Skip to main content

Racism and the fourth estate

Race Race Discrimination

Office of Multicultural Interests
- Western Australia

Racism and the fourth estate:
free speech at what cost?

A seminar by Dr William Jonas
AM,
Aboriginal and Torres Strait Islander Social Justice Commissioner &
Acting Race Discrimination Commissioner,
Human Rights and Equal Opportunity Commission

Monday 12 August 2002

Distinguished guests, ladies and gentlemen…

I would like to begin
by acknowledging the traditional owners of the country on which we meet
- the Noongar people.

It was with great
pleasure that I accepted the invitation of the Office of Multicultural
Interests to present this seminar and share with you some of my experiences
and observations about racism and the media in Australia.

The media play a
major role in establishing, reaffirming and undermining 'popular' attitudes
about race and racism in Australia. This point is not new. It has been
made time and again. In 1991, evidence presented to HREOC's National
Inquiry into Racist Violence
found clear links between media coverage
of Indigenous and immigration issues and the levels of victimisation of
individuals and organisations from Aboriginal and ethnic communities.
Evidence to the Inquiry also raised issues about the role of the media
in promoting and perpetuating racist stereotypes - especially in relation
to Aborigines.

More recently, concerns
about the media's capacity to foster racism were expressed at the United
Nations' World Conference Against Racism, Racial Discrimination, Xenophobia
and Related Intolerance held in Durban, South Africa last year. In its
final declaration, the Conference noted 'with regret' that

"certain media,
by promoting false images and negative stereotypes of vulnerable individuals
or groups of individuals, particularly of migrants and refugees, have
contributed to the spread of xenophobic and racist sentiments among
the public and in some cases have encouraged violence by racist individuals
and groups". [1]

At the same time,
the Conference also welcomed the positive contribution which could be
made by the media and by new information and communications technologies
such as the internet, drawing attention to its potential to create educational
and awareness-raising networks against racism. [2]

We heard the same
messages about the media in national consultations on racism, which I
undertook last year in my capacity as Race Discrimination Commission in
preparation for the World Conference Against Racism. The consultations
began with a national summit and a youth summit on racism in May 2001,
followed by regional consultations in capital cities, rural and regional
towns and remote communities across the States and Territories of Australia.
As part of the consultation process, we also conducted specific focus
groups with Indigenous, refugee and migrant women in New South Wales.

One issue frequently
raised in these consultations was the role of the media in influencing
public opinion. Many participants identified the power of the media to
incite or combat racism and many also expressed concerns about the lack
of appropriate measures to ensure that the media combats rather than fosters
racism. There was consensus on the need for a more rigorous media code
of conduct to ensure the media positively promotes cultural diversity.
The code of conduct should include more effective and transparent complaint
and enforcement provisions be implemented by a body that includes community
representatives.

In response to the
little booklet summarizing the national consultations, the Daily Telegraph
editorialized - under the title 'Democratic freedoms threatened' - that
the Commission was trying to impose a "sweeping media code of conduct
to prevent racial discrimination". Columnist Piers Ackerman wrote
that I had "apparently relied on material solicited from people who
believe they are owed positions of power and responsibility in society
because of the colour of their skin, their gender, or their particular
language or choice of clothing". [3] This attack
illustrates the sensitivity of the environment in which we work. It is
a contentious job trying to balance what some see as competing rights
- the right to free speech with the right to freedom from discrimination,
racial hatred and intimidation.

Today, I would like
to speak about these competing rights. I want to examine the Australian
debate particularly and then discuss Australian legislation and other
regulations which constrain speech in the interests of freedom from racial
vilification.

Freedom of speech vs. freedom
from racial vilification

Balancing the right
to free speech with that of freedom from racial vilification is undoubtedly
a difficult and complex task.

Freedom of the press
and freedom of expression are basic tenets of liberal philosophy and of
parliamentary democracy. Unlike Americans, Australians do not have an
express constitutional guarantee of free speech, and the implied protection
only covers 'political communication.' However, the federal Human Rights
and Equal Opportunity Commission Act does provide limited recognition
that our 'human rights' include the right to freedom of opinion and expression
as set out in Article 19 of the International Covenant on Civil and Political
Rights.

