Section 18C

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Mr Tim Wilson, Human Right Commissioner

The test of a tolerant society is accepting a person’s right to say something outrageous, but for it to be challenged and tackled, but not silenced. That’s why reasonable voices are accepting that there is a need to change the Racial Discrimination Act so that we can protect intellectual freedom while also combatting racism.

In its current wording, Section 18C of the Act makes it an offence to “offend, insult, humiliate or intimidate” a person on the basis of their “race, colour or national or ethnic origin”.

The provision sounds sensible enough, but inside this provision rests a tension between the core human right of free speech and the ongoing and worthy objective of extinguishing racism.

The reality is that we are never called to defend free speech for the excessive use of ‘please’ and ‘thank you’. We are only ever called in to defend free speech for expressions that challenge acceptable norms.

If the law is too limiting then legitimate speech about important matters related to race are censored and can limit our capacity to address legitimate issues.

Last month the Abbott government released an exposure draft to amend the current law. As the issues have been aired it is the clear reasoned voices that accept that there are grounds for sensible change.

Spokespeople for the NSW Rabbinical Council acknowledge that the current design of the laws make it hard for rabbis to “get up and make a pronouncement on certain moral issues [because they] … might insult [someone]”.

Similarly, senior Jewish community leader, Mark Leibler, has said “there is a possibility of working out a solution which will be a sensible compromise that will keep everyone satisfied,” Leibler continued that his “own view is that all the government wants to [do is] remove the word ‘offend’”.

Hovering around the proposed change is the Federal court case that ruled columnist Andrew Bolt in violation of the current law. Many people have wrongly concluded that amending the law is about Mr Bolt, they are wrong; it is about the precedent that the case established for every Australian.

That case defined the test of whether “an act” would “offend, insult, humiliate or intimidate” is not the same test that operates in other Commonwealth anti-discrimination law.

In other Commonwealth anti-discrimination law an objective test used on whether a “reasonable person” with all information believes an offence has occurred.

Under the Racial Discrimination Act the test is based on a subjective test of whether a biased person from the community affected by the speech is “reasonably likely” to be insulted, offended, humiliated or intimidated.

Therefore it is possible that two persons, standing side-by-side, can be saying exactly the same thing at a public event. But because one individual is (or appears to be) from a particular “race, colour or national or ethnic origin” can be legal, while the other, not from that group, is not legal.

This interpretation directly undermines the human right of equality before the law.

That’s why the government has proposed that the test of whether an offence has occurred is “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”.

Recognising the legitimacy of this concern, the Executive Council of Australian Jewry has proposed that “an ordinary member of the Australian community” should also be expected to be unbiased to ensure culturally ingrained prejudice is not considered acceptable.

It is not the only change proposed. One of the great myths around the current law is that it includes protections against racial vilification. It does not.

Recognising this absence, the government proposed amendments to insert a new requirement to protect Australians from “vilification”.

Another myth is that Australia is required to have the current wording in line with standards under international law.

This argument has been addressed by respected international lawyer and President of the Australian Human Rights Commission, Professor Gillian Triggs. According to Professor Triggs “as an international lawyer … the Racial Discrimination Convention itself does not require more than that states make unlawful words that are based on racial hatred or incite discrimination or violence”.

But the most concerning myth is that any change to the law signals the acceptance of racism. There is a difference between lawful conduct and acceptable conduct. The current law leaves racism in private discussions lawful, but it is never acceptable.

Law does play an important role, but not all racism can be stamped out by legally limiting free speech.

 

Tim Wilson is Australia’s Human Rights Commissioner – tim.wilson@humanrights.gov.au

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