section 18C was beyond the constitutional power of the Commonwealth.

Toben’s appeal was dismissed unanimously by the Full Federal Court, which held that the provisions of Part IIA are constitutionally valid as an exercise of the external affairs power. As Justice Carr held, “it is entirely consistent with the provisions of the Convention ... that a State Party should legislate to ‘nip in the bud’ the doing of offensive, insulting, humiliating or intimidating public acts which are done because of race, colour or national or ethnic origin before such acts can grow into incitement or promotion of racial hatred or discrimination”.[10] Justice Kiefel concurred that “it is not necessary to read into [Section] 18C a requirement that the act in question be done because of racial hatred to reach that conclusion”.[11]

In other words, Part IIA of the RDA represented an important statement of legislative intention on matters of combating racial discrimination. When it concerns racial hatred, the law under Part IIA is a prophylactic. As Justice Carr notes, in directing its attention to offensive, insulting, humiliating or intimidating acts of racial vilification, Part IIA is about nipping racial hatred in the bud.

Conciliation and the case law

There are two parts to understanding the practical operation of the law: the conciliation of complaints and the courts’ interpretation of Part IIA.

Conciliation

Conciliation represents a frequently ignored aspect of the RDA’s operation. Yet it is in many respects the dominant part of the story. One cannot, in the first instance, sue someone for racial discrimination. When someone believes there has been a contravention of the RDA, they can make a complaint to the Australian Human Rights Commission, which will investigate and then attempt to conciliate the matter between the complainant and respondent parties. Contrary to some of the commentary about the RDA, the Commission does not sit as a “tribunal” or “court” in a matter. The Commission’s role is confined to conciliation. And it is only when conciliation fails to resolve a complaint, that a complainant is free to pursue the matter in the Federal Court or the Federal Circuit Court.

There are certain advantages in having conciliation as the default mechanism. It allows for a complaint handling process that is accessible and inexpensive – all conciliation at the Commission occurs at no cost to parties. Conciliation is a process that is private and flexible: those who discriminate on racial grounds may be more willing to cooperate and may avoid the public opprobrium that accompanies a formal finding. Conciliation also ensures the complainant has a significant degree of control over their matter: it can be a process of individual empowerment, enabling the perspectives of those who experience discrimination to be heard by those who perpetrate it.[12]

Admittedly, some scholars have highlighted the potential limitations of conciliation. The confidentiality of conciliation and settlement – what may be considered a strength in some cases – may be a deficiency in others. According to Margaret Thornton, “the confidentiality of conciliation indubitably thwarts the aim of deterrence”.[13] Unlike proceedings in an open court room, the results of conciliation cannot be seen; they do not carry the weight of binding precedent, and without publicity may not generate the public norms required for social change.

Whatever the balance of merits of conciliation, here is how the mechanism has operated under the RDA.

In the 2012-13 financial year the Commission received 500 complaints under the RDA (up from 477 the previous year). During that financial year, where conciliation was attempted, the Commission successfully resolved 61 per cent of complaints. Only a very small percentage of complaints reach the courts.

In terms of Part IIA, over the last five years, the Commission received an average of 130 complaints per year alleging a breach of Section 18C. This number was higher in 2012-13, with the Commission receiving 192 complaints under Section 18C. Of these complaints in 2012-13, 53 per cent were resolved at conciliation, 19 per cent were withdrawn and 23 per cent were terminated by the Commission. Less than 3 per cent proceeded to court.[14]

What such figures demonstrate is this. The RDA’s provisions, including those of Part IIA, are working as they were intended to work – to provide an accessible and inexpensive means of resolving complaints without recourse to the courts. The relatively low number of complaints received by the Commission also suggests that Section 18C has been invoked by the Australian public in moderation, and not vexatiously.

To give you a further sense of how conciliation concerning Part IIA has worked in practice, let me give you some examples of complaints resolved by the Commission. I should note that I am going to use the language from the actual complaints, which may be confronting.

