Speech in Parliament on Section 18C of the Racial Discrimination Act
1.55pm | February 25, 2016
The motion before this chamber is very, very broad in scope. I commend Senator Leyonhjelm for his broad and thoughtful speech, which ranged across a wide range of policy areas and pieces of legislation, although I think he will be unsurprised to hear that in so doing I do reserve to my right to disagree with him quiet vehemently in some respects. Inevitably, the topic leads us back to section 18C of the Racial Discrimination Act. I listened carefully to Senator Smith and his contribution. I will acknowledge that that is a more measured contribution than the general tone of this debate over the last couple of years. I note his pessimism about progress. I am not entirely sure that I disagree with him, because in fact I would not be surprised if those who are advocating for 18C got what they want.
Let us think about where our Prime Minister, Mr Turnbull, is at the moment on those policy positions he has held so dear for so long. He has already betrayed the moderates in his party on marriage quality, he has already betrayed the moderates in his party on climate change, he has failed to deliver the sensible mature economic debate he promised, he has failed to end the policy on the run and, most recently, he is walking away from protecting vulnerable teens from bullying in schools. I would not be surprised if the Prime Minister completes his transformation into a reincarnation of former Prime Minister Abbott by reintroducing the legislation that will restore the right to be a bigot: the amendments to section 18C of the Racial Discrimination Act.
This motion wants to call out the government for its failure to uphold freedom of speech. I want to call out the government for a number of other things: for its failure to vocally protect minority and vulnerable communities and its failure to avoid the damaging debate about 18C that saw the Attorney-General of this country—no less than the Attorney-General of this country—say out loud, in a public form, that you have the right to be a bigot and then to continue to stand by that statement. In so doing, I believe that it give the government's imprimatur to racist epithets—those epithets that are hurled from passing cars at Muslim women who have the temerity to wear head scarves or at Indian workers who are just doing their jobs
But I want to go more broadly to the impacts of 18C and to its context in the overall arrangements for freedom of speech in this country, because we need to be very clear. 18C is not the first burden on free speech, nor is it the biggest burden. There is the classic example of shouting 'fire' in a crowded theatre. We do have laws that prohibit speech which incites others to violence. But it is not just where safety is concerned that we limit free speech. Political communication is recognised as a special, protected expression of free speech and has been recognised as such by our High Court.
Yet even here in the parliament, this place for politics and political communication, there are constraints on how we conduct ourselves. We do need to refrain from using offensive words or offensive language—or at least we do need to do so in relation to one another. We will have to wait until Monday to see if we may use offensive words and offensive language in other contexts. Standing order 193 provides that:
A senator shall not use offensive words against either House of Parliament or of a House of a state or territory parliament, or any member of such House, or against a judicial officer…
I will just explain that this provision underpins the maintenance of comity between houses of parliament, through the nation and between the legislative and judicial branches of government. This is a restriction on free speech, certainly, but it is one that we accept because it underpins the kind of political society, and the nature of political debate and political communication, that we see as being fundamental to a civilised and democratic society.
There is the question of offensive language in public, another area where we do not allow out citizens to give free range to their worst instincts. It is a crime to use offensive language in a public place. In New South Wales last year 12,000 people were convicted of breaching criminal summary offence provisions concerning offensive language. Merely using a profanity in public can be enough to see you convicted of such a provision. And of course a very significant area where we seek to restrict speech is given effect by the laws of defamation. For those who enjoy fine dining, there was a classic, and one has to say somewhat entertaining, defamation case a few years ago. A Sydney Morning Herald food critic reviewed a particular restaurant and described a chicken dish as 'outstandingly dull', using the somewhat entertaining language preferred by journalists, quite understandably. They used very evocative language to savage the restaurant. On that occasion the court awarded $600,000 in damages.
So it is wrong to say that these provisions that exist in the Racial Discrimination Act are unique in their effect of limiting free speech. It is a principle that is embedded in a range of ways in different laws which seek to protect a range of characteristics of the society we live in. The Race Discrimination Commissioner, Dr Tim Soutphommasane, quite rightly said:
To those who would say that hate speech regulation in particular places unduly excessive restrictions on speech, I say this: if we can accept that politicians must refrain from using offensive language, if we accept that you can be convicted for using offensive language in a public place as a criminal offence, if we accept that you may be liable to pay out $600,000 for saying you didn't like a chicken dish, then it is only right that people are also held accountable for those acts which involve racially abusing and vilifying another person in public.
Just because a policy burdens freedom of speech, that does not in and of itself make it illegitimate. I support freedom of speech, but it is not an absolute right, and in this regard I differ specifically from Senator Leyonhjelm. This right to freedom of speech has to be balanced against the rights that others have.
The basis of a civilised, democratic society is in balancing the competing rights that our citizens have against one another to improve the common welfare of all. There is no right that is absolute, and nor should there be. Every right has the capacity to impact on the lives of others and in so doing to impinge on others' rights. Think about our right collectively to security and safety versus the right to freedom of association. Both of these things are important and both are things we seek to balance in framing our criminal laws. Similarly, think about the right to freedom of movement versus the right to secure enjoyment of one's property. We seek to balance those through a series of property laws that manage the ability of people to move around the landscape that we all share and yet allow people, whether they are renting or owning, to have secure enjoyment of their own home. In a similar way, the right to freedom of speech is balanced against the right to be free from discrimination and vilification.
