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Populism, Race and Democracy

Race Discrimination

Speech given at The Festival of Democracy, The University of Sydney

From whence do prophets come? Many of you will know of the 1976 film, Network. In the film’s most famous scene, news anchor Howard Beale launches into an extended tirade.

For those unfamiliar with the scene or indeed the film, Beale is a longtime news anchor who has been given notice he will be taken off the air because of poor ratings. A depressed Beale declares to viewers he will commit suicide on air, during a future broadcast. Initially fired by the network for his antics, Beale gets reinstated so that he can enjoy a dignified farewell on screen. In his final news bulletin, Beale delivers a monologue lamenting the state of society:

I don’t have to tell you things are bad. Everybody knows things are bad. It’s a depression. Everybody’s out of work or scared of losing their job. The dollar buys a nickel’s worth. Banks are going bust. Shopkeepers keep a gun under their counter. Punks are running wild in the street. There’s nobody anywhere that seems to know what to do, and there’s no end to it …

While having no answers himself, Beale tells his viewers there’s at least one thing they can do. They can get out of their chairs, head to their windows, and they can shout, ‘I’m as mad as hell, and I’m not going to take it anymore!’ And so begins a crazy tale. Beale is given his own show, The Howard Beale Show, and becomes a popular cult figure, touted as ‘a prophet of the airwaves’. His television network chases higher ratings as he grows increasingly erratic. And there seem to be no limits to what the network will do to fuel Beale the angry juggernaut.

Sometimes, you get the feeling that life really does imitate art. Network may have been a satirical film made 40 years ago, but it seems to hit rather close to home today. For we live in times when outrage and sensation are the dominant impulses in our media, when our politics feeds off the anger and fear people have about their society and way of life. Few of us would be surprised to see a political party adopt as its slogan: ‘I’m as mad as hell, and I’m not going to take it anymore!’

This evening, I’d like to reflect on populism, race and democracy. Most of us would agree our debates about race, immigration and national identity have once more become fraught. Most of us have questions about whether we are able to conduct such debates with the kind of reason, civility and proportion needed. What are the prospects that we can in fact do this? And do the prospects say about the state of our democracy?

The rise of populism

In recent times, the politics of race and immigration has convulsed Western liberal democracies across a number of continents.

In the United States, Donald Trump is the Republican nominee for President – having called for a wall to be built along the border with Mexico, and having proposed a ban on Muslims entering America. Since the shooting deaths of Travyon Martin in Florida and Michael Brown in Ferguson, Missouri, we have seen the emergence of the Black Lives Matter movement. Racial tensions have come to the surface in many American towns and cities.

Across the Atlantic, we’ve seen Brexit. The referendum on Britain exiting the European Union had the feel of a plebiscite on immigration. Tellingly, the Brexit vote appeared to cause a steep rise in hate crimes tied to the Brexit vote. According to authorities, there were more than 3000 allegations of hate crimes made to UK police in the week before and after the 23 June vote. That’s a 42 per cent spike compared to the previous year.

Across the channel in France, we find Front National leader Marine Le Pen surging in the polls. She seems almost certain to proceed to the second round of voting for next year’s presidential election. As it has been widely reported, mayors from about 30 French towns along the sun-soaked Riviera have also enforced a ban on the burkini. Many have said they will refuse to accept a recent ruling by the Council of State, France’s highest administrative court, which held the ban to be unconstitutional.

Elsewhere in Europe, social anxiety and cultural fear can be clearly detected. Austria’s presidential election in May saw the far-right Freedom Party candidate Norbert Hofer come within a whisker of victory; he will have a second chance, given the election is being re-run. In Germany, for much of this year, the far-right Alternative for Germany party has been polling well above 15 per cent – and even outpolled the Christian Democrats in this week’s state election in Chancellor Angela Merkel’s home state. In the Netherlands, Geert Wilders’ Party for Freedom is leading the polls, and is pledging to ban all Islamic symbols and mosques. Across Scandinavia, anti-immigrant far-right parties have been growing in popularity, with some even partners in coalition conservative governments.

And, of course, we have seen far-right political organisations emerge, or re-emerge, here in Australia. During the past two years, protest movements targeting Islam have received significant media attention. Our new parliament contains a number of senators who support a ban on Muslim immigration, the establishment of a Royal Commission into Islam, and the abolition of the Racial Discrimination Act in its entirety.