Freedom of expression
is of critical importance to those of us who work in the field of human
rights because it enables us to reveal and critique corruption, injustice,
inequality and oppression.

Yet freedom of expression
is not always an instrument of liberty. Racial abuse, vilification and
the dissemination of racist propaganda are forms of expression that violate
the rights and freedoms of others. Racial vilification can take spoken
or written form, and may also include images, which offend, insult, humiliate
or intimidate others because of their race. Where these expressions are
extreme, they can generate such fear as to prevent others from living
or working in certain places, from taking up employment, traveling to
work, and other activities that many take for granted.

Racist actions are
cultivated by the acceptability of racist speech - as a consequence racial
abuse and vilification can lead to more overt racism such as physical
attacks and even homicide. [4] So, limiting racial abuse
and vilification not only protects the victims from such behaviour, it
can also prevent the escalation of racially motivated crime and safeguard
the longer-term stability of society.

The aftermath of
September 11 illustrates how, in the after-shock of a crisis, particular
racial groups can become the targets of aggressive retaliation, even from
their fellow citizens. In Australia, in the weeks following September
11, Arabic communities reported an escalation of attacks - especially
against women and girls.

For these reasons,
the right to freedom of expression must be limited by the right to freedom
from racial vilification and abuse. The Universal Declaration of Human
Rights states that the rights and freedoms of the individual are limited
by "the rights and freedoms of others" and the need to meet
the just requirements of morality, public order and welfare. [5]
In addition, the International Covenant on Civil and Political Rights,
like the Declaration, states that freedom of expression can be limited
by law where this is necessary to respect the rights or reputations of
others, or for the protection of public order.[6] So,
international human rights instruments do not assert freedom of expression
as an absolute right. Rather, this right must be limited by accepted legal
exceptions, and particularly the rights of other individuals.

Of course, in reality,
the right to freedom of expression is never absolute. In Australia, we
limit free speech by having laws:

  • On defamation
    to deter and redress assaults on reputation;
  • On pornography,
    to restrict material deemed utterly offensive, degrading, exploitative
    or corrupting;
  • On copyright to
    protect the value of intellectual property;
  • On sedition to
    protect national security;
  • On tobacco or
    firearms advertising to limit the impact of legal yet harmful products;
  • On false advertising
    to protect people from being deceived or misled;

Yet certain segments
of the media argue consistently that democracy is undermined by limitations
on expression imposed by legislation or regulation. Whenever the issue
of regulating racial vilification has been raised in Australia over the
last 3 decades, the media has invariably asserted its right to report
on issues of concern to the community without fear of censorship or excessive
restriction. The commonly expressed fear is that legislation blurs the
line between criticism and abuse and stifles public debate on issues of
legitimate public interest.

These claims are
based on two flawed arguments.

  • One is that racial
    vilification is no worse than any other form of vilification and it
    only results in 'hurt feelings'. There is a great deal of research which
    shows that racial vilification imposes cumulative harm serving to silence
    and subordinate minority groups, minimising their participation in society
    and affecting the educational patterns and life outcomes of vilified
    groups and individuals. [7]
  • The second is
    that in tolerant societies like Australia, there is no real need for
    such laws. This claim has also been challenged - in our own recent national
    consultations and most prominently in HREOC's 1991 National Inquiry
    into Racist Violence.

The media were among
the most vocal critics of HREOC's 1991 National Inquiry into Racist Violence.
The final report of the Inquiry was described in The Australian as 'hysterical
and melodramatic'. [8]

Similarly, the introduction
of the Racial Hatred Bill to Parliament in 1994 caused many newspapers
to issue strong statements defending freedom of speech from a perceived
attack:

  • Melbourne's Age
    newspaper ran an editorial on 11 November 1994 asking: "Why muddy
    the waters with a bill for which there is no demonstrated, let alone
    urgent need, and which, however carefully it is phrased may transgress
    their right of free speech?" [9]
  • The Herald
    Sun
    editorialised on 2 November 1994 described the Racial Hatred
    Bill as a 'dangerous piece of legislation' and argued that it "may
    turn out to be the biggest destroyer of that most necessary thing in
    a democracy - freedom of speech." [10]
  • The
    Australian published a swag of letters decrying the proposed
    bill fearful that it would 'gag discussion' and arguing that racial
    vilification laws…"have the potential to turn obscure racists
    into martyrs for the cause of free speech." [11]