For some parts of our community and for some political actors in particular, freedom of speech appears to be a singularly important issue—more important than any of these other rights—but there is no real basis for this. The right to freedom of speech is not inherently more important than other rights. I want to quote again from Dr Soutphommasane, who I will say has made a very significant contribution and a significant intellectual contribution to the way that we might think about these things. Back in 2014, he said:
Those who advocated for a repeal of the [Racial Discrimination Act's] provisions on racial vilification have argued that freedom of speech is paramount in our society. This proposition does not sit very well with the human rights approach for one very simple reason: human rights are indivisible and they are interdependent in character. That is to say, there is no hierarchy when it concerns freedoms. You can't simply assert one freedom and say that it is the most important one, because how we enjoy one freedom can often depend on how we enjoy other freedoms. For example, whether we can exercise freedom of conscience is purely academic if we do not enjoy security.
He went on to say, 'These sorts of nuances aren't always reflected in our debate.' And he concluded by saying, 'But they are absolutely essential in ensuring that we get the right national conversation.'
There are some in our national conversation who seek to prioritise the 'traditional' rights of the classical liberal position over rights that have been recognised more recently. And I do note that Senator Smith's contribution, which as I said earlier was very thoughtful, drew heavily on those thinkers and writers from the classical tradition. And I acknowledge how very important they are to the political tradition that we inherit as participants in this chamber. However, there have been very significant developments in the way that we think about rights—rights have been recognised since that time. While the classical liberals were focused on property, on speech and on the rights to vote, we have recently acknowledged that a healthy life within a healthy society actually also requires the right to be free from discrimination, the right to have access to health care and the right to education.
I would make the point that this prioritisation of classical liberalism's priorities over more recent concepts and ideas is quite flawed in that it ignores the historical development of the idea of rights. Classical rights themselves were not respected since time immemorial. They themselves were products of social change. They themselves were once new ideas that were bitterly and fiercely resisted in the societies in which they emerged. A static view of rights that is frozen in the early 1800s ignores the capacity of societies to change and for us to develop more sensitive and sensible frameworks for the fundamental aspects of someone's civic, economic and personal life that society is willing to protect as a right.
It is wrong to say that a right like freedom of speech is superior simply because it has an older provenance than the right to be free from discrimination and vilification. If this were true, it would have been equally true to say to JS Mill and the proponents of liberalism that the Crown's right to be free from insult was superior to the new ideas of freedom of speech. These are things that will need to be balanced against one another in a sensible national conversation, and to simply prioritise one right over all others is not a tenable basis for a sensible policy outcome.
I want to change direction and say that the burden placed on freedom of speech by section 18C of the Racial Discrimination Act is a proportionate and reasonable one. It says that anything that is 'reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate' on the grounds of race is unlawful. The courts have chosen to apply this very narrowly. It is in fact not enough to say that you have been offended, insulted or humiliated on racial grounds. In fact, the courts have sought to test it against an objective measure and have said that it must involve an act that causes serious and profound effects.
It is also true that there are limited consequences if you are convicted under these provisions. It is not a criminal provision. You cannot be convicted or thrown in jail. These provisions merely entitle someone to make a complaint to the Australian Human Rights Commission. And the dispute resolution process that is thus triggered emphasises conciliation, education and apology rather than sanctions.
Ultimately, when we are assessing legislation of this kind, we need to weigh up the importance of the rights being protected against the importance of the rights that are being infringed. It is clear why it is important to create a society without racial hatred or vilification. The type of society we want to live in is one that is cohesive and harmonious and in itself will support a robust public debate, but that cannot take place if it is undermined by the corrosive effects of racism and racial discrimination.
Despite the assertions from others in the debate, it is also the case that condoning verbal racial abuse creates a culture of acceptance that can lead to further expressions of racial hatred such as discrimination, physical violence and ostracism. There is in fact a significant body of evidence that indicates that the outcomes for people who are subject to racial discrimination and abuse are worse than they are for the rest of the population. This is particularly the case for Aboriginal and Torres Strait Islander people in Australia, where the evidence demonstrates that there is a very strong link between being subjected to racial abuse on a regular basis and poorer health outcomes, whether that is physical health or mental health. This evidence cannot be ignored when we are trying to have a conversation in the abstract about the nature of freedom of speech. It needs to be balanced against the very real outcomes for those who experience racism in their day-to-day lives.
In concluding, I will ask the question that I asked the last time that we came to this chamber to discuss this issue. Why is it so important to allow people to offend or insult people of other backgrounds? Why is this issue so continuously on the public agenda? Why is it brought, time and time again, into this chamber? What are the situations where people have had a legitimate and important public debate fouled because of the provisions in this act? I asked that question last time, and I still have not heard a credible answer. What is the harm that is actually being done by this legislation when compared with the benefits that it currently provides to those who may find themselves subjected to racial discrimination and racial abuse?
I think the reason that we have not had an answer is that the answer is, 'Never.' There is no legitimate debate, no important debate, that is being stopped by these provisions. The speech that is stopped by 18C is not productive. It never is. That act simply prevents racist and insulting statements, and it prevents speech that is on the margins—hateful, hurtful speech. Speech like this poisons the well of public debate. It does not just do harm to its immediate targets; it harms us all. It leaves us to deal with a public discourse that is fractious and corrosive and ultimately will drive us apart.