In one matter, an Aboriginal complainant claimed that his supervisor at the respondent government department had made racially derogatory comments in the workplace. There was a reference in the workplace to ‘putrid Abos’. The respondent department agreed to provide the complainant with an apology in this case, after conciliation, and to require the individual responsible for these remarks to undertake aboriginal cultural awareness training.

Another matter involved a complainant of Indian origin who was employed with the respondent company as a sales person. The complainant alleged that one of his managers said, “Hey, you black man, clean my shoes”. The complainant also alleged that another manager changed the screen saver on his computer to show pictures of slums of India, laughed at these pictures, and said that the complainants race was, quote, “f***ed”. The complainant said that when he made an internal complaint, he was subsequently forced to resign from his job. In this case, the complaint was resolved with an agreement that the respondent provide the complainant with a statement of regret, a statement of service, and $5,000 compensation.

Finally, a third matter. The complainant of Asian background claimed that a website was advocating violence against Asians. The comments on the website included suggestions that people should yell at Asians, “You Gook. F*** off to China”, and “do whatever they can to show Asians that they are not welcome in Australia” (including “expressing their anger physically by laying the Gooks out”). After this complaint was brought to the Commission, the Commission contacted the internet service provider to establish the identity of the website owner. The ISP disabled the website.

The case law

Let me turn now to the case law. There has, of course, been much public commentary about the RDA and the case of Eatock v Bolt.[15] If you were to read or listen to some of this commentary, you would be forgiven for thinking that Eatock v Bolt is one of the very few cases concerning the legislation that has been decided. There is in fact a substantial body of case law concerning the RDA. There are about 100 judgments and determinations about Part IIA. The law has been well settled.

Not surprisingly, the poor understanding of the RDA extends to the detail of how Section 18C works under the law. Namely, it has been frequently asserted that Section 18C embodies a subjective test of hurt feelings. The suggestion has been that the law sets the bar too low in providing a legal protection against anything that may merely offend or insult another person’s tastes or sensibilities.

Let’s be clear about what the legislation says. The words of the Act say that something is unlawful if it is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate” another person or group of persons on the grounds of race. There is, in other words, a requirement of demonstrating that something is “reasonably likely, in all the circumstances” to cause the requisite harm. It isn’t enough that someone says they have been offended, insulted, humiliated or intimidated.

As it has been interpreted by the courts, Section 18C has involved an objective test. Justice Drummond made this very clear in the early case of Hagan: “whether an act contravenes the section is not governed by the impact the act is subjectively perceived to have by a complainant”.[16] Justice Hely in Jones v Scully also stated that the court must make “an objective assessment”.[17] Any evidence that a member of a particular racial group was offended, while admissible, is not determinative of the issue of contravention.

This is different from a subjective test. Such a test would imply that an unlawful act has been committed when someone merely claims that they have been offended or insulted. If that were the case, it would indeed set the bar far too low.

But this is definitively not the case. Not a single judgment has said the test is subjective. Judgments concerning Section 18C have consistently and explicitly applied an objective test, frequently citing the second reading speech of the Racial Hatred Bill 1994 by the then Attorney-General: “The Bill requires an objective test to be applied ... so that community standards to behaviour rather than the subjective views of the complainant are taken into account.”[18]

And when it concerns the level of harm that is covered by Section 18C, the case law has also been emphatically clear. The courts have consistently followed Justice Kiefel’s test in Creek: the conduct in question must cause “profound and serious effects, not to be likened to mere slights”.[19] That is to say, hurt feelings are not enough to mean that Section 18C has been contravened.

Finally, in understanding the case law, it is also important to look at cases where Section 18D has prevailed as an exemption – this section being the oft-forgotten aspect of Part IIA. The interpretation of Section 18D is another reason for dismissing the view that Section 18C has a deeply chilling effect on free speech. If anything, the courts have interpreted the law in a way that has applied Section 18D’s exemptions in terms, which have protected as free speech a wide range of conduct.