The reactions elicited
by the proposed new racial vilification legislation in 1994 were very
similar to those expressed in Parliament by members of the opposition
Liberal/National parties two decades earlier over the introduction of
the Racial Discrimination Act 1975. To ensure the bill's successful passage
through Parliament in the face of vehement opposition, two clauses had
to be dropped: one dealing with incitement to racial disharmony and the
other dealing with the dissemination of ideas based on racial superiority.
John Howard, then a junior Liberal Party backbencher, argued the opposition
line in the following terms:

"To get into
the field of prohibiting the dissemination of ideas is something which
is so dangerous, in the Opposition's view, that in no circumstances
could we agree to the inclusion of the clause….it is one of those
situations where one has to balance competing demands. On the one hand,
there is the demand to eliminate acts of racial discrimination. On the
other hand, there is the demand for preservation of a completely free
society in which it is proper and reasonable for people to have freedom
to disseminate ideas." [12]

Frameworks for regulating
and legislating against racial vilification

There are two main
kinds of protection against racial vilification in the media in Australia:

  • Media industry
    codes - these are non-legal standards produced and monitored by the
    media themselves and largely enforced through media self-regulation.
  • Legislation -
    this includes both civil provisions such as Commonwealth and state anti-discrimination
    legislation and criminal law which provide specific penalties for assault,
    battery, abusive or threatening phone calls and the incitement of criminal
    acts of racist violence.

Media Industry
Codes

The media insists that their own rules and codes governing reporting are
sufficient safeguards to protect against individuals and organisations
being hurt by racially offensive material. However, aside from the Racial
Discrimination Act
, there are no uniform standards operating to regulate
all media in Australia. Instead, there is a rather confusing array of
professional codes and standards that guide what various media should
or should not publish.

The Australian Journalists' Association has a Code of Ethics which
sets out that "journalists shall not place unnecessary emphasis on
gender, race, sexual preference, religious belief, marital status or physical
or mental disability." The Code is binding on all journalists who
are members of the Association and journalists who breach the code can
be fined by the Association's Adjudication Committee. However, not all
journalists are members of the Association and non-members are not liable
for fines under the code. Furthermore, interpreting what constitutes 'unnecessary
emphasis' is a contentious and highly subjective exercise. The Royal Commission
into Aboriginal Deaths in Custody found many examples where newspaper
reports stressed the Aboriginality of alleged criminal offenders for no
reason other than that the journalist or editor considered this to be
relevant. [13]

The Australian Broadcasting
Tribunal is responsible for monitoring the standards of commercial radio
and television programs under the Broadcasting Act 1942. Under
the Act, licensees must not transmit a program which "is likely to
incite or perpetuate hatred against; or gratuitously vilifies; any person
or group on the basis of ethnicity, nationality, race, gender, sexual
preference, religion or physical or mental disability." An individual
or group who believe that a broadcaster has breached this standard can
complain to the Tribunal which then investigates the complaint and has
the power to impose fines or cancel commercial media licences. However,
the Tribunal has never exercised its powers to withdraw or refuse to renew
a licence for breach of the standards on racial vilification.

The print media is
much less regulated than the broadcast media. It's bound only by guidelines
laid out by the Australian Press Council, which is a voluntary body made
up of press and public representatives who adjudicate on complaints. The
relevant Press Council principles advise that,

"publications
should not place gratuitous emphasis on race, religion, nationality,
colour, country of origin, gender, sexual orientation, marital status,
disability, illness, or age of an individual or group. Nevertheless
where it is relevant and in the public interest, publications may report
or express opinions in these areas"
and that
"the press needs to show more sensitivity in reporting issues when
minority groups are perceived in the community to be different or when
they are the subject of a particular debate…" [14]

These are admirable
principles - but what effect do they have in practice? Under the Press
Council Principles, the headline, 'ABORIGINAL GANGS TERRORISE SUBURBS'
which appeared in the Western Australian newspaper in the early 1990s
[15] was found not to breach the standards of the Press
Council. Yet this same headline was found to be a 'fundamental untruth'
by the Royal Commission into Aboriginal Deaths in Custody in its report
of May 1991. [16]

Clearly, media self-regulation
operates unevenly depending on the form of media and is often inconsistent
with the racial vilification provisions of the Racial Discrimination
Act.

