NSW Young Lawyers Annual Assembly, Sydney

Introduction

Thank you for the kind introduction, and for extending this invitation to speak with you this morning. A lot of my work as Race Discrimination Commissioner involves dealing with social questions and not the law. I will come to the law in a bit, but I think it’s important to clarify what I see as the social background to my work.

We should begin by noting our status as a multicultural society. We have succeeded as a diverse nation of immigrants. Australian society has been transformed by post-war migration. In 1947, Australia was 90 per cent Anglo-Celtic in composition.[1] Today, more than 25 per cent of Australians were born overseas, with another 20 per cent having a parent that was born overseas. Twenty per cent of Australians speak a language other than English at home.[2]

And diversity is endorsed as an important part of Australian society. The Scanlon Foundation, which conducts an annual survey of social attitudes around cohesion, this year asked a question about multiculturalism. Respondents were asked, ‘Is multiculturalism good for Australian society?’ Eighty-four per cent of respondents said that it was.[3] I don’t think you can get anywhere closer to a unanimous agreement on any proposition in a social survey than 84 per cent.

This is a ringing endorsement of how Australia has conducted itself as a multicultural society – an endorsement that isn’t confined to multiculturalism as a social reality. Multiculturalism says something about public policy and our ethos as a society as well. When we talk about multiculturalism, we’re talking about a certain approach that governments have taken to ensuring that those who arrive here as immigrants can participate on an equal footing in our society.[4]

This has been the defining aspect of Australian multiculturalism which differs from other versions of multiculturalism, particularly those in Europe. In many countries in Europe you have a very live debate about whether multiculturalism has failed. Indeed, figures such as Angela Merkel, David Cameron, Nicolas Sarkozy, have declared that diversity doesn’t work; that if you’re going to have immigrants you need to assimilate them – in a very muscular way – into an existing society’s norms, values and practices.

I don’t think we have gone down that path. And the results affirm the correctness of that approach. If you take a long view of Australian society, you don’t, for instance, see race riots as a regular feature of our life. I can refer to the experience of the United Kingdom and reel off no shortage of race riots that have taken place: Bradford, Brixton, Notting Hill, St Pauls. Or I can point to the experience of France, which in 2005 declared a national state of emergency that lasted a number of months because of civil unrest in more than 200 cities across the country. If critics of cultural diversity want to know what social fragmentation looks like, they can look at Europe.

But I don’t think that it’s right to say that Australia has had the same experience. We haven’t. We have been an overwhelming success when it concerns social cohesion. You also see the success in the lecture theatres of our universities. There’s social mobility in how we have integrated those new arrivals into our country. First generation Australians, second generation Australians: these are the people who populate our law and medicine faculties at our universities. The children of immigrants out-perform the children of native born Australians when it comes to jobs and education, on average.[5] Ringing endorsements, again, of how we have done diversity in this country.

Racism in society

You might think that, given we’ve done things so well, why do we talk about racism? Haven’t we eradicated racism? How can you have a society that has succeeded on so many different fronts and so many measures but yet still talk about racial discrimination as a problem? On all this, you could say that there is something of a paradox to Australian multiculturalism.

Racism still persists. Academics at the University of Western Sydney have found that about one in five Australians have experienced some sort of race hate talk (verbal slurs or abuse). About 11 per cent report that they have been excluded from the workplace or social activities based on their race. About 5 per cent say they’ve been physically assaulted because of their race.[6] The 2013 Scanlon Foundation survey, which I mentioned earlier, found that 19 per cent of Australians have experienced racial or religious discrimination of some kind during the past 12 months.[7] That’s a marked increase from what they found in previous years, when the number would hover between 10 and 12 per cent.

The Australian Human Rights Commission, in the year 2012-2013, also received a 59 per cent increase in the number of racial vilification complaints.[8] Although we’re talking about fairly low absolute numbers, this is a jump that we don’t usually see. And if you look at what’s happened over the past 12 months – the well-publicised incidents on public transport, for example – we have a reminder of the fact that racism in our public life hasn’t faded away.

But the racism that exists in this country is not like the racism that exists elsewhere. If you think of how racism operates in places like Europe or North America, it often has a highly organised dimension: namely, street movements or neo-Nazi skin-head organisations that conduct orchestrated violence. We don’t have that kind of racism in Australia.

