Dr Tim Soutphommasane, Australia's Race Discrimination Commissioner, delivered the following address to the Australia Asia Education Engagement Symposium in Melbourne, Victoria, on 1 April 2014.
It was exactly 50 years ago that the most influential book written about Australian society was first published. Many of us remember Donald Horne's seminal contribution for its title: The Lucky Country. As demonstrated by the earnest embrace of the phrase as a description of Australia, many of us regard it as a note of praise. Not everyone realises that Horne used the title ironically. What he actually said was this:
"Australia is a lucky country run mainly by second-rate people who share its luck. It lives on other people's ideas, and, although its ordinary people are adaptable, most of its leaders (in all fields) so lack curiosity about the events that surround them that they are often taken by surprise. A nation more concerned with styles of life than with achievement has managed to achieve what may be the most evenly prosperous society in the world. It has done this in a social climate largely inimical to originality and the desire for excellence (except in sport) and in which there is less and less acclamation of hard work."
If not every Australian is aware of the lucky country's provenance, fewer would be aware that Horne also signalled the need for Australians to be more serious about living with Asia. Horne was scathing in his condemnation of Australia for playing "an aristocratic role in the society of Asia - rich, self-centred, frivolous, blind." Writing at a time when the White Australia policy remained in place, he believed that his compatriots needed to prepare themselves for a very different world. "My own view", he wrote, "is that the future holds dramatic possibilities for Australia which may necessarily include racial change, that this is Australia's 'destiny'." There was, however, some measure of foreboding in this projection: "It is going to happen one way or the other. It is a task that will be undertaken either by Australians, or by someone else."
I would like to offer some reflections on the relationship between multiculturalism and Australia's engagement with Asia. For a long time, we have regarded the notion of a multicultural Australia as a pre-condition of what Horne referred to as "living with Asia." Yet current debates - in particular those concerning bigotry, race and free speech - suggest there is much that we should not take for granted. As ever, it remains important for us to affirm some basic principles that should guide our domestic life as a country, as well as our cultural relationship with our neighbours, partners and friends in Asia. Namely, the principle of racial tolerance - an expression of our commitment to a "fair go" - must continue to be defended as essential to the legislative architecture of a multicultural Australia. Were it to be abandoned, or were it not to be supported wholeheartedly, I fear that one of the consequences would be a seriously diminished Australia. We could end up as an Australia that is more insular and less able to flourish in the so-called Asian Century.
The multicultural face of Australia
Let me begin by saying a little more about a multicultural Australia. There are three dimensions to understanding it: social reality, public policy and cultural ethos. The notion of multiculturalism can refer respectively to our ethnic composition as a society, to our policies concerning citizenship and the integration of immigrants, and to the values that shape our everyday cultural interactions. It is obvious to start, though, with the social reality of multicultural Australia.
The modern story of Australia is one of a nation of immigrants. Apart from Aboriginal and Torres Strait Islander peoples, all of us have been immigrants or are the descendants of immigrants. The successive waves of immigration following the Second World War, moreover, had the effect of transforming the character of Australian society. It is remarkable to think that when the Second World War came to its end, more than 90% of Australia was British or Irish in ethnicity. We no longer have such a homogenous population. Nearly half of the national population is first- or second-generation Australian. 28% of Australians were born overseas, with an additional 20 per cent having a parent who was born overseas. About 20% of us speak a language other than English at home.
The proportion of immigrants who arrive from an Asian country has also been rising. In 2001, the proportion of immigrants born in Asia was 24%; in 2011, this proportion was 33%. The majority of immigrants who arrive as skilled migrants are from a country in Asia. Yet it is hard to cast a definitive judgment of the cultural impact of Asian immigrants on the Australian national identity. I say this not because there has been a negligible total impact, but because the impact may not yet be fully known. If the composition of a society can be transformed in the space of a few generations, it can take longer to gauge the cultural effects some groups have on the prevailing national identity.
Certainly, while I understand our national love for all things culinary, it would be superficial to proclaim that waves of Asian immigration have had a profound cultural impact because we now eat Asian food or because "Modern Australian" cuisine is infused with Asian influences. And while we may sometimes define ourselves by our collective obsession with home renovation and interiors, I am not convinced that decorating one's living rooms with Buddhas or Chinoiserie is necessarily evidence of genuine cultural learning.