Consider, for example, the case of Kelly-Country v Beers from 2004.[20] This involved a comedian performing under the name of King Billy Coke-Bottle. In this guise, the performer (who was not Aboriginal) purported to be an Aboriginal person and performed a comedy monologue. An Aboriginal complainant alleged that this performance portrayed Aboriginal persons as rude, stupid, dirty, drunk and unable to pronounce longer words.

The court found that the performances of King Billy Coke-Bottle were exempt from Section 18C. They were exempt, the court held, because they came about as a result of the respondent’s imagination. Despite the complaints about the performances being racially offensive, insulting and humiliating, they were to be considered an artistic work, protected under Section 18D.

There’s also the case of Walsh v Hanson from 2000.[21] The complainant alleged that the contents of a book by Pauline Hanson and her One Nation Party contravened Section 18C. The book included opinions that Aboriginal communities were being unfairly favoured by governments and the courts.

In this case, the court found that these opinions were not made because of race or colour. The court also stated that Section 18D would have provided an exemption because the views expressed in the book were genuinely held and formed part of a genuine political debate. The statements were put forward reasonably and in good faith, and there was a public interest at play – namely, political debate concerning the fairness of distribution of social welfare payments in the Australian community. The offensive speech was exempt from Section 18C.

We can see from such cases that the protection afforded by Section 18D is broad. To those who want to see Section 18C repealed, we are entitled to ask: What is it that you want to say that isn’t currently protected by Section 18D?

Exposure draft of proposed amendments

Let me say a little in more detail now about the Federal Government’s proposed amendments to the RDA. Earlier in March, the Attorney-General released an exposure draft for public consultation. According to media reports, more than 5600 submissions were received (though none have yet been made public by the Attorney-General’s Department). There has, as you will know, been widespread public concern expressed about the proposed changes. Recent media reports have indicated that the Federal Government may consider returning to its flagged reform later this year.

I do not support the proposals to amend the Racial Discrimination Act. Put very simply, there is no good reason for changing laws that have been in place for close to 20 years, and which have worked well to provide legal remedies for racial vilification. The case for change has not been made out. Certainly, there has been no systemic inquiry that has established the need for legal reform in this area.

The main proposed changes would involve a repeal of Section 18C. Namely, the proposed amendment would make unlawful anything that is reasonably likely to “vilify” or “intimidate” on the grounds of race. Whether an act is reasonably likely to vilify or intimidate is “to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community”.

The exposure draft also contains a wide category of exception replacing the current Section 18D. This category would cover anything that is communicated “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”.

These changes would constitute a radical departure. “Vilify'' is defined as the incitement of racial hatred, rather than in terms of its ordinary meaning (speech that degrades or denigrates). The law would no longer be concerned with the harm that racist behaviour inflicts on its target, no matter how severe the vilification.

The consideration would instead turn to the effect of the behaviour on a third party or public audience – that is, whether it could incite feelings of racial hatred. Such an incitement test has proven extremely difficult to satisfy under existing State racial vilification laws. Under the proposed law, one could be abused by co-workers, customers or strangers in public as a “filthy coon”, “stupid boong”, “slit-eyed gook”, “shifty Jew”, “sand-nigger” or “Arab terrorist”. But unless such abuse is capable of inciting a third party, the target would have no avenue for seeking redress through the RDA.

The definition of “intimidate”, meanwhile, is confined to situations where someone apprehends physical harm. This is again concerning, for it fails to capture the harms that are caused by racial vilification. There has been for some time now a considerable body of research that has highlighted the adverse physiological effects of racism. The psychological harms of racism are also well-documented: victims can feel not only anger, but also humiliation and self-loathing. No matter how much victims of racial abuse may resist, they can often end up absorbing messages of hate and inferiority.