For many observers, we are seeing in all this a pattern – a rise in rightwing populism. Where once populist politics were periodic features of modern politics, there are clear signs that they are now here to stay. In addition to the observations I’ve made about a number of Western democracies, the numbers suggest that this is true across the developed world more broadly. Data shows a clear surge in the share of the vote for populist authoritarian parliamentary parties across 34 OECD countries.

These are populist times. Yet what we mean by populism isn’t always clear.

Just about everyone agrees that the politics of populism invokes a divide between ‘the people’ and the ‘elite’ – populists speak on behalf of the people, who are citizens of virtue, against elites who are corrupted in some way. But beyond this, there can be disagreement about whether populism has some ideological character, or whether it describes something more aesthetic or rhetorical in politics.

In his recent and timely work, Ben Moffitt has helpfully described the global rise of populism as involving a political style. It features an appeal to ‘the people’ versus ‘the elite’, but does so using ‘bad manners’ rather than the conventional decorum of modern politics, and by the constant evocation of crisis, breakdown and threats.

As Moffitt highlights, populist politics has been favoured by the shift from old media to new media. In a world where reporters in tightly resourced newsrooms now have to file multiple stories a day and have less time to conduct research and interview sources, firing off a zinger on Twitter or posting a retaliatory video on Facebook can make for easy stories. The populist politician is well suited to contemporary media, where news outlets are hungry for continuous content within a so-called ‘24/7’ news cycle.

Another source of disagreement about populism concerns its sources. For many, the appeal of populism lies can be explained by economic insecurity. If populists succeed by instilling fear, it can only be because sections of society are losing out from globalisation or economic change. The conventional wisdom runs that populism taps into the anxieties of the old working class, rather than the bourgeois middle-class.

It is worth noting, though, that the evidence on this does not appear entirely convincing. In the US, for example, the idea that Donald Trump has enjoyed his political rise by appealing to economically vulnerable white people is complicated by the fact that his presidential candidacy has coincided with an improving economy and dropping unemployment. As one political writer has noted, the average Trump-supporting household draws a median income of $72,000, which is $16,000 greater than that of the average American.

Here, in Australia, the re-emergence of Pauline Hanson’s One Nation here has occurred in spite of the Australian economy not experiencing a downturn for more than 20 years. While it is true that some areas, such as those in regional Queensland, have stagnated since the end of the mining boom, the circumstances don’t readily support a simple economic reading of events. There is, though, a troubling question for anyone concerned with the rise of right-wing populism: if this is what is happening in a relatively buoyant economic period, what will happen if there was a recession with widespread consequences?

If we are to explain the contemporary rise of populism, especially that of the right-wing variety, we are safest to say that the sources are multiple. Economic anxiety may be a factor, but there has also clearly been cultural fear at play.

Across the West, the new populism has been married to an aggressive nationalism. Supporters of populist right-wing parties are united by a fear that they will lose cultural status, power and privilege. They are uniform in their hostility towards immigration and multiculturalism, which they blame for undermining unity or corrupting the national culture. They rile against a supposed ‘political correctness’ that has suffocated public debate and has subverted freedom of speech. They agitate against a ‘reverse racism’ that has seen majority ethnic or cultural groups become discriminated against in favour of minority migrant ones.

Within all this, we see readily those rhetorical elements synonymous with a populist political style: immigration and multiculturalism are things that are supposedly denied by the majority of ordinary people who love their country, the good manners sanctioned by so-called political correctness are rejected in favour of a coarser but more authentic freedom of speech, and the allegedly unfair treatment of majority groups and the ascendency of multicultural tolerance is threatening a moral and cultural crisis within society.

‘The people’, race and ‘political correctness’

There is one aspect of populism that warrants further investigation: its relationship with this concept of ‘the people’. Most of us take for granted that democracy must have something to do with the people – that idea so eloquently captured by Lincoln when he said, government of the people, by the people, for the people. But, as Margaret Canovan’s groundbreaking work has illustrated, the people has traditionally remained a topic inadequately explored. While frequently invoked in political debates, ‘the people’ has tended not to be an object of moral or political analysis.

