Speech to the Affinity Intercultural Foundation

Check against delivery

May I begin by thanking the Affinity Intercultural Foundation for this invitation. This isn’t the first time I have had the pleasure of joining Affinity for an event, and I know it won’t be the last. I acknowledge the work of Ahmet Polat and Affinity in seeking to build harmony, and doing so through dialogue between different cultural and faith groups.

The work of dialogue has never been more important in our society. It is the mark of a flourishing liberal democracy that it can deal with difference and disagreement, not through violent means but peaceful ones; that it can have a civil exchange of ideas, based on fact and reason; that its citizens can grow wise through deliberation.

Yet we are seeing some profound challenges to our liberal democratic order today. Extreme forms of populist nationalism have re-emerged across Western liberal democracies. Many believe we are seeing a new epoch of post-truth politics. Anger appears to be the dominant political currency. Our marketplace of ideas now resides as much within the carnival of social media as it does within the journalism of traditional media. The stability and success of pluralist societies are now coming under strain. 

How liberal democracies must deal with this is a fundamental question. But here, within Australia, it is important that we retain a sense of proportion in our public conversation about multiculturalism, immigration and race. While Australia isn’t immune to international developments, its experience also has particular characteristics. We remain an exemplar of multicultural success. We can deal with threats to tolerance and harmony from a position of strength.

This afternoon, I’d like to expand on this claim to strength – and also reflect on some of the recent debates we have had concerning racial discrimination. There can be no doubt that we find ourselves in challenging times. But those of us who care deeply about racial tolerance and cultural harmony must have confidence that our society can rise to the challenge.

Multicultural Australia

Australia’s multiculturalism is the subject of perennial debate and discussion. On the one hand, official statements about Australian national identity invariably mention that we are a multicultural society – even that we are the most multicultural society in the world. On the other, political and social commentators frequently question multiculturalism and its success. Some say that multiculturalism does more to divide than to unite Australians. Or that it encourages a form of political correctness that stifles robust public discussion of cultural issues.

These critical sentiments are often strongly expressed, but they are detached from Australian society’s views on the matter. For there is strong and emphatic support in the Australian community for multiculturalism, cultural diversity and immigration. The evidence on this is unequivocal.

Many of you will know about the Scanlon Foundation’s annual study of attitudes concerning social cohesion. The study surveys a nationally representative sample of people each year. Last year, the Scanlon Foundation found that 83 per cent of its respondents agreed that multiculturalism is good for the country. It was 86 per cent in 2015 and it was 85 per cent in 2014.

In addition, about two-thirds of the Australian population believe that the number of migrants we take in is currently about right or is, in fact, too little. If you compare this public sentiment with what exists in other liberal democracies – say, in Europe or in the United States – you will find that the reverse would hold. In most other Western liberal democracies, you are likely to find that two-thirds of people believe migration should be cut or is too high.

All this shouldn’t for a moment mean that questions about multiculturalism and immigration are beyond debate. In a liberal democracy, no question is ever off limits from debate. The facts would seem to indicate, however, that a clear majority of Australian society is relaxed and comfortable with our cultural status quo.

Some of you may be surprised. It mightn’t accord with the picture we glean from public commentary. Professor Andrew Markus, a social scientist at Monash University who is the author of the Scanlon Foundation’s social cohesion reports, has recently observed that minority anti-immigration and anti-multiculturalism voices are undoubtedly louder and better represented within our public debates. To date, however, such presence hasn’t translated into wider public hostility to immigration and multiculturalism.

This doesn’t give us cause to be complacent. Whereas a strong economy can sustain higher levels of immigration and diversity, a weaker one may not. It is obvious that fears about terrorism and national security have the potential to affect our social cohesion. And it is open to ask as well whether public concerns about the affordability of housing could also have some bearing on perceptions about immigration.

For those of us who are friends of cultural diversity, it is incumbent that we consider how we express our multiculturalism. Too often, we can take for granted that we have a shared understanding of what multiculturalism involves.

In the first place, we must speak in favour of a muscular form of Australian multiculturalism. By this I mean that Australian multiculturalism has been an expression of liberal citizenship and an exercise in nation-building. Cultural diversity goes together with individual liberty: everyone should have a right to express their cultural heritage and identity. The central proposition here is that we can leave room for multiple expressions of Australianness. There is no one authoritative way for you to express being Australian.