Legislation

How has Australian
law negotiated the balance between freedom of expression and freedom from
racial vilification?

The major international
standard on the regulation of racist speech is found in the International
Convention on the Elimination of all Forms of Racial Discrimination (ICERD)
which Australia ratified in 1975. Article 4 requires parties to adopt
immediate and positive measures to combat the spread of racist ideologies.
Article 4(a) requires dissemination of ideas based on racial superiority
or hatred, incitement of racist violence and all acts of racial violence
to be offences punishable by law.

When Australia ratified
the Convention in 1975, it submitted a declaration with respect to article
4 stating "it was not at present able to treat as offences all matters
covered by Article 4(a)". The Whitlam Labor Government expressed
its intention, 'at the first suitable moment to seek from Parliament legislation
specifically implementing the terms of Article 4a. [17]
' That 'suitable moment' did not arrive until 1995 with passage of the
Racial Hatred Act.

The impetus to introduce
Commonwealth legislation which met Australia's obligations under ICERD
and outlawed racial vilification came after a series of reports in the
early 1990s which recommended the introduction of federal laws to address
racial vilification. In 1991, HREOC's National Inquiry into Racist
Violence
and the Report of the Royal Commission into Aboriginal
Deaths in Custody
both found that racist violence occurred at unacceptably
high levels in Australia. The following year, the Australian Law Reform
Commission released its report on Multiculturalism and the Law which
also documented the existence of racist abuse. These reports dealt a blow
to the notion that Australia was a tolerant society with no real need
for laws prohibiting racial vilification.

When the Racial
Hatred Bill
was first introduced to Parliament in 1992, it proposed
to make racial vilification unlawful by amending both the Racial Discrimination
Act 1975
and the Crimes Act 1914 to create the offence of racial
incitement. However, after more than two years of consultation and negotiation
in Parliament, the criminal sanctions and provisions regarding racial
incitement were removed entirely to secure its passage into legislation.
When the Act was passed in October 1995, the Keating Labor government
made a commitment to introduce further legislation imposing criminal sanctions
for extreme racist behaviour if it were re-elected - neither of which
happened.

Currently, the civil
remedies offered by the Racial Hatred Act are the only national
provisions specifically directed against racist speech. Given its importance,
it is worth taking a moment to explore how the Act works.

Under the Racial
Hatred Act
it is unlawful to insult, humiliate, offend or intimidate
another person or group in public on the basis of their race. A public
act can include racist abuse yelled from one person's house to their neighbour's
house. On the other hand, a private conversation between two individuals
is not unlawful in Australia - even if the discussion is racist.

In order to protect
freedom of expression, the legislation sets out certain circumstances
in which the racial prohibition will not apply, providing the person has
acted reasonably and in good faith. First, if the action is part of an
artistic work it is not unlawful. Also exempt are academic and scientific
works and debates or comments on matters of public interest. This permits
a range of public policy issues to be debated such as multiculturalism,
affirmative action for migrants and so on. The media are given considerable
scope within a third exception which permits fair and accurate reporting
on any matter of public interest. This last exception enables the media
to report on public issues, such as racial incitement or racially offensive
conduct. It also allows editorial opinions and the like, providing they
are published without malice.

This national legislation
has some distinct limitations as these examples demonstrate.

The scrawled statement
on Carol Martin's media release - "Just goes to show you can't trust
a blackfella" - would probably escape because the offender is anonymous
and unlikely to be identified. The conciliation process needs two identifiable
parties - a complainant and a respondent.

The identification
of gang rapists in Sydney as Lebanese, while it may effectively stereotype
the entire Lebanese community, would also probably escape on the basis
that it is factually accurate: a "fair and accurate report on a matter
of public interest". Public 'debate' about the cultural mores which
could have lead these young men to consider Anglo women as "fair
game", may also be lawful on the basis that it reflects writers'
genuinely held beliefs on a matter of public interest.