Here, I want to trace a few dimensions of populism’s historical development. Representative politics has always, of course, had an inherent sense of populism. It has embodied the idea that democratic power ultimately resides in the people.

In its earlier forms, though, representative democracy was anything but rule by the people. Suffrage wasn’t necessarily universal. And though democratic virtue was something that emanated from the body of ‘plain folk’, this was a different group to the masses. Jeffersonian democracy in the United States, for instance, contrasted the landed virtue of the educated yeoman farmer with the elitism of the manufacturers and merchants of the cities, and the aristocrats of the Old World.

It wasn’t until later that the concept of the people became more salient. Perhaps the seminal populist democratic politician was Andrew Jackson in the United States. Jackson was the first of his kind, a trailblazing everyman hero. The first ‘western’ president elected, Jackson was a teenage combatant in the Revolutionary War, a frontier lawyer, and a celebrated military commander. Unlike other men who had been elected President, Jackson had limited formal education. His rival John Quincy Adams demeaned him as an illiterate backwoodsman, ‘a barbarian who could not write a sentence of grammar and hardly could spell his name’.

Arguably, we see in the Age of Jackson an early template for populist democratic politics. While in office, Jackson transformed the American presidency. Jackson considered himself as someone who spoke for the entire nation, a national tribune who answered to no one except the American people. During his presidency, the spread of democracy saw power transfer from educated elites – the educated yeomen celebrated by Jefferson – to ordinary people and political parties.

In addition, there was Jackson’s style. His rivalry with Quincy Adams, the son of former president John Adams, was one that saw him burnish his credentials as a man of the people up against the aristocrats of the East. There was also a ruthlessness and vindictiveness; a notoriously quick temper, a tendency to swear blood-curdling oaths and vows to destroy enemies. Jackson had a record of multiple duels and brawls. On the last day of his presidency, Jackson said he had but two regrets: that he had been unable to shoot Henry Clay or to hang John C. Calhoun, two of his great political enemies.

I’ve taken this slight Jacksonian detour just to underline a few things about the populist style. In addition to those features already highlighted, we might add that populist politics is not averse to using ‘the people’ to justify expanded political power, even authoritarian power grabs. What Moffitt has called ‘bad manners’ can go beyond matters of comportment, and spill over into an essential vindictive public nastiness.

In modern terms, such power grabs or bad manners can be directed to particular racial groups. Which brings me back to ‘the people’ and how it is defined. One reason that right-wing populism is so troubling is that its adherents tend to have a conception of ‘the people’ that is defined in ethnic or racial terms.

We see this clearly in the stance that right-wing populists take on immigration and proposed exclusions on certain immigrant groups. When right-wing populists conceive of the American people, or the British people, or the German people, or the Australian people, they do not necessarily have in mind a group that may leave room for multicultural populations. The more moderate among them may be willing to admit different ethnicities or races to a national group only to the extent that they discard their cultural differences and assimilate to the majority identity. What animates the populist understanding of the people, then, is often an organic or nativist nationalism. ‘The people’ becomes tied to a strong and authentic sense of national identity. This is a national identity defined less in terms of civic values or political culture, and more in terms of ethnic ancestry and racial character.

There is another source of tension between populism and race. It may not be as fundamental as how ‘the people’ are defined, but it nonetheless can have profound influence on our ability to talk about race.

I am referring here to populist invocations of political correctness in public debates. It has become an article of faith for many to claim that political correctness has stifled debates – that it has prevented people from saying things which they would otherwise be entitled to say. Or to put it in the language used by populists, radical and liberal elites are using political correctness to regulate political discourse by defining opposing views as bigoted and illegitimate.

While the phrase has entered into the popular lexicon, political correctness is a fiction. It has been a concept re-engineered over the past three decades to silence debates about equality and recognition. The term political correctness has pathologised civility and good manners as involving ideological censorship. Yet, in diagnosing a creeping elitist censorship, critics of political correctness are themselves seeking to regulate political discourse by defining opposing views as repressive and illegitimate. No-one these days wishes to be labeled politically correct – as too effete to be able to have a debate or discussion.

