Freedom of speech should not trump freedom from humiliation
The changes to the Racial Discrimination Act are not only bad policy, they are unfair, write Giri Sivaraman from Maurice Blackburn Lawyers and Macquarie University's Jessica McLean.
Recent proposed amendments to the Racial Discrimination Act have once again starkly highlighted that debate in Australia on racism not only remains alive, it sadly still clings to insecurities over nationhood and a desire by many to perpetuate the notion that we live in a monocultural society.
The reality couldn’t be further from the truth. Australia is made up of over 270 different cultures, speaking more than 260 languages and practising over 100 different faiths.
Yet despite this rich cultural diversity, our community sadly has been defined for much of the 20th century by the racist White Australia Policy -- a policy that aimed to bring racially homogenous people here and keep others out.
It has taken a long time to shed the ideas from that policy, but unfortunately the changes to the RDA proposed by the federal government risk dragging us back to an ugly time when racism was tolerated in our institutions, practices, in workplaces and on the streets. While that policy is now a historical fact, its echoes over time continue to taint the ideas in the current Racial Discrimination Act interventions.
The federal government wants to make it legal to offend, insult or humiliate a person on the basis of his or her race, colour, descent or national or ethnic origin. The practical impact of this will mean that the green light is given to those who believe their right to free speech will always outweigh the right of someone to exist free of insult and humiliation. The concerns regarding this have been well articulated by many -- namely, that it may create a more hostile culture where bigoted behaviour can lead to social and workplace disharmony.
The government’s amendments also propose to introduce protection against vilification on the basis of race, colour, descent or national or ethnic origin. Vilification is an uncertain term, and any proposed protection against vilification arguably does not protect against offence, insult and humiliation on the basis of race. In any event, the government wants a provision that should be termed the "Andrew Bolt exclusion", rendering this new section powerless in regards to words, sounds, images or writing communicated in the course of public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.
While there has been much debate about these proposals, one of the factors that has been largely overlooked is the inherent unfairness of racism itself. Indeed, the very notion of "race" is a culturally and historically produced category, rather than one based in any biological fact.
"Race" is a notoriously difficult concept to identify, and it is almost universally accepted that the biological differences within so-called racial groups are not significant when compared to the biological similarities that cut across these socially created boundaries.
A broader definition of race would be a combination of descent, self-identification and communal recognition -- a definition that was recognised in the case that has inspired so much controversy, Eatock v Bolt decision of Justice Mordy Bromberg. Just as you cannot choose who you descend from, it is nearly impossible to control how the community will treat you. That is, unless there are laws that create a community standard for behaviour.
A person can also not control their origin. That is one of the fundamental stupidities of racism in that it seeks to differentiate between people on the basis of factors that are out of their hands, or may have no effect on their behaviour whatsoever. As His Honour pointed out in the Eatock v Bolt decision, the eight individuals who had been offended and humiliated by the writings of Bolt did not choose to be Aboriginal. A person’s national and ethnic origins fall within that same category of characteristics one cannot choose.
Allowing humiliation of someone on the basis of race is no different to humiliating someone because they were born with a congenital birth condition. It’s inherently unfair and an excessive and unjustifiable use of free speech.
That’s why it’s important we preserve the protections that exist under s18C of the current law, subject as they are to a wide exception in s.18D.
Removing that protection simply compounds and confirms the inherent unfairness and stupidity of racism. Our federal government can and should move away from a step backwards in removing these protections by imagining a community that embraces cultural diversity and maintains measures for redress when people are discriminated against on the basis of imputed meanings of the colour of their skin.
*Giri Sivaraman is a principal in employment and industrial law at Maurice Blackburn Lawyers and Jessica McLean is a lecturer at Macquarie University.