If there have been areas where Asian cultural influence is palpable, they would be the arts. Following the Tiananmen Square Massacre in 1989, the influx of Chinese arrivals in Australia included artists such as Guan Wei, Zhou Xiaoping, and the brothers Ah Xian and Liu Xiao Xian. Australian writing, since the arrival of Asian immigrants in significant numbers, has also taken a cosmopolitan turn. In young writers such as Nam Le, Alice Pung and Benjamin Law, we have voices speaking on behalf of a generation that has had to straddle identities as Asians and Australians.
In any case, the strength of Australia's multicultural experience has been its nation-building character. We have managed with enormous success to incorporate immigrants as citizens in the life of the nation. This success is one reason why it is hard to arrive at a crude measure of Asian immigration's cultural impact. Our multiculturalism hasn't been about promoting a nation of tribes, as sometimes suggested. Rather, Australian multiculturalism has involved a compact of rights and responsibilities. Any right that Australians have to express their cultural identity and traditions has always been accompanied by responsibilities to accept liberal democratic values and institutions: parliamentary democracy, the rule of law, equality of the sexes, freedom of religion, freedom of speech. What all this means is that the cultural impact of diversity does not extend to altering some of the fundamental structures of Australian public life.
The "Asian Century" and racial tolerance
The relationship between multicultural Australia and the Asian century is usually expressed the following way. Multiculturalism is a platform for our prosperity in Asia. The links between Australia and Asia have never been stronger. Our trade and economic activity is geared towards Asia. We travel to the region in greater numbers than ever. More than 2 million speakers of Asian languages live in Australia, including some 650,000 speakers of Chinese. As I have already mentioned, for the most part our major cities are laboratories of cultural learning and models of racial tolerance (though as some of the inflammatory commentary about foreign Chinese property buyers indicates, there are occasions when we can do better).
But just how strong is our platform for Asian engagement? One potential source of difficulty is that while our Asian-ness is visible on our city's streets, it remains invisible in those parts of our cities where the big decisions are being made. With some notable exceptions, Asian-Australians are not in the room when it matters. Where are they represented in our ministerial cabinets, our corporate boardrooms and our editorial offices? Will they be represented in such settings soon?
In its Capitalising on Culture report published last year, the Diversity Council of Australia made some sobering findings about the cultural backgrounds of Australia's corporate directors and senior executives. While it found that approximately 24% of the general Australian community was from non-Anglo-Celtic and non-North-Western European cultural origins, only 11% of CEOs, 9% of senior executives, and 7% of chairs could be described as coming from such origins. Most notably, there are very few business leaders in Australia who have Asian cultural origins: only 1.9% of executive managers and 4% of directors (compared to almost 10% of the general Australian community).
There is also the more general challenge of cultivating Asia literacy. Some have assumed that we can effectively outsource the task of engaging with the region to Asian-Australians. The task, however, is something to be done by all Australians. Currently, fewer than 6% of students in year 12 study an Asian language - hardly impressive.
Another cultural problem is that we have adopted a mercantilist tone in our conversations about Asia. We do not always recognise this danger. Without noticing it, we have fallen into the habit of making a monetary fetish out of our relationships with Asia, seeing their value only in terms of dollar signs. Thus, even when pointed criticisms are made of our failure to develop Asia literacy, critics frequently lapse into arguments about maximising the "returns" from our "investment" in Asia. It is little wonder we struggle to get students in schools and universities to take up Asian languages. We cannot seriously expect to build cultural literacy so long as we treat it as a mere instrument of economic self-interest.
Finally there remains the problem of racism. When Horne wrote The Lucky County, the problem was admittedly of a different order. The White Australia policy was still in place, even if, as he noted, "public expression of the racist strain has become weaker and weaker" and "scarcely anyone is prepared to defend the policy publicly in directly racist terms." Over the years, sentiments have evolved in the direction of equality. Until recently, very few Australians would have been prepared to offer an explicit defence of a right to express bigotry. We may recognise that people in their heart of hearts may hold racial prejudices, but we knew enough to know that we shouldn't be encouraging it. It is only one small step from having thoughts of bigotry in one's mind and expressing them as outward acts of racial discrimination.
There is currently an intense debate about racial vilification laws and the nature of bigotry. Last week, the Federal Government released an exposure draft of proposed changes to the Racial Discrimination Act. I have made it clear that I do not support these proposals. I see no compelling reason to change a section of the Act that has been in place for almost 20 years and enjoys widespread community acceptance. Indeed, I have very serious concerns about the proposed amendments. I believe that, if enacted, they would severely weaken existing legal protections against racial vilification. They would give legal sanction to the most serious forms of racial vilification if conducted in the course of "public discussion." They would, I fear, embolden a minority with bigoted views to amplify their prejudice.