Publication of One
Nation Party member David Oldfield's call for a ban on Muslim immigration
would also probably escape as the Racial Hatred Act does not extend
to (or is not currently interpreted to cover) vilification on the ground
of religion as distinct from race and ethnicity.

State law

In 1989, New South
Wales became the first state to make it unlawful for a person, by a public
act, to incite hatred towards, serious contempt for, or severe ridicule
of a person or groups of persons or members of a group on the grounds
of race. The 1989 amendment to the Anti-Discrimination Act 1977
also created a criminal offence for inciting hatred, contempt or severe
ridicule towards a person or group on the grounds of race by threatening
physical harm (towards people or their property) or inciting others to
threaten such harm. Prosecution of the offence of serious vilification
requires consent from the Attorney-General and carries a maximum penalty
of a $10 000 fine or 6 months imprisonment for an individual - $100 000
for a corporation. This provision has not yet been used.

South Australia and
the ACT have anti-vilification laws that essentially mirror the New South
Wales legislation while Queensland and Victoria outlaw both racial and
religious vilification.

Unlike the other
states and territories, Western Australian law imposes criminal but no
civil sanctions against racial vilification. In Western Australia, the
Criminal Code was amended in 1989 to criminalise the possession,
publication and display of racially threatening or abusive material. A
penalty of up to two years imprisonment for an indictable offence and
six months imprisonment or a fine of up to $2000 for a summary offence
can be imposed for possessing threatening or abusive material with the
intent to publish, distribute or display that material to create
or promote racial hatred. It is noteworthy that the Western Australian
legislation only addresses written or pictorial information - not verbal
comments. The emphasis on written material arose in direct response to
the racist poster campaigns launched in the late 1980s and early 1990s
by the extremist anti-Black, anti-Semitic, anti-Asian Australian Nationalist
Movement.

The question now
facing Western Australians is - are criminal sanctions against racial
vilification effective enough? Is there a need to provide victims of racial
vilification with civil remedies through state-based, not just federal
legislation? Should speech also be covered? Can legislation of any kind
- civil or criminal - succeed in combating racial vilification?

How effective are anti-vilification
laws in Australia?

Given the differences
in the content and application of the various state and federal anti-vilification
laws, it is difficult to evaluate the effectiveness of criminal versus
civil sanctions against racial vilification in the different states and
territories.

In practical terms,
judging by the number of complaints lodged, civil remedies appear to have
been more useful to more victims of racial vilification. Civil remedies
are relatively inexpensive, flexible and confidential making a complaints-based
approach potentially more attractive to people who have been vilified.

Since the federal
Act came into operation, HREOC has received almost 500 complaints of racial
vilification. In 2000-2001, HREOC received a total of 373 enquiries about
racial vilification and 118 complaints under the Racial Hatred Act.
Around one quarter of these complaints (24%) involved the media, with
a substantial proportion relating to disputes between neighbours.

While the numbers
of complaints made on the grounds of racial vilification are not huge,
it is important to note that in comparison, to date, there have been no
criminal prosecutions in the states or territories with criminal sanctions.
This may be due to the requirement for the Attorney-General to consent
and the higher standard of proof set for criminal cases which requires
proof beyond reasonable doubt. Obtaining proof of the requisite intent
will almost always be a challenge.

I believe that legislation
can and does play an important role in combating racial
vilification. The principal achievement of the legislation has been to
give the victims of racial vilification an avenue of redress for their
injustice. Not only do the laws provide a measure of justice and comfort
to victims, but they help to deter the most violent and extreme forms
of racism and serve as a declaration that racist behaviour will not be
tolerated.

However, while laws
do help to regulate conduct, legislation is most effective when
it operates in conjunction with other forms of social intervention in
tackling racism and racial vilification. This point was made by the late
Justice Murphy who, when introducing the Racial Discrimination Bill into
Parliament in 1974 argued, 'laws proscribing discrimination are vital
though they are not in themselves sufficient.' He added:

"The legislation
recognises that there must also be effective and systematic enforcement
of rights and promotion of education and research if the elimination
of racial discrimination in this country is to be advocated in fact
as well as in theory." [18]

Conclusion

I would like to conclude
by mentioning some of the broader strategies we at the Commission are
developing and implementing to tackle racism in Australia.