If we turn to our contemporary discourse about race in Australia, we see the effects of this kind of political engineering. We regularly have public controversies about race. But it is striking that commentators howl down criticisms of racism with cries of political correctness. We have got to the point where, often, it is a worse offence to call out racism than to perpetrate racism itself; where it is now commonplace for commentators and politicians to attack anti-racism as a form of racism. It is no accident that some commentators will automatically denounce anyone who dares to speak out against racism as a member of some politically correct urban elite, an elite intent on censoring the authentic, irreverent sentiments of ordinary Australians.

Racial Discrimination Act

For most of the past three years, we have had constant debate about section 18C of the Racial Discrimination Act. This is the section which makes it unlawful to do an act that offends, insults, humiliates or intimidates someone because of their race. Last week in Parliament, we saw a push to amend section 18C of the Act, with a number of senators seeking to delete the words ‘offend’ and ‘insult’ from the section.

In 2014, of course, the federal government did attempt to repeal section 18C, following an election pledge to do so. The proposed legislative change was abandoned after widespread public opposition to the government’s proposal. One Fairfax poll in March 2014 found that 88 per cent of people agreed that it should remain unlawful to offend, insult or humiliate someone because of their race. Other research indicated very strong majority support for the retention of the current section.

In one sense, the debate about section 18C has already been had – and has already been resolved. The Government has indicated it has no intention of revisiting the issue. Within the new Parliament, it is unlikely that any proposed amendment will succeed. And yet, agitation over the legislation continues, and will likely do so for the life of this Parliament.

As I have said consistently during the past three years, there is no case for changing section 18C of the Racial Discrimination Act. The law should remain in its current form. Even so, nothing in a democracy is ever off limits from debate. Clearly, there is renewed public interest about the Act. We can only hope that any public discussion of the Act is based on an accurate understanding of what it means and how it operates. This begins with understanding the history of section 18C.

The section was introduced to the Act in 1995. It came in response to the recommendations of three major reports and inquiries: the National Inquiry into Racist Violence, the Royal Commission into Aboriginal Deaths in Custody, and the Australian Law Reform Commission’s Multiculturalism and the Law report. These inquiries found that targets of racist violence or harassment had little recourse to existing civil remedies under common law. While the Racial Discrimination Act was introduced in 1975, until 1995 it did not contain provisions covering acts of racial hatred in public.

The rationale for section 18C was clear from the outset. Racial vilification provisions were needed because racial abuse and harassment could escalate to racial violence. It was important that the law step in.

It is essential that the law continues to play this role. The law reflects our values as a society; it sets a standard for acceptable behaviour. If, as a society, we repudiate racism, it is only right to have laws that express that commitment.

In philosophical terms, the current law is a recognition that acts of racial hatred may inflict harms on certain people.

There is the personal harm that can take place when someone is racially abused or vilified. A significant body of research, done in particular with respect to Aboriginal and Torres Strait Islander people in Australia, demonstrates the link between regular experience of racial abuse and poor health, both physical and mental.

There are also social harms associated with racial vilification. Racial vilification generates fear and distrust. It feeds conflict and ugliness. If left unchecked, it can embolden or validate discrimination. It can undermine the entitlement that every member of our society should have to being treated equally – that we can all go about our business and not have to apprehend that we will be subject to abuse, hatred or intimidation. Racial vilification damages our cohesion and decency as a society.

Many of the Act’s critics have said that section 18C goes too far – that it unreasonably restricts freedom of speech, and is too broad in its scope. I would like here to answer some of the questions frequently raised about this provision of the RDA and free speech.

Does section 18C unjustly restrict free speech?
Section 18C of the Act is accompanied by section 18D, which protects any fair comment or reporting on a matter of public interest, and any sentiment expressed ‘in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose’. Provided something is done reasonably and in good faith, any fair comment or public discussion will be exempt from being in breach of section 18C. The Racial Discrimination Act is one of the few legislative instruments in Australian law that contains an explicit protection of free speech. Given the broad protection of free speech in section 18D, we are entitled to ask: Why is that people want to make it acceptable to racially offend or racially insult others in ways that are not done reasonably or in good faith, in ways that have no genuine purpose in the public interest? What is it that people want to say, which they can’t already say?

