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A Way to Look at Racial Discrimination

In political circles, s18c of the Racial Discrimination Act is one of the hottest topics. Out in the broader community, it is not exactly high on the agenda. But the government is seemingly moving towards repealing that section of the Act. Indeed, it was one of the commitments made by the government when in opposition.

If the government were to break their promise, and not repeal s18c, they would lose no political skin. The government is still talking about a repeal of s18c of the Act however, though the final outcome may not end up being the removal of this part of the Act. There does appear to be mixed messages from the government.

Both sides of the debate have been passionately advocating their respective positions since the policy was announced. Sometimes that passion has been overly emotional. Nuanced and dispassionate consideration of the issue at hand has often been lacking, with the full repeal advocates and those in favour of the status quo being the loudest participants.

As you would imagine, the issue has been hotly debated on the various political panel shows for some time. And that debate has continued to accelerate in recent weeks, including on The Drum and Q&A last week.

There was a mostly mature discussion of the subject on both programs. The political class, the politicians in this case on Q&A, did get a little more emotional than those closer to the periphery of political debate, the guests on The Drum. 

And then there was the social media commentary from the politically engaged. Twitter, as it often does, played host to a whole new level of angry and emotional consideration of the topic.

From the Twitter discussion last week, I learned that privileged, white, middle-aged males in particular have no right to take offense at any kind of jibes directed towards them. However everyone else is, in the eyes of a number of people on Twitter, allowed to seek comfort from the law. White privilege apparently means that no laws are required.

This is a problem. It is a problem because we live in what is supposed to be a liberal democracy. Granted we do not always get the application of liberal democratic values right in our society, but we are, for all intents and purposes, at the very least in name, a liberal democracy. That means that everyone is supposed to be equal before the law. Everyone is to be treated the same by and under the law.

When it comes to the section of the Racial Discrimination Act in question, I have been on quite a journey. I have held a few positions since the court case involving Andrew Bolt, which started us on the journey to the debate we are having at the present time.

At first my largely libertarian and liberal politics came to the fore. I thought that section of the Act just had to go because, well, free speech. It was a very absolute position. How could anything else possibly amount to free speech I thought.

Then I thought about it some more when I heard David Marr speaking on one of the panel shows on television. His position was that the part of the Act being debated should be altered.

At present, someone is in breach of the Racial Discrimination Act if they engage in behaviour which ‘offends, insults, humiliates or intimidates’.

David Marr has argued that the first two words: ‘offends’ and ‘insults’ are too subjective. The threshold there is indeed too low. A higher test should apply to the Act, and at the time I thought that Mr Marr’s thinking struck the right balance.

But again in recent days I have reconsidered my position. I have begun to think that the word ‘humiliates’ should be removed from the Act. The word seems to me to be so similar to the first two that it is an unnecessary part of the legal test for discrimination.

I do however think that the word ‘intimidates’ needs to be retained in the legislation. Essentially, racial discrimination and vilification in its purest sense is behaviour which intimidates the victim. It is the very foundation of true hate speech and has no part in a civilised society.

In short, we should have laws against hate speech. However, neither the status qu0 nor the proposed alternative position are adequate ways of dealing with what is a very complex issue.

It is worthy to note too that no single characterisation of the Act, either considered here or elsewhere, will eradicate discrimination. However, a legal remedy must remain available for when discrimination and vilification has been found to have occurred.

Not Allowing Parliamentary Footage to be Satirised is a Laughable Matter

Many astute and regular political observers know that there are many limits to the freedoms that should be fully enjoyed in a liberal democracy like we have by name here in Australia. Our freedom of speech and expression and other key rights have been given limits by governments of all political colours and been maintained by those same parties. Many people would be surprised to know however that the use of parliamentary footage for satirical purposes is verboten  under federal regulations and that is a laughable position to be held and yet has been maintained by both Liberal and Labor Governments.

This week, Craig Reucassel of Chaser fame brought a crusade of sorts to Canberra on behalf of television satirists around the nation to push the Gillard Government to overturn this archaic and undemocratic, frankly joke of a law as soon as possible. It seems counter-intuitive that not all material from parliament, which is often a cruel joke anyway is not fair game of comedians and television networks to be used and derided to their hearts content.