The racism I refer to is also not the racism defined in our dictionaries. If you open up the dictionary for a plain English definition of the concept, it will refer to a doctrinal belief in the superiority of one race, or some races, over others. I don’t think you’re going to find many people who will subscribe to that doctrinaire view of race. In Australia, we tend to see racism in the perpetuation of certain stereotypes about minorities. It’s at that level that it exists: not in hard doctrine but in social behaviour and cultural attitudes.

One of the conversations I am eager to open up during my period as Commissioner is one about casual racism. While you don’t see violent racism in Australian society, for the most part, you still get a lower level racism - the throw away lines, the jokes. And when people are challenged about such cases of prejudice and intolerance, the response is usually predictable. It’s to say, ‘come on mate, you’re just taking that a bit too seriously’, ‘it’s just a bit of a joke, we’re having a bit of a laugh’. Or, ‘Why are you creating all this fuss? Can’t we just forget about political correctness for a moment and celebrate our robust larrikin Australian sense of humour?’

Such responses present real obstacles to our conversations about race. If the focus is on intention, or on doctrine, then perhaps you are missing the point. The problem with racism is not exclusively about intention. Ultimately, it’s about impact. It’s about how it impacts another person and how it affects their standing in society and their ability to contribute. It’s about their dignity as a human being and as a member of society.

Race and the Constitution

In my term as Commissioner there are two issues concerning the law that are fundamental to any mature debate about race discrimination.

The first has to do with the Constitution. In the next 12 months there is going to be a very important debate about the Constitutional recognition of indigenous peoples. We know this is a priority that has been flagged by the new Federal Government. But perhaps we have not had the kind of debate that you might expect yet.

What is required for the recognition of Aboriginal and Torres Strait Islander peoples in our Constitution? As the Expert Panel reporting on the issue has stated, it may not be enough just to recognise indigenous peoples in the preamble to the Constitution.[9] There may need to be more. There may need to be recognition in the actual body of the Constitution itself.

As many of you will know, there are two current provisions of the Constitution which discriminate on the basis of race. Section 25 contains the possibility that persons of particular race be disqualified from voting in state elections. Then there’s section 51(xxvi), the so-called ‘race power’, which enables the Commonwealth Government to make laws with respect to the people of any race for whom it’s deemed necessary to make special laws. Scholars and the courts have consistently agreed that the race power can be used both for and against the benefit of the people of any race.

The origin of these provisions can be found in the constitutional debates leading up to federation. There was a consensus at the time among the founding fathers of federation that an Australian government should have the power to regulate the affairs of the people of ‘coloured’ or ‘inferior’ races in the Commonwealth. So the purpose of the race power was very clear - it was about enabling parliament to control the settlement of people of colour, to confine them to certain occupations, and potentially to return them to their countries of origin. The race power was the precursor to the Immigration Restriction Act, the expression of the White Australia Policy.

Needless to say, the fact that this race power remains in force – is still the letter of the law – is remarkable for Australian society, and for all the wrong reasons. How can we as a country take pride in our liberal and democratic traditions when our Constitution still contains racially discriminatory sentiment?

The Racial Discrimination Act

The other area of law that concerns my work is, of course, the Racial Discrimination Act. This is the piece of legislation of which I am guardian and under which I am appointed as Commissioner. It is also the Act that gives legal substance to our version of multiculturalism. The Act writes into our laws that Australia is a multicultural nation, where everyone can belong on an equal footing. But it is more than just an instrument for guaranteeing equal opportunity. It is also a powerful statement about racial tolerance: namely, that we need racial tolerance, that we value civility as a cardinal virtue, that we regard social cohesion as a necessity.

Since 1995 the provisions of the Racial Discrimination Act have included protection against racial hatred and vilification, through sections 18C and 18D. Section 18C makes it unlawful for someone to do an act that it reasonably likely to offend, insult, humiliate or intimidate someone on the grounds of their race or ethnicity. Reflecting the fundamental importance of free speech, Section 18D ensures that artistic works, scientific debate, fair comment or reporting of a matter of public interest are exempt from being in breach of 18C, provided that something is being said or done reasonably and in good faith.