It is important to reflect on this debate, as we consider multicultural Australia and Australian engagement with Asia. For one thing, the Racial Discrimination Act represents a pillar in the legislative architecture of Australian multicultural policy - it is the instrument that writes into our laws that any discrimination, exclusion, restriction or preference based on race or ethnicity is unlawful. For another thing, our cultural engagement with Asia will in large part be a function of our own domestic ability to deal with cultural diversity. Our laws have a powerful effect in expressing our values and in setting the tone of our society.
Proposed changes to the Racial Discrimination Act
Let me say a little in more detail about what has been proposed in the Attorney-General's exposure draft. The main proposed changes concern the removal of the current sections 18C and 18D of the Act. Section 18C makes unlawful an act done in public that is reasonably likely to offend, insult, humiliate or intimidate another person or group of persons on the grounds of race. Section 18D protects anything that is done in the course of artistic expression, scientific inquiry, fair comment or fair reporting of an issue - provided it is done reasonably and in good faith.
The proposed amendment would additionally remove sections 18B and 18E for reasons that have not been explained. It would make unlawful anything that is reasonably likely to "vilify" or "intimidate" on the grounds of race (though as I will explain, these terms are narrowly, even capriciously, defined). Whether an act is reasonably likely to vilify or intimidate is "to be 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." The exposure draft also contains a wide category of exception covering anything that is communicated "in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter."
These changes would constitute a radical departure. "Vilify'' is defined as the incitement of racial hatred, as opposed to its more ordinary meaning of speech that degrades or denigrates. This means that the law would no longer be concerned with the harm that racist behaviour inflicts on its target. Instead, the consideration would be the effect of the behaviour on a third party or public audience - namely, whether it could incite feelings of racial hatred. Such an incitement test has proven extremely difficult to satisfy in existing state racial vilification laws. Fundamentally, it would mean that the effects of racial abuse in degrading a target would be irrelevant, no matter how serious or severe the vilification. One could be abused by co-workers, customers or strangers in public as a "filthy coon," "stupid boong," "slit-eyed gook," "shifty Jew," "sand-nigger" or "Arab terrorist." But unless such abuse is capable of inciting a third party, the proposed law would leave the target without an avenue for seeking redress.
The definition of "intimidate," meanwhile, is confined to situations where someone apprehends physical harm; forms of intimidation that do not involve fear of physical harm would not be covered. This is again concerning, for it fails to capture the harms that are caused by racial vilification. There has been for some time now a considerable body of research that has highlighted the seriously adverse health effects of racism. Repeated exposure to racial abuse can contribute to conditions including hypertension, nightmares, post-traumatic stress disorder, and psychosis. The psychological harms of racism are also well-documented: victims can feel not only anger, but also humiliation and self-loathing. No matter how much victims of racial abuse may resist, they can often end up absorbing messages of hate and inferiority.
The introduction of a test based on an "ordinary reasonable member of the Australian community" would be another significant departure from the status quo. As the courts have interpreted the current law, whether something is reasonably likely to offend, insult, humiliate or intimidate on the basis of race is to be judged according to the reasonable member of the particular group of the community that has been maligned. But under the proposed changes, the reaction of the target of racial vilification would not be considered. There are a number of questions worth posing about the ordinary reasonable member test. Who exactly is this person? What kind of cultural background does this person have? Is this person someone who embraces cultural diversity, or someone who is sceptical of it? Does this person have prejudicial thoughts about some or all ethnic minority groups?
Professor Simon Rice of the Australian National University, a leading authority on anti-discrimination law, has described this new proposed test as "a double whammy to a victim of vilifying conduct," as it involves a "blithe assertion of a dominant cultural perspective." He argues the law should be "respectful of the lived reality of racial difference" - the fact that members of a racial minority will experience life every day, in a very real way conscious of their different heritage, colour, accent or appearance. According to Rice, "no member of the Australian racial majority - politicians, policymakers, opinion writers - can understand what it is to have one's life defined by one's difference." It is a point worth noting.