Has section 18D actually worked in practice?
Yes. There have been numerous cases considered by the courts, where something has caused racial offence, insult, humiliation or intimidation, but has been held to enjoy the protection of section 18D. For example, in the case of Bropho, cartoons published in the West Australian newspaper, about which Aboriginal people had complained, were deemed to have been artistic work and fair comment enjoying the exemption of section 18D. The section has also prevailed in the Kelly-Country v Beers case involving a satirical performer who purported to be an Aboriginal person called ‘King Billy Coke Bottle’. In that case, the court noted that while the act may have been offensive or insulting, but it fell within the category of artistic work protected by section 18D. This was similarly the case involving a book published in Pauline Hanson’s name (Walsh v Hanson), where a court found that racially offensive material was protected as it involved a good faith engagement in public debate.

But don’t we have a right to express free speech, regardless of whether it’s racist?
No right or freedom is ever absolute. One person’s freedom ends where another person’s freedom begins. Where acts impinge upon the rights and freedoms of others, it is only right that we hold it to account. We accept many limitations of what people can say – for example, those imposed by national security laws, defamation laws, trade practices laws, and criminal summary offence laws. Laws against racial vilification reflect our society’s commitment to civility, respect and tolerance.

Why should there be a law against merely offending or insulting someone?
Section 18C is concerned with acts that offend, insult, humiliate or intimidate because of someone’s race or ethnicity. This is a different thing to acts that merely offend or insult. There is a difference between someone insulting you or offending you because you support a certain football team or because of your political ideology. That’s because racial offence and racial insult can strike at the heart of a person’s being and their dignity, the part of their identity that comes from their background and ancestry. Having a law that covers acts that offend, insult, humiliate or intimidate because of race is aimed at nipping racial hatred in the bud – at preventing it from escalating into acts that cause graver harm.

Hasn’t section 18C in practice seen trivial cases reach court?
The Australian Human Rights Commission, as the body receiving complaints about racial vilification, will decline complaints that are trivial, misconceived or lacking in substance. The typical cases involving section 18C that courts have considered indicate the kind of racial hatred that attracts the attention of the law. These include cases where Aboriginal people have been described as ‘criminal trash’ and ‘scum’ that should be used as landfill (Clarke v Nationwide News), where a man was verbally abused in a building foyer and called a ‘Singaporean prick’ and told to go back to Singapore (Kanapathy v In De Braekt), or where a website published material denying the Holocaust and expressing virulent anti-Semitism (Jones v Toben).

But don’t we go too far if section 18C makes racial vilification a crime?
Section 18C doesn’t make racial hatred a crime. It is a civil provision, not a criminal one. Racial vilification is not made a criminal offence under the Racial Discrimination Act. All the Act does is enable someone to lodge a complaint to the Australian Human Rights Commission, which conciliates complaints. Only when conciliation fails may someone take a matter to a federal court. No one can be convicted for breaching the Act, or be criminally prosecuted for racial vilification.

Shouldn’t section 18C avoid protecting subjective hurt feelings?
The courts have held that the standard to be met for section 18C to be contravened is conduct that has ‘profound and serious effects’, which are ‘not be liked to mere slights’. The test for whether an act breaches section 18C is also an objective one. The provision makes it unlawful to do an act that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate on the grounds of race and ethnicity. The fact that someone feels they have been racially offended, insulted, intimidated or humiliated is not enough to mean that there has been something unlawful. Whether section 18C has been contravened is judged by a court according to the reasonable person of the target ethnic or racial group.

Doesn’t section 18C just lead to court litigation rather than conciliation?
Most complaints under section 18C do not reach court. The majority of complaints are successfully conciliated by the Australian Human Rights Commission. Many are resolved with apologies; others involve respondents agreeing to action such as undertaking cultural training or education. In the year 2015-16, the Commission finalised 86 complaints about racial hatred. The majority were resolved by conciliation. In that year, only one complaint about racial hatred, that is section 18C, proceeded to court.

Those, then, are some of the facts about section 18C and how it operates. It is difficult to see exactly how it is that it poses the kind of threat to liberal democracy and free speech that warrants it being the most pressing political issue to be debated during the first week of the 45th Commonwealth Parliament.

Domination and democracy

If I may now offer some concluding thoughts on what all this means for democracy.

The resurgence of populist politics across western democracies, and its clear racial dimensions, present undoubted challenges to democracy. In particular, it raises questions about how democracies must deal with social change and power. Those who are attracted to the seductive certitudes of populist nationalism tend to be those who feel a loss of status and power. They want to re-assert their social and cultural standing. They resent immigrants and others whom they feel are threatening their cultural way of life.