The introduction of a test based on an “ordinary reasonable member of the Australian community” would be another significant departure from the status quo. As the courts have interpreted the current law, determining whether something is reasonably likely to offend, insult, humiliate or intimidate on the basis of race must involve some consideration of the impact on the particular group of the community that has been maligned.

But under the proposed changes, the reaction of the target of racial vilification would not be considered. There are a number of questions worth posing about the ordinary reasonable member test. Who exactly is this person? What kind of cultural background does this person have? Is this person someone who embraces cultural diversity, or someone who is skeptical of it? Does this person have prejudicial thoughts about some or all ethnic minority groups? Professor Simon Rice of the Australian National University, a leading authority on anti-discrimination law, has described this new proposed test as “a double whammy to a victim of vilifying conduct”, as it involves a “blithe assertion of a dominant cultural perspective”.[22]

The most disturbing deficiency of the exposure draft, however, concerns its remarkably broad category of exception. This exception covers anything that is done in the course of participating in public discussion. But the draft changes remove the current requirements in Section 18D for protected speech to be conducted with reasonableness and good faith. The proposed exception is so wide it is hard to imagine what, if any, conduct the law would prohibit.

The effects of having such an exception would likely be profound. For example, under the proposed law, a case such as that involving Frederick Toben, who published on his website material denying that the Holocaust had ever occurred, together with derogatory generalizations about Jewish people as a group, could enjoy the exception outlined for participation in “public discussion”. It would be immaterial that Toben could not demonstrate that he acted reasonably or in good faith (as the Full Federal Court found, in light of his proven lack of bona fides and deliberately inflammatory language).[23]

Or consider the circumstances in Clarke v Nationwide News.[24] In that case, commenters on the perthnow.com.au website were found to have racially vilified Aboriginal people. Such commenters could claim under the proposed new law that they were making comments in the course of participating in a public discussion – namely, about whether the people of Perth were “fed up of” the crime, drunkenness and bad behaviour of Aboriginal Australians, and whether or not Aboriginal Australians could behave themselves at their children's funerals.

Such examples raise serious questions. One potential danger with the exposure draft is that its enactment may have the effect of exacerbating racist speech, particularly online, which may be defended in the guise of “public discussion”. Were this to happen, there may be especially destructive consequences on children and young people. Children and young people may end up being exposed to a higher level of racial hate speech on the internet. Recent experience warns us against any complacency. Last financial year, the Australian Human Rights Commission received a 59 per cent increase in racial hatred complaints under section 18C – an increase largely driven by cyber-racism on social media and video-sharing websites.[25] The prospect of a change in the law intensifying racial discrimination is well within the bounds of possibility.

Indeed, the effect of the proposed changes to the RDA would be to permit a wide range of behaviour that has the effect of offending, insulting or humiliating another person or group of people on the grounds of race. If the proposed changes were enacted, they may also protect a wide range of behaviour that may incite racial hatred or intimidate others, given they remove the requirements for protected free speech to be reasonable or to be conducted in good faith. As long as something is done in the course of participating in public discussion, one could use racial epithets or be acting in bad faith, but invoke the protection of free speech and enjoy an exception.

In short, the legislative world envisaged by the exposure draft contemplates no distinction between venting racial hostility and conducting legitimate public debate about ideas. Yet it remains far from clear how the use of racial epithets or slurs contributes to the ends of public debate that free speech in a liberal democracy should serve.

The law and civil society

The debate about the RDA has demonstrated one thing. Many believe that the proposed changes would send an unedifying and dangerous signal to society. Multicultural and Aboriginal and Torres Strait Islander communities, legal and human rights experts, psychologists and public health professionals, and the community at large have been united in their support for current laws against racial vilification. One Fairfax-Nielsen poll in April found that 88 per cent of respondents believed it should remain unlawful to offend, insult or humiliate someone on the grounds of race.[26] Another recent survey conducted by academics at the University of Western Sydney found that nearly 80 per cent of Australians supported existing legal protections against racial vilification.[27]

At a time when some have championed a right to bigotry, such support for the current laws affirms Australian society's deep commitment to racial tolerance. It affirms that Australians not only value living in a society that condemns racism, but that they believe it is right that our laws reflect our values.