There are, however, limits on cultural expression. Our multiculturalism hasn’t involved cultural relativism. It doesn’t sanction members of our society to justify certain things because their culture permits them to do so. We have granted all members of our society a right to express their cultural identity and heritage, but that has always been accompanied by civic responsibilities to adhere to the rule of law, to commit to parliamentary democracy and to accept equality of the sexes and freedom of speech.

This need for common ground has been a constant in official Australian multiculturalism since its inception. As affirmed in the Federal Government’s recent multicultural statement, any cultural diversity must be based on the values of respect, equality and freedom: ‘ours is a society founded on a liberal-democratic tradition in which the fundamental rights of every individual are inviolable’.

Multiculturalism, in other words, doesn’t exist as a rejection of Australian society but as an affirmation of it. In this respect, our version of multiculturalism has had a distinctive quality. It can be set apart from the multiculturalism that has been adopted in name in other liberal democracies – for instance, some of those in Europe. Far from being about a mere assertion of minority identities, Australian multiculturalism has been about integration, and an expression of liberal citizenship.

The Racial Discrimination Act

At the federal level, Australian multiculturalism finds its legislative expression through the Racial Discrimination Act. The Act, which came into effect in 1975, prohibits racial discrimination and guarantees equality before the law regardless of race.

During the past four years, we have had significant 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.

As many of you would know, the Parliament recently debated proposed amendments to the Racial Discrimination Act – amendments which the Senate blocked last month. Before I come to that matter, it is worth outlining some of the background to the proposed amendments put forward in the Human Rights Legislation Amendment Bill.

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. 

Last November, the federal government revisited the issue by announcing the Parliamentary Joint Committee on Human Rights would conduct an inquiry into freedom of speech. The Joint Committee was charged with considering whether there should be reforms to Part IIA of the Racial Discrimination Act and the complaints-handling process of the Australian Human Rights Commission.

The inquiry was announced following some public interest and debate about section 18C, sparked by a case involving Ms Cindy Prior and a number of Queensland University of Technology students, and also a complaint relating to a cartoon about Aboriginal fathers by the late cartoonist for The Australian, Mr Bill Leak. In these respective matters, the Federal Circuit Court summarily dismissed the case brought forward by Ms Prior and a complaint lodged against Mr Leak was withdrawn.

It has been my view and that of the Australian Human Rights Commission that Part IIA of the Racial Discrimination Act strikes an appropriate balance between freedom of speech and freedom from racial vilification. Over the past twenty years or so, courts have consistently interpreted section 18C to apply only to acts have serious and profound effects, which aren’t to be likened to mere slights. Based on the judicial interpretation of the Act, the mere claim of having been racially offended, insulted, humiliated or intimidated isn’t determinative of a breach of section 18C occurring; rather, a court must consider whether the reasonable person of a target racial group would have found it to be racially offensive, insulting, humiliating or intimidating. Finally, and most crucially, since its introduction to the Act, section 18C has been accompanied by section 18D. This section exempts anything from breaching section 18C if it is artistic work, any statement or discussion done for any genuine academic, scientific or other genuine purpose in the public interest, and any fair comment or fair reporting – provided they were done reasonably and in good faith.

In its final report, handed down at the end of February, the Joint Committee made no recommendations for any concrete change to section 18C. Instead, it offered a range of options on potential reforms to the section that had been canvassed through the inquiry and supported by at least one committee member.

After considering the Joint Committee’s report, the government proposed to amend the Racial Discrimination Act – namely, to remove the words ‘offend’, ‘insult’, and ‘intimidate’ from section 18C, and replace them with ‘harass’. It also proposed inserting an ordinary ‘reasonable person’ test for determining whether alleged offensive conduct would breach section 18C.

In my view as Commissioner, these changes would have involved a weakening of the Racial Discrimination Act. Had it been enacted, the proposed amendment to section 18C would have left Australians who had experienced racially offensive, insulting and humiliating acts of a serious kind without a legal remedy. A change to the law would also have created some uncertainty, as the full effect of having ‘harass’ in section 18C wouldn’t have been clear until there was judicial consideration of the provision. Moreover, there was a significant risk that a change to the law would have signalled that it would be acceptable to racially offend, insult or humiliate others. There were also difficulties, in my view, in having an ordinary reasonable person test, which may not do justice to the lived experience of racial difference.

