Right: On 28 September 2011, columnist Andrew Bolt was found to have contravened section 18C of the Racial Discrimination Act. Outside the court, he declared that the decision marked a sad day for free speech.
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Arguments in favour of retaining section 18C of Australia's Racial Discrimination Act
1. Freedom from racially motivated abuse is a basic human right
The preamble to the Universal Declaration of Human Rights issued by the United Nations in 1948 refers to those principles which underpin the application of all other rights. Key among these is 'the inherent dignity...of all members of the human family'. From this declaration of the intrinsic worth of all human beings can be extrapolated an opposition to any form of discrimination that seeks to deny this worth and dignity. Included in this is discrimination based on race or ethnicity.
The Office of the United Nations High Commissioner for Human Rights states, 'Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.
The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: 'All human beings are born free and equal in dignity and rights.'
Racially based verbal abuse is a form of racial discrimination in that it uses an individual's ethnicity or racial origin as the basis for making negative comments about that person.
Rachel Ball, director of advocacy and campaigns at the Human Rights Law Centre, has noted that rights to freedom from discrimination are particularly important as their violation lies at the heart of significant forms of injustice that afflict Australia and other nations of the world.
2. Laws serve an educative purpose
The laws of a society articulate, through prohibition or punishment, those behaviours that society will not accept. Thus the laws of a country become a statement of the behaviours it endorses and those it does not. In this manner, the law serves to educate citizens regarding socially normative standards of behaviour.
This position has been explained with regard to criminal law by Babara Ann Stolz in an article published in Crime and Justice International in October 1998. Stolz states, 'Scholars have asserted that a society's criminal law may be directed not only toward potential criminals but the law-abiding citizen. That is, criminal law may serve a moral educative function, reassuring law-abiding citizens that they are right.'
In an article published in Social Science Research Network on May 1, 2013, Benjamin Justice, Associate Professor of Education and History at Rutgers University, and Tracey Meares, Professor of Law at Yale University, noted that the law provides 'a symbolic, overt curriculum rooted in positive civic conceptions of fairness and democracy.'
Thus, laws prohibiting public speech that offends, insults or humiliates members of a particular group on the basis of their race or ethnicity, help to set a standard of civil behaviour. Such laws reinforce for the general populace concepts of fairness, respect and decency in public speech as related to race and ethnicity.
Dr Tim Soutphommasane, Australia's Race Discrimination Commissioner has pointed out the value that the Racial Discrimination Act has had in this regard and the consequent danger of removing it. A change in law, he suggests, could also be educative, teaching intolerance and hate rather than acceptance and respect. Dr Soutphommasane has stated, 'The Racial Discrimination Act has worked as it was intended to work. It provides a civil and educative remedy for racial discrimination...Any legislative change can potentially change the tone of society.'
3. Reducing the protections offered under the Racial Discrimination Act will allow racially offensive comment that has a damaging effect on those targeted
It has been claimed that removing key elements of section 18C of the Racial Discrimination Act would leave racial minorities exposed to comments of an extremely offensive nature.
There is concern that if these provisions are removed claims such as those of holocaust denier, Frederick Tobin, will be able to be made with impunity, regardless of how distressing or harmful they are to surviving victims of Nazi persecution and their descendants.
Under the proposed amendments comments that offend, insult and humiliate would be allowed and the only protection against offensive speech would be the inclusion of a new prohibition against statements deemed 'racial vilification'. 'To vilify' is generally understood to mean 'to speak evil of, defame, traduce'. As it is to be defined within the Racial Discrimination Act 'to vilify' has a narrower meaning - 'to incite hatred against a person or group'.
The amendments would thus remove current protections against the psychological damage caused by racially prejudiced statements that fall short of vilification. Dr Tim Soutphommasane, Australia's Race Discrimination Commissioner, has pointed to research which suggests a link between ethnic and racial discrimination and poor mental health and wellbeing. Dr Soutphommasane cited, by way of example, a survey participant who stated, '"I experience racism on an all too regular basis ... It is a tremendous psychological blow because it is something that I experienced from age 5 to now and I am often left feeling helpless and vulnerable for days afterwards.'