In interviews Mr Reucassel made the argument that television shows, like Insiders on the ABC and Meet The Press on the Ten Network, from time to time attempt make light of parliamentary footage in their otherwise serious programs. These shows often begin with the use of sound bites, selective editing and the use of the now much dreaded musical montage which begins just about every political show and attempt to cast bits of politics from the week in a comedic light. Thankfully though for the shows like these attempts to make light of political events often fall flat with the audience and therefore escape the provisions of the legislation governing the use of parliamentary footage.

The Chaser co-star also raised that cartoonists in this nation have, since time immemorial had the freedom to be able to satirise in the national and local papers not just parliamentary goings on, but even going as far as picking on character and personality as well as physical traits and embellishing ’til the cows come home.

Although not related to satire of parliamentary footage,  it is worth noting that Queensland also has little freedom with the usage of parliamentary footage being banned for political advertising and the LNP needed to withdraw an ad from broadcast because it used footage from the parliament in prosecuting its message. This is also an area that needs to be addressed in both state and federal jurisdictions.

YouTube has a very healthy selection of videos which make fun of parliamentarians, adding farting noises and displaying clips of our politicians in compromising positions such as picking their noses and being made to appear on occasions that they were mimicking interesting acts, yet no knickers in a collective knot there.

We really should not continue to go down a path where a television network is not able to highlight and make people laugh at the “facepalm” moments that happen on a regular basis in our parliaments around Australia. All shows should be allowed to attempt to make fun of events that occur regardless of whether the jokes end up falling flat on the audience and parliamentary footage should be free for use in any medium for any purpose. This laughable joke of a piece of legislation must be removed, people already laugh in ironic astonishment at some of the things some of our politicians do and should have the ability to laugh at the kinds of things that political cartoonists have been ad nauseam. Anything less than complete freedom of political expression is a laughable joke.

Bill of Rights, Yes We Can and Must, But Likely When We Become a Republic

In the Australian political discourse there are calls, from time to time, about whether or not Australia is in need of a Bill of Rights, whether it be enshrined in the Constitution of Australia or its own legislative instrument. We need a Bill of Rights, but it is likely that any move for such a protection of rights will not come on its own, but in conjunction with a future Australian republic and that is most certainly a great deal of time away from materialising.

Australia is in urgent need of a Bill of Rights, constitutional or otherwise to defend all the basic rights and freedoms which must be afforded to all human beings. Not only that, Australia needs such legal provisions to clearly express those rights which at the moment are implied or form part of the common law of the Commonwealth of Australia. Too often, because the rights we are supposed to enjoy are either implied or in common law, there is not a clear understanding of the extent to which they apply.
As I have already expressed, there are two forms that a rights bill may take, that is constitutional and legislative.
A constitutional Bill of Rights entails those basic rights and freedoms we should all experience in a liberal democracy being enshrined in the Australian Constitution. This would require a constitutional referendum where a majority of people in a majority of the states and territories vote in favour of putting rights and freedoms into our constitution.
A legislative Bill of Rights is exactly as it sounds, a piece of legislation that is passed by the parliament of the day, requiring a simple majority of parliamentarians to vote in favour of it becoming law.
The question then becomes: what form should a future Bill of Rights take? My answer, is that any future rights bill must be enshrined in our Constitution. Why is this the case? Because, like any form of law made by parliament, a legislative rights bill could indeed be rescinded for any reason, of which none are valid and therefore parliament could erode our collective rights at their whim if they chose to do so.
Now, a constitutional version of a rights bill is not without its downside either, though the downside is indeed both a positive and a negative. Because a constitutional referendum requires a majority of people in a majority of states to pass, it would be incredibly difficult to have a successful referendum (8/44 referenda have passed). However, as I said, that is also the positive, our politicians could not vote a constitutional Bill of Rights down and the people are unlikely to vote out something which they helped institute in the first place.
Now this is where it becomes tricky for the idea of a Bill of Rights to be enshrined in our Constitution any time soon. Because a constitutional rights bill is much more robust, the best chance of it passing at a referendum, would not be under its own steam as a stand-alone move. A human rights bill, forming part of our Constitution, would best be linked to a future Australian republican referendum where it would be almost certain that we would adopt an entirely new Australian Constitution.
Consequently, a new Australian Constitution, complete with human rights protections will most likely be some time away. With an ALP Government, usually strongly committed to a republic, no longer publicly talking about the idea and still two years from election and the would be next Liberal Party Prime Minister a monarchist, by my calculation, a republic and therefore Bill of Rights is inevitable but at least 10 years away.
I don’t think we can or should wait that long. The question is: can you wait? If not, get loud and get talking about it…
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