The most disturbing deficiency of the exposure draft concerns its remarkably broad category of exception. This exception covers anything that is done in the course of participating in public discussion. But the draft changes remove the current requirements in Section 18D for protected speech to be conducted with reasonableness and good faith. The proposed exception is so wide it is hard to imagine what, if any, conduct the law would prohibit. The effects of having such an exception would likely be profound. You may threaten physical harm, incite others to racial hatred, or racially abuse someone in any other way. You may do so dishonestly, unreasonably or in bad faith. Such behaviour - which is treated as criminal conduct under most state laws - is given a leave pass under the proposed law. Worse, such behaviour is given implied official endorsement by being characterised in the title of the exposure draft as "freedom of speech."
In other words, the dividing line between free speech and hate speech would be removed. There would be no distinction between venting racial hostility and conducting legitimate public debate about ideas. Yet it remains far from clear, at least to me, how the use of racial epithets or slurs - even rising to the level of incitement of racial hatred of causing fear of physical harm if occurring in the course of a public discussion - contributes to the ends of public debate that free speech in a liberal democracy should serve.
Another problem with the exposure draft is its deletion of existing Section 18B. This provision says that it is adequate for an act in question to be done for two or more reasons, if one of those is the grounds of race. That is to say, race does not need to be the dominant or substantial reason for doing the act. It is uncertain what the deletion of Section 18B would mean. It might mean that race would have to be the dominant or substantial reason for any act in question. Ultimately, the deletion of section 18B would leave a gap that would have to be filled by judicial interpretation in actual cases.
Finally, there is the proposed deletion of section 18E, the vicarious liability provision which presently applies to employers and principals of agents. Section 18E has been an important weapon in the legal armoury of those who have sought to hold internet service providers and social media platform providers to account for racist material they allow to remain published. As yet, it is uncertain what the deletion of section 18E would mean. But if it were potentially to make it more difficult for victims of racism to get internet service providers and social media platform providers to take down racist material, that would surely count as a retrograde development.
Practical effects of the proposed change
Let us consider at greater length the practical effects of what a change to the law would involve. Very simply, there would be significantly fewer instances of racist behaviour that would be captured as unlawful. Even in incidents of overt racial abuse, the proposed law would not prohibit conduct that causes offense, insult or humiliation. It would not prohibit conduct that incites serious contempt or severe ridicule of a person based on their race. The only thing that would be captured would be the incitement of racial hatred or physical intimidation.
For example, a spectator who hurls racist abuse at an athlete on a sporting ground is unlikely to be found to have contravened the law, unless the conduct is capable of physically intimidating the athlete or of inciting others to "hate" the athlete on racial grounds. It is also unlikely that someone who racially abuses a person on a bus or train would be found to have engaged in vilification, unless it could be shown that the abuse could incite others to "hate" the target on racial grounds.
It is worth noting the way that an incitement test in some state racial vilification laws has worked. Under the Racial and Religious Tolerance Act in Victoria, for example, the Victorian Court of Appeal has held that the law only covers conduct that incites "extreme" responses. For something to be found to be unlawful on the grounds of incitement, it must be "capable of causing" or have "a tendency to incite" such a response from the particular audience that has been exposed to the conduct. In another case, the Victorian Civil and Administrative Tribunal found that serious racial abuse would not be considered unlawful if it were done in the context of "preaching to the converted."
It may also be useful to consider some cases that have contravened the current Racial Discrimination Act. Under the proposed law, a case such as that involving Frederic Toben, who published on his website material denying that the Holocaust had ever occurred, together with derogatory generalisations about Jewish people as a group, could enjoy the exception outlined for participation in "public discussion." It would be immaterial that Toben could not demonstrate that he acted reasonably or in good faith (as the Federal Court had found, in light of his proven lack of bona fides and deliberately inflammatory language).
Limiting intimidation to fear of physical harm to person or property could also exclude cases where persons were not fearful of violence, but suffered harm to their dignity or quality of life. For example, it may make legal the incident in Kanapathy v In De Braekt, in which a security guard of Singaporean background at a court was viciously abused by a lawyer after trying to conduct a routine security check on her. This was a case sufficiently serious to have the lawyer struck from the roll of legal practitioners and to cause the security guard significant psychological harm. Under the proposed law, it appears unlikely that such behaviour would contravene the law. The reasons: it may be unlikely that the security guard would have felt fearful of physical harm and unlikely that the lawyer would be found to have incited hatred towards him.