Among those who have stressed the psychologically damaging effects of racial abuse is Senator Nova Peris, former Olympic athlete and Australia's first indigenous female MP, who has stated. 'We have all seen the devastating effect racial abuse has on people. They are not the same...Racism hurts.'
There are those who fear that if the proposed amendments are made law there would be nothing to protect targeted individuals from the negative consequences of feelings of humiliation, exclusion and denigration.
Australian Human Rights Commission president, Gillian Triggs, has stated that the Racial Discrimination Act must continue to acknowledge the psychological and social harm to victims of racial abuse.
4. Racism is a significant problem in Australia which sometimes culminates in racial violence
Defenders of the current provisions of section 18C of the Racial Discrimination Act claim that racism is a significant problem in Australia and that it would not be appropriate to remove any of the legal sanctions against it.
In the 2013 Peace and Understanding Lecture delivered at International House on September 17, Dr Tim Soutphommasane, Australia's Race Discrimination Commissioner, highlighted the continuing problem of racism in this country.
Dr Soutphommasane noted that according to the Challenging Racism Project, led by researchers at the University of Western Sydney, about 20 per cent of Australians have experienced forms of race hate talk (for instance, racial slurs or verbal abuse).
About 11 per cent of Australians report that they have experienced exclusion from their workplaces or social activities based on their racial background.
Statistics from the Australian Human Rights Commission reveal a significant increase in the number of complaints made by members of the Australian public about racial discrimination in the year 2012-13 - with a noticeable increase of 59 per cent in the number of complaints about racial hatred compared to 2011-12.More than one in 20 Australians say they have been physically attacked because of their race.
The high incidence of racially motivated physical abuse is one of the principal reasons offered for discouraging verbal racial abuse. It has been claimed that there is no absolute divide between racially offensive comments and racially offensive behaviour; including that involving violence. Rather, it has been argued, racially offensive speech and violent, racially abusive actions, exist on a continuum where the first can serve as a precursor to the second.
Dr Tim Soutphommasane has stated, 'There is a connection between racial hatred and racial violence. Where people can degrade others freely, the effect may well be to encourage the physical escalation of prejudice.'
Gerry Georgatos, writing in The Stringer on November 22, 2013, stated, 'The amendments sought to the Racial Discrimination Act 1975 by the Australian Government will give rise to the advent of public race hate, foment racial tensions and solidify rampant racism.'
5. Australian citizens recognise that some limitations on free speech are necessary
It is generally accepted that all rights are potentially subject to restrictions to prevent them imposing upon other rights and freedoms.
Article 29 of the Universal Declaration of Human Rights states, 'In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.'
Defenders of section 18C of the Racial Discrimination act claim that this provision of the act gives legal form to a necessary curtailment of one freedom in order to protect another, as outlined in Article 29 of the Universal Declaration of Human rights.
Michael Lavarch, executive dean, Queensland University of Technology faculty of law, and a former commonwealth attorney-general, has stated, 'Free speech is the oxygen of a liberal democracy and market economy. But like oxygen, it is recognised that it is possible to get the mix wrong, and this has the potential to cause great harm to individuals, groups and the entire community. That is why we accept restrictions on unfettered free speech for social and economic policy reasons.'
Lavarch explained further, 'Probably the most clear-cut example of the public accepting a limitation on free speech is in the field of censorship, particularly in laws criminalising the dissemination of objectionable material, such as child pornography.'
Defenders of section 18C of the Racial Discrimination act argue that freedom of speech is not absolute and that it cannot, as Rachel Ball, director of advocacy and campaigns at the Human Rights Law Centre , has stated, be used 'to prioritise a right to discriminate.'