The law should have a role in saying something about racial abuse that violates another person’s dignity and freedom. The law regulates many aspects of our social life, after all. On the matter of free speech, there are many laws that restrict our ability to say whatever we want without being accountable for its consequences. Trade practices laws, public order laws, laws on defamation – these all impinge upon the scope of what we can say.

If we can accept that we cannot deceive in advertising, if we accept that we can potentially be convicted under summary offence laws for using offensive language in public, if we accept that we may be liable for six-figure damages for offending another person’s reputation, why should we also not accept that we can hold someone to account for racial abuse? If we do affirm that racism is abhorrent, and that we should endorse actions designed to ameliorate behaviour, why should we not use the law to set civil standards of conduct?

In the case of racial vilification laws, they have, during the almost two decades they have been in operation, done a number of things. They have influenced the “emotional climate of the public culture”. They have helped to set the tone for our multicultural society. They have provided all Australians with a legal means of holding others accountable for public acts of racial vilification. They have bolstered the assurance of security to which every member of a good society is entitled – the sense of confidence that everyone will be treated fairly and justly, that everyone can walk down the street without having to fear abuse or assault.

Even so, some of the libertarian proponents of Section 18C’s repeal suggest that we should favour civil society over the law in fighting racism. However abhorrent racial vilification may be, they say, it remains better to leave things to the marketplace of ideas. Let good speech override bad speech; let there be an open contest where we put our faith in the goodness of our fellow citizens. If one is to be subjected to hate speech, one should be free to exercise one’s own speech to counter it. Being exposed to the ugliness of hate speech may even have edifying effects: it ensures that all manner of bad doctrine or hatred can be disinfected by sunlight.

There is, I believe, a misleading simplicity about such arguments. It assumes that we can make a choice between the law and civil society – that we must fight racial discrimination with either legal means or social ones, but not through both.

More specifically, the libertarian argument has a number of deficiencies. First, it seems odd to be celebrating bad or ugly speech. To be sure, there may be some benefits to the impartial spectator. For the spectator who is fortunate enough to remain insulated from racial vilification and to live in a social world free of violence, there may well be a benefit in coming across an ugly incident of racism. This spectator may be shocked by what she saw. She may, for the first time, realise the confronting nature of racism. She may leave with a new appreciation of the harms that it causes. Who knows; maybe she may leave with a newfound sense of indignation about racism and become an advocate for racial tolerance.

Yet from the perspective of someone who is the target of racial abuse, there is little that is edifying about the experience. It is not clear how someone who has been subjected to racial abuse by someone in public should be grateful for being given the opportunity to improve their soul. It seems perverse to say that we must all tolerate hate, if not everyone has to bear the burden of tolerance in the same way.

And when it comes to fighting bad speech with good speech, power and privilege matter. “More speech” can be an easy thing to prescribe if one were an articulate and well-educated professional or someone accustomed to enjoying the privilege of social power. But the marketplace of ideas can be distorted. We cannot realistically expect that the speech of the strong can be countered by the speech of the weak.

It is interesting that in consultations that the Australian Human Rights Commissions has conducted on racism, respondents indicated that one impact of racism was precisely that it made them feel less free to speak. As one respondent said, “[r]acism makes me feel intimidated [and] curtails my freedom...”. Another said, “I cannot exercise my basic human rights in freedom of speech, opinions and expressions”. If such testimony is any indication, racism can have a profound effect in silencing its targets, and in debilitating their ability to enjoy freedom of expression.[28]

This is why it is unconvincing to say that leaving things open to more speech is all that's needed to fight racism. Not everyone is in a position of parity to speak back. In any case, it would be wrong to assume that racism can always be countered by a well-reasoned riposte, that those perpetrating racism can be persuaded to change their mind through reason – for the basic reason that racism is not always rational in the first place.