Democracies must tread carefully on this. The philosopher Philip Pettit, in his republican theories of democracy, has written about the relationship between freedom and democracy. On a republic understanding, freedom must mean more than just enjoying non-interference, but that people are not dominated by others. It goes to the ability of people to be citizens able to make collective decisions. This is the republican idea of freedom as non-domination.

Much of populist politics sanctions a form of domination. It says to its followers and adherents that certain members of society have a right to impose their ways on to others, in the name of the people. As we have seen, such domination can frequently assume a racialised tone. Populist nationalism seeks to put certain minorities back in their place. It demands certain minorities submit to the ways that things are done ‘around here’. Or that they just put up with racism and be grateful that there isn’t a higher price paid for freedom.

This aspect of power and domination comes through frequently in debates about race and free speech. Here in Australia, we have seen populists joined, in one respect, by so-called libertarians or classical liberals. These libertarians insist that the best way of fighting racist speech is through more speech. They argue that racism should never be driven underground through laws against vilification, but should be exposed in public through constant debate. Such scrutiny will lift us the heights of enlightened tolerance. As one such libertarian proclaimed in a recent episode of ABC’s Q&A program, we should even celebrate hateful speech, because it gives anti-racists an opportunity to challenge racial hatred.

It is true that good speech can, on occasions, overcome bad speech. But what about those situations when it doesn’t? What if someone from a marginal or vulnerable social position cannot speak back? These aren’t questions that come naturally to those who may be accustomed to enjoying social power and privilege. Indeed, while the idea of flushing out racism may sound good in theory, it isn’t so simple in practice. I’ve yet to hear anyone who has been subjected to racial abuse – anyone who has been slandered, humiliated or demeaned – say that they are grateful for having the experience. Few targets of racial abuse would celebrate their experience for having brought bigotry and racism out into the open. Most would prefer for it never to have happened.

For the many libertarians who hold passionate views about the Racial Discrimination Act and free speech, the experience of racism can seem to exist only in the abstract. Many put forward their views as though it were a contribution to a high school debate or an undergraduate tutorial. Many appear to have been insulated from the reality of racism or the harms of vilification. If we are talking about lifting people to new heights of tolerance, let’s remember the burden of lifting doesn’t fall on everyone equally.

What we see here is the emergence in our political culture of a particular aesthetic understanding of freedom: one that elevates racism into a strangely sublime experience. Edmund Burke once explained the sublime the following way:

…if pain is not carried to violence, and terror is not conversant about the present destruction of the person … they are capable of producing delight; not pleasure, but a sort of delightful horror, a sort of tranquillity tinged with terror; which, as it belongs to self-preservation, is one of the strongest of all the passions.

It is revealing that among populists and libertarians alike that we hear so much about the freedom to unleash bigotry, but not much at all about the freedom of those subjected to such delightful horror.

There is another challenge to our democracy. Most of us would accept that democracy isn’t just about elections, but also about ethos. A democracy involves people – citizens – acting in a certain way. In a functioning democracy, we must have citizens who deliberate. They must be able to weigh the evidence, to have reasoned judgement, to know fact from fiction and right from wrong. Citizens must able to resist the windy exhortations of the demagogues. They think for themselves rather than act on a command to run to their windows and yell, ‘I’m as mad as hell, and I’m not going to take it anymore!’

This doesn’t mean that democracy is a sterile business. Citizens don’t act like cold, calculating machines. Citizens are still men and women who have blood running through their veins. They are people who are moved by belief, get angry at injustice, and are inspired by beauty. But we assume that democratic citizens don’t let their emotions and prejudices spill over. We assume that they will conduct debates that are grounded in facts and reason. We assume there will be a measure of civility and proportion.

The global rise in populism is a direct challenge to this. What happens when people don’t respect reason, or refuse to respect others? What happens when people are willing to push the limits of tolerance for political gain? And what happens if today’s right-wing populism may somehow become the respectable opinion of tomorrow’s mainstream? I’m not yet sure that we know the answers, or, if we do, that we will like the answers. But, as with any democracy, we get the government and the politics we deserve.

Dr Tim Soutphommasane, Race Discrimination Commissioner