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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.

Free Speech Monday in Australian Politics

Monday, after the early morning victory by Jamaican runner Usain Bolt and aside from the other action that has been and has continued to occur in England has been pretty much all about freedom of speech. The discussion about free speech today arose from a speech that Tony Abbott made to the right-wing think-tank, the Institute of Public Affairs. The Opposition Leader’s speech took on the topic of free speech from two separate, but linked directions.

In one instance it was about regulation of the media in general as far as government plans post-Finkelstein and Convergence Review. Those changes proposed in both inquiries would seek to place unwanted and unnecessary restrictions on our media in the future, stifling their ability to provide fearless criticism of dreadful governments of both political persuasions.

The second front in which freedom of speech was tackled was in relation to the recent Andrew Bolt racial villification case and the appropriateness or otherwise of having a Racial Discrimination Act with a very loose definition of wrongdoing. Section 18C of the Act was singled out for treatment. The broader narrative of the talk on free speech was also applied to the case of Andrew Bolt.

Among the proposals advocated for in the recent Finkelstein and Convergence Review’s are a News Media Council which would be a new regulatory body to oversee media outlets and an ownership test.

By far the most worrying recommendation and one that is reportedly being seriously considered is a public interest test on media stories. This would be an horrific encroachment of the government into regulating what kinds of stories a particular news outlet would be able to report on. No government should be able to determine what is news or otherwise, whether that be by direct government oversight or by legislation with an intent to limit the content journalists can put out. Access to a wide array of information from a variety of sources is extremely important.

As for a new regulatory body, well that too is problematic. Surely any new organisation proposed to oversee the media would have much more beefed up powers to punish certain perceived wrongs. This again is not a sensible move in seeking to make it difficult for a robust and diverse media to be frank and fearless in their reporting and commentary on particularly thorny issues.

An ownership test is just ridiculous. Anyone, from any background should be free to engage in journalism or commentary and equally should be freely available to criticism from others. Everyone should be free to take the entrepreneurial risk involved in establishing a news media company across all forms of communication. No government too should have the power to ever be able to say who can or cannot involve themselves in journalism and commentary because they might not be liked by that particular government for some reason or other.

But now to that more controversial aspect of Mr Abbott’s speech today and that was his announcement that an incoming Coalition Government would seek to repeal s18C of the Racial Discrimination Act.

This section of the Racial Discrimination Act deals with behaviour which is deemed to have offended, insulted, humiliated or intimidated someone based on their race, colour or national or ethnic origin.

This is likely to be an uncomfortable move for many with the Act in one way or another, despite the suspension of it during the Northern Territory intervention, having some level of bipartisan support or at least a political unwillingness of either side to touch it. That is until now.

But Mr Abbott did not advocate for there to be no law in the area of racial discrimination. Indeed he went on to say in his speech to the IPA that “any prohibitions on inciting hatred against or intimidation of particular racial groups should be akin to the ancient common law offences of incitement and causing fear.”

In advocating this stance the Opposition Leader did not say or imply that Andrew Bolt in writing the offending column he penned was right with what he said. Indeed Tony Abbott acknowledged that it was “almost certainly not his finest” and he also admitted “there may have been some factual errors.” Well it’s not a case of there possibly being factual errors in Bolt’s writing, there was, but as Mr Abbott has pointed out on numerous occasions, that is not the point.

Indeed with the Bolt case, you’ll find a number of people born early in the 20th century, even since then that have the wrong impression on various aspects of the indigenous issue, but should they all be subject to court action for holding fallacious views? No. Should they be corrected upon making such silly uninformed claims? Certainly, yes.

Just as someone should be free to say what they truly feel, providing it doesn’t incite hatred or cause fear, people who disagree with something should feel able to absolutely slam and demolish something which they disagree with and believe may have serious factual errors. Politics is about competing ideas. This is also something that the leader of the Opposition acknowledged.

Just as there is a case for only offences relating to incitement and causing fear, there is also a case for a much higher threshold test than the completely subjective one that exists under s18C of the current Racial Discrimination Act. This would be sensible middle ground whilst still allowing people to seek remedy within reason. Indeed it would be quite similar to the Abbott proposal today.

The most important thing is that our rights are at the very least not limited to unreasonable extremes and at absolute best, our freedom of speech is fully guaranteed save for when it causes incitement and fear.

That was free speech Monday.

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