As many of you know, the Federal Government has made clear that it wishes to change these provisions. Exactly what it wishes to do is still unclear, but there will be debate about this issue in the coming months. And that is how it should be. It is important that we debate issues of fundamental importance. I, for one, believe that as citizens of a liberal democracy, we should be able to conduct open and robust debates and discussions. If there are limitations on what we say, they should be accompanied by good justifications.

But any debate should also pay attention to the manner in which the current racial hatred and vilification provisions actually operate. Often it’s forgotten that the fundamental value of free speech is already there, protected, explicitly, by Section 18D. Often it’s thought that the operation of Section 18C serves only to protect hurt feelings or personal sensitivities.

And the courts have interpreted the law, in the past two decades of its operation, in a consistent manner. Section 18C consists of an objective test whereby unlawful acts are those that are proven reasonably likely in all the circumstances to cause harm. It doesn’t apply to mere slights; it must involve profound and serious effects.[10] So where people have fallen foul of Section 18C in the courts, it has typically involved vilification of a standard that goes well beyond trivial name-calling.

How sections 18C and 18D have operated: court cases

Let’s look at some of the cases that have been considered by the courts on this front. You may know of the case of Jones v Toben,[11] involving the Adelaide Institute and Frederick Toben. The Adelaide Institute website alleged there was serious doubt that the Holocaust had, in fact, occurred; that it was unlikely that there were gas chambers at Auschwitz; and that Jewish people who were offended by or challenged Holocaust denial were of limited intelligence. The website also stated that some Jewish people, for purposes including financial gain, had exaggerated the number of Jews killed during the World War Two and the circumstances in which they were killed. Dr Toben was found to be in breach of Section 18C.

The case of Jones v Scully[12] concerned the placing of leaflets in letter boxes in Launceston in 1995, which made suggestions that Jews control pornography in both the US and Russia, and do so because their religion instructs them to. The leaflets alleged that Jews and the world Jewry were seeking to control the world; indeed, that they had already gained large parts of it. The respondents claimed that Jews were intent on destroying white Christian civilization and were in powerful positions to force the white race to ‘Mongrelise’. And they alleged that Jews as a group had perpetrated the myth of the Holocaust in a conspiracy to de-fraud the world. Again, the respondent in that case was found to be in breach of Section 18C.

Then there’s the Eatock v Bolt[13] case from 2011. In that case, Herald-Sun columnist Andrew Bolt wrote some articles concerning fair-skinned Aboriginal people. He alleged that these people had identified as Aboriginal for professional gain and weren’t genuinely Aboriginal. He was found to be in breach of Section 18C. Mr Bolt couldn’t claim the defence of Section 18D concerning fair comment or for a genuine purpose in the public interest because he wasn’t considered to have acted in good faith. For example, he had failed to check his facts.

It is also important to look at cases where Section 18D has prevailed as an exemption.

There’s the case of Kelly-Country v Beers[14] from 2004 which involved a comedian performing under the name of King Billy Coke-Bottle. Under this guise, he reported to be an Aboriginal person and performed a comedy monologue. I should add the performer was not Aboriginal. An Aboriginal complainant alleged that this performance portrayed Aboriginal persons as rude, stupid, dirty, drunk and unable to pronounce longer words. The court in this case found that the performances of King Billy Coke-Bottle were exempt from Section 18C because they came about as a result of the respondent’s imagination and were to be considered an artistic work, which is exempt from a breach in the law.

There’s also the case of Walsh v Hanson[15] from 2000. The complainant alleged that the contents of a book by Pauline Hanson and her One Nation Party contravened Section 18C. The book included opinions that Aboriginal communities were being unfairly favoured by governments and the courts. It was found that these opinions were not made because of race or colour. The court also stated that Section 18D would have provided an exemption because the views expressed in the book were genuinely held and formed part of a genuine political debate. The statements were put forward reasonably and in good faith, and there was a public interest at play – namely, political debate concerning the fairness of distribution of social welfare payments in the Australian community.

How conciliation operates

I also want to give you a flavour of something else that you may not come across very frequently, and that’s the character of the cases that we conciliate at the Australian Human Rights Commission. If you believe there’s a breach in the law the complaint is brought to us at the Commission and we attempt to conciliate, at no cost to the parties. We successfully conciliate a majority of cases that are brought to us.