If we are serious
about combating racism, education must be a priority. One of the most
successful public education projects that HREOC has undertaken over the
last few years is the booklet Face the Facts. This publication, currently
in its second edition, takes a number of common misconceptions relating
to Indigenous people, migrants and refugees and provides the public with
clear, factual information on issues such as native title and multiculturalism.
This booklet has been widely distributed among community groups, public
libraries and schools and is about to be updated on the internet. We are
also in the process of developing an education module based on the latest
edition of Face the Facts aimed at upper primary and secondary
school students and their teachers.

Encouraging understanding
of and compliance with our legislation is another important educative
function of the Commission. Currently, my staff are looking at the issue
of racial vilification on the internet. Later this year, I will be consulting
with a select panel of experts in the field of 'cyber-racism'. These experts
will evaluate the effectiveness of current regulation of racial vilification
on the Internet in Australia and assess whether and how regulation can
be made more effective. An important function of these consultations is
essentially educative - we aim to raise awareness of and foster compliance
with our legislation amongst relevant stakeholders and decision-makers
in the field of internet regulation.

Monitoring the media
for evidence of racially biased reporting or sensationalist headlines
is another routine part of our everyday work. Yet rather than just focusing
on the negative, HREOC also looks for and celebrates positive examples
of media reporting that have helped to tackle prejudice that leads to
racism. Each year, HREOC presents Human Rights Awards in a number of categories
- including media. These awards recognise the contribution to Australian
society of a wide variety of individuals and organisations committed to
issues of human rights, social justice and equality. Last year, the ABC's
4 Corners program won the media award for two stories screened in August
2001: one about the physical and mental health of asylum seekers in detention
and the second an 'inside story' of asylum seekers in Villawood Detention
Centre. In allowing detained asylum seekers to speak for themselves, both
stories helped to break down stereotypes that foster racial prejudice
against asylum seekers.

Clearly, legislation
alone is not a panacea for racism. Education about the standard set by
the legislation must be widespread and clearly understood in order for
laws to have a preventative effect and influence social norms. Compliance
with legal standards has to be valued by opinion leaders - including politicians.
Flouting racial vilification laws should not be proof of strength in politics.
There must also be continuous attention to eradicating racist messages
from policies, from the educational curriculum, from institutions (such
as the police), from the labour market and indeed from the media.

1. WCAR,
Durban Declaration, para 89.
2. WCAR, Programme of Action, paras 140-141.
3. The Daily Telegraph, Thursday 6 December 2001.
4. Gordon Allport, The Nature of Prejudice, 1958.
5. Article 29(2) Universal Declaration of Human Rights.

6. ICCPR Article 19(3).
7. Stefanou-Haag E, Antiracism - From Legislation to Education
- Australian Journal of Human Rights Volume 1 Number 1 (1994)
8. The Australian, 22 April 1991, p10.
9. The Age, 11 November 1994.
10. Herald Sun, 2 November 1994, p 12.
11. The Australian, 11 November 1994.
12. Hansard, House of Representatives, 6 March 1975,
pp1408-9.
13. Royal Commission into Aboriginal Deaths in Custody,
Regional Report of Inquiry into Underlying Issues in Western Australia,
Volume 2, Canberra, 1991, pp 724-727.
14. Australian Press Council, Reporting Guidelines -
General Release Number 240, September 2001, http://www.presscouncil.org.au/pcsite/guides/gpr248.html
15. The West Australian, February 28 1990.
16. Royal Commission into Aboriginal Deaths in Custody,
Regional Report of Inquiry into Underlying Issues in Western Australia,
Volume 2, Canberra, 1991, p 713.
17. ICERD, Declaration made by Australia, 30 September
1975.
18. Laksiri Jayasuriya, Legislating Against Racial Incitement:
Strategies and Rationales, Department of Social Work and Social Adminstration,
University of Western Australia, 1989, p19.

Last
updated 19 September 2002