Conclusion

Let me conclude by returning to the theme of your conference, and the notion of innovation. The advent of Australian multiculturalism was a conceptual innovation; it represented a significant redefinition of nation-building. The Racial Discrimination Act was part of this, being the legislative expression of a multicultural Australia. Over time, the Act has also been refined. Such refining has included the addition of Part IIA – a legislative addition which has sought to nip racial hatred in the bud.

Yet, as I mentioned earlier, not all innovations are positive. The recent proposals for the repeal of Section 18C of the RDA serve no good or compelling purpose. Our law on racial vilification should remain exactly as it is. A society committed to racial tolerance should not be entertaining the idea that a right to be a bigot must outweigh a right to be free from bigotry’s effects.


[1] David W.Galenson, Old Masters and Young Geniuses: The Two Life Cycles of Artistic Creativity, Princeton University Press, (2007).
[2] Gwenda Tavan, The long, slow death of White Australia, Scribe Publications Pty Ltd,(2005), p23.
[3] Amintore Fanfani, President of the United Nations General Assembly, 21 December 1965.
[4] Al Grassby, A Multi-cultural Society for the Future, AGPS, Canberra, (1973), p15.
[5] Racial Discrimination Act 1975 (Cth).
[6] Racial Discrimination Act 1975 (Cth).
[7] See Zita Antonios The Racial Discrimination Act: A Review, (1995).
[8] Royal Commission into Aboriginal Deaths in Custody, National Report Volume 4 (1991) at http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol4/26.html
Human Rights and Equal Opportunity Commission, Report of National Inquiry into Racist Violence in Australia (1991) at http://www.humanrights.gov.au/publications/racist-violence-1991
Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) at http://www.austlii.edu.au/au/other/alrc/publications/reports/57/
[9] Jones v Toben [2002] FCA 1150 para 41.
[10] Toben v Jones [2003] FCAFC 137, Carr J, para 20.
[11] Toben v Jones [2003] FCAFC 137, Kiefel J, para 50.
[12] Zita Antonios The Racial Discrimination Act: A Review, December 1995, pp33,154. Tracey Raymond, Australian Human Rights Commission, Alternative Dispute Resolution as a tool for social change: A human rights perspective (undated).
[13] Zita Antonios The Racial Discrimination Act: A Review, December 1995, p85.
[14] Australian Human Rights Commission, Annual Report 2012-2013 p.132 at: https://www.humanrights.gov.au/publications/annual-report-2012-2013
[15] Eatock v Bolt [2011] FCA 1180.
[16] Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615, para 15.
[17] Jones v Scully [2002] FCA 1080, at para 99.
[18] The Hon. Michael Lavarch, Attorney-General, Second Reading Speech, Racial Hatred Bill 1994.
[19] Kiefel J in Creek v Cairns Post Pty Ltd [2001] FCA 1007 at para 16.
[20] Kelly-County v Beers [2004] FMCA 336.
[21] Walsh v Hanson, Unreported, Human Rights and Equal Opportunity Commission, Commissioner Nader, 2 March 2000.
[22] Rice, S. ‘Race act changes are what you get when you champion bigotry’ The Conversation, 26 March 2014, at http://theconversation.com/race-act-changes-are-what-you-get-when-you-c….
[23] Toben v Jones [2003] FCAFC 137.
[24] Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307.
[25] Australian Human Rights Commission, Annual Report 2012-2013 p.132 at: https://www.humanrights.gov.au/publications/annual-report-2012-2013
[26] 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-tell-brandis-to-back-off-20140413-zqubv.html
[27] University of Western, Sydney, Challenging Racism: The Anti-Racism, Research Project (2010).
[28] Survey respondents, National Anti-Racism Strategy consultation, Australian Human Rights Commission, 2011.

Dr Tim Soutphommasane, Race Discrimination Commissioner