Here are a number of examples to give you a sense of how the law operates outside of the courts – of how conciliation of complaints concerning sections 18C and 18D work. I should note by the way that I am going to use the language from the actual complaints.

In one case, an Aboriginal complainant claimed that his supervisor at the respondent government department had made racially derogatory comments in the workplace. There was a reference in the workplace to ‘putrid Abos’. The respondent department agreed to provide the complainant with an apology in this case, after conciliation, and to require the individual responsible for these remarks to undertake aboriginal cultural awareness training.

Another case involved a complainant of Indian origin who was employed with the respondent company as a sales person. The complainant alleged that one of his managers said, ‘Hey, you black man, clean my shoes’. The complainant also alleged that another manager changed the screen saver on his computer to show pictures of slums of India, laughed at these pictures, and said that the complainants race was, quote, ‘f***ed’. The complainant said that when he made an internal complaint, he was subsequently forced to resign from his job. In this case, the complaint was resolved with an agreement that the respondent provide the complainant with a statement of regret, a statement of service, and $5,000 compensation.

Finally, a third case. The complainant of Asian background claimed that a website was advocating violence against Asians. The comments on the website included suggestions that people should yell at Asians, ‘You Gook. F*** off to China’, and ‘do whatever they can to show Asians that they are not welcome in Australia’ (including ‘expressing their anger physically by laying the Gooks out’). After this complaint was brought to the Commission, the Commission contacted the internet service provider to establish the identity of the website owner. The ISP disabled the website.

In my view, over the almost 20 years of its operation, the law has operated the way it was intended to – to provide redress to people who may otherwise have no other recourse when they are subject to racial vilification and hatred. It is not a criminal provision – it is a civil provision. And, based on what those that conduct investigations and complaints at the Commission tell me, quite often when people are put in a room, at a table, face to face, the outcomes can be very positive.

Conclusion: freedom from vilification and free speech

Let me conclude with some remarks about the value of free speech. Free speech is a fundamental value to any liberal democratic society, but it has never been an absolute value. In practice, free speech has never been entirely unrestricted. We have many laws that limit out freedom of speech. We have laws that apply to defamation, laws concerning advertising, laws concerning obscenity, laws concerning fraud, we have laws concerning public order, we have laws concerning national security. All of these laws affect our freedom of speech.

If there is to be a change to our law, I think it is important as a society to raise a number of questions. Would a change to the law leave people with adequate protections against racial vilification? Would a change in the law have the effect of encouraging people to think that they can vilify and harass others on the grounds of race, in the community? And if there is to be a change in the law, what would be the overall impact on our human rights and freedoms?


[1] Department of Immigration and Border Protection, National Agenda for a Multicultural Australia. (1989) At http://www.immi.gov.au/media/publications/multicultural/agenda/agenda89/australi.htm
[2] Australian Bureau of Statistics, The “average” Australian (2013) At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Main+Features30April+2013#back3
[3] A Markus, Mapping Social Cohesion 2013: The Scanlon Foundation Surveys National Report (2013), p 34
[4] T Soutphommasane, Don’t Go Back To Where You Came From: Why Multiculturalism Works (2012)
[5] T Liebig and S Widmaier, Children of Immigrants in the Labour Markets of EU and OECD Countries: An Overview, OECD (2009), pp 17, 23. At http://www.oecd.org/berlin/43880918.pdf (viewed 1 October 2013)
[6] University of Western Sydney, Challenging Racism: The Anti-Racism Research Project – National level findings (2012)
[7] A Markus, Mapping Social Cohesion 2013: The Scanlon Foundation Surveys National Report (2013), pp 3, 34 & 38
[8] Australian Human Rights Commission, Annual Report 2012-2013 (2013), pp 124-125, 132-134.
[9] Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (2012) at http://www.recognise.org.au/final-report
[10] Kiefel J in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, cited with approval in Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105.
[11]Jones v Toben [2002] FCA 1150
[12]Jones v Scully [2002] FCA 1080
[13]Eatock v Bolt [2011] FCA 1180
[14]Kelly-County v Beers [2004] FMCA 336
[15]Walsh v Hanson, unreported, HREOC (2 March 2000)