To anticipate what the wide exception of the proposed law would mean, consider the circumstances in Clarke v Nationwide News. In that case, commenters on the Perth Now website were found to have racially vilified Aboriginal people. But such commenters could claim under the proposed new law that they were making comments in the course of participating in a public discussion - namely, about whether the people of Perth were "fed up of" the crime, drunkenness and bad behaviour of Aboriginal Australians, and whether or not Aboriginal Australians could behave themselves at their children's funerals. Such discourse may be of no real value to public life in Australia, but it would nevertheless constitute "public discussion" of a social issue.
The overall practical effect, then, of the proposed changes to the Racial Discrimination Act may be to permit a wide range of behaviour that has the effect of offending, insulting or humiliating another person or group of people on the grounds of race. If the proposed changes were enacted, they may also protect a wide range of behaviour that may incite racial hatred or intimidate others, given they remove the requirements for protected free speech to be reasonable or to be conducted in good faith. As long as something is done in the course of participating in public discussion, one could use racial epithets or be acting in bad faith, but invoke the protection of free speech and enjoy an exception.
What this means is that Australians would have to look elsewhere for civil remedies against racial abuse and harassment. Many, of course, would say that there would still remain avenues such as defamation. However, that avenue that is far from universally accessible to Australians, particularly minorities who come from lower socio-economic backgrounds. One of the strengths of the current law is that it allows Australians to enjoy access to justice and to hold people accountable for conduct that offends, insults, humiliates or intimidates on the basis of race (conciliation that is conducted by the Australian Human Rights Commission takes place at no cost to parties involved).
It is also cold comfort to say that those who experience racial vilification still have the means to repudiate racist speech with their own speech, or should be content with entrusting their faith in their fellow citizens to speak up on their behalf. What some of those calling for more free speech do not recognise is that racial vilification can often harm free speech, by silencing those on which it is targeted. Here, there is a very fundamental failure of human understanding on the part of some protagonists in the debate - a disappointing lack of empathy and psychological insight. These protagonists do not understand that those who are vulnerable to abuse may not have the ability or assurance to fight back with their own words. They do not understand the searing pain of racist laceration. They do not understand that a riposte does not heal the deep wound of racist abuse.
Let me conclude with two points: one technical, relating to the Racial Discrimination Act; one general, relating to the implication of the bigotry debate on multicultural Australia and engagement with Asia.
To reiterate, I do not believe there is a compelling reason to be changing the Racial Discrimination Act's provisions on racial vilification. There should be no substantive change to 18C of the Act. Thus far, only one reason has been given for amendment: the Andrew Bolt case. But is one single case, on which public opinion is sharply divided, sufficient cause for weakening protections against racism that have been in place for almost two decades? Is one single case sufficient cause for dismantling laws that have operated without controversy and have successfully resolved many hundreds of cases?
If there is to be any change to the law - and let me again reiterate, there should be no weakening of legal protections against racism - it should be to clarify how Section 18C has in fact operated. As demonstrated by much of the public debate, many people have incorrectly believed that the prohibition of conduct that offends, insults, humiliates or intimidates on the grounds of race serves to protect people from having their feelings hurt. This has not been how the courts have interpreted the provision. There may be scope for an insertion in the legislation to make clear that conduct is only unlawful if it causes "profound and serious effects" - as opposed to "mere slights" - which are to be judged against an objective test based on community standards. The protection of free speech, conducted reasonably and in good faith, could also be made more prominent in the Act - for instance, through the combination of Sections 18C and 18D in a single provision.
The legal or more technical debate, however, should not be divorced from the human and social aspects of what is at stake. We are not talking about a debate merely about legal interpretation or abstract principle. We are talking about a matter that affects how Australians enjoy their freedom to live with dignity and as equals in society. There is ultimately one question that should guide us, not only on the question of the Racial Discrimination Act, but also the question of Australia's relationship with Asia. What kind of society do we want Australia to be? What are our values and aspirations? As I think back to those words of Donald Horne written in The Lucky Country, what stands out most is not his suggestion that Australia's destiny lay in Asia, one way or the other. It is his criticism that Australia was too complacent - that Australians, as he incisively put it, were too "self-centred, frivolous [and] blind." On matters of racial tolerance and how we understand Asia, we should indeed be none of these things.
Tim Soutphommasane is Australia's Race Discrimination Commissioner and the author, most recently, of The Virtuous Citizen: Patriotism in a Multicultural Society and Don't go back to where you came from. You can listen to him in conversation with Andrew West on RN's Religion and Ethics Report.