There were other procedural changes proposed by the government – namely, to the Australian Human Rights Commission Act, which related to the Commission’s handling of complaints under the Racial Discrimination Act and other legislation concerning sex, age and disability discrimination. Many of these proposed changes reflected recommendations made by the Commission, which it believed would assist it in being more effective in dealing with vexatious and unmeritorious complaints.

Late on 30 March, the Senate voted down the proposed amendments to the Racial Discrimination Act. While substantive changes to legislation concerning racial vilification were rejected, the parliament did legislate for a number of process changes relating to the Commission, in the form of amendments to the Australian Human Rights Commission Act.

Taking stock

It is hard to think of any legislative provision that has been so extensively debated as section 18C. In the parliamentary debate about the proposed changes to the Racial Discrimination Act, we saw a divergence of views, which those following the non-stop debate during the past four years will find readily familiar.

According to those supporting legislative change, the current form of section 18C imposes an unreasonable restriction on freedom of speech. For example, in his second reading speech introducing the bill to amend the Racial Discrimination Act, the Attorney-General characterised the current wording of section 18C as ‘political censorship, pure and simple’ and ‘an inappropriate barrier to people expressing their legitimate opinions’. Senator Bernardi described it as ‘a weapon of mass destruction in the battle for freedom in this country’.

By contrast, those opposing the changes made clear their concerns about the risk of giving licence to racism and about setting a standard for society. Senator Dodson claimed that amending section 18C ‘will not promote freedom of speech – it will promote racial hate speech and racial discrimination’. Senator McKim reflected that changing section 18C would ‘send a message out in the Australian community that it is now easier to say racist things and be racist in Australia’. Meanwhile, Senator Lambie said that ‘section 18C does not restrict freedom of speech; it is about providing a benchmark for human decency’.

If we were to pause and reflect on what this debate has demonstrated, a few things are clear.

First, it is clear that there is strong community support for the current wording of the Racial Discrimination Act. A Fairfax Ipsos poll last month of 1400 voters found that 78 per cent of Australians believe it should be unlawful to offend, insult or humiliate someone on the basis of their race or ethnicity. This finding echoes an Essential Research poll in February, which found that over 75 per cent of respondents did not believe people should be free to offend, insult, humiliate or intimidate others on the basis of race. The poll found that only 10 per cent of Australians believe that people should have the freedom to ‘insult’ and ‘offend’ people on the basis of race.

When such findings are considered alongside the state of public opinion concerning multiculturalism, it is clear there is very strong support both for multiculturalism and for racial vilification laws in their current form. This is arguably no accident. Australians, by and large, embrace our multiculturalism. If we support multiculturalism, it follows that having in place laws against racism is essential. If we reject racism, it is only appropriate that we have laws that prohibit racism. Laws exist, at least in part, to set a standard for what is acceptable public conduct.

There is another aspect to community views. It should be clear that the majority of Australians recognise that freedom of speech, as with all freedoms, is not absolute or unqualified. As the saying goes, my freedom ends where your freedom begins. Any right to express bigotry must not exist at the expense of a right to live free from bigotry’s effects.

Freedom also doesn’t exist in a vacuum. As a liberal democracy with a multicultural character, we value freedom alongside civility, tolerance and harmony. The expression of one’s freedom can have an effect on another’s freedom. In the case of racially charged speech, one person’s exercise of speech could well harm the freedom of another. One of the effects of racial vilification is that it can silence those on the receiving end: the victims of racism may find the experience makes it more difficult for them to exercise their freedom. We can’t assume that people who are confronted with racist speech will always have the ability to speak back, particularly if they have to speak back from a marginal position.

Finally, the debate about the Racial Discrimination Act has revealed the ongoing political contest about who constitutes ‘mainstream Australia’. On this question, it is worth noting the public comments of parliamentarian Ian Goodenough, who chairs the Parliamentary Joint Committee on Human Rights:

Many mainstream Australians are resentful of the emerging culture of political correctness, which prevents them from expressing their opinions on certain sensitive cultural issues in workplace and social settings where minorities are involved. … Anecdotally, there is a perception that certain ethnic minorities are afforded greater protections from constructive criticism than mainstream Australians through political correctness. Rightly or wrongly, this perception does exist, and I would like to see the playing field levelled.

Yet who exactly is in the mainstream and who is in the minority? If we are to consider the proposition that there is a view out there on racial vilification that can be described as ‘mainstream Australia’, should we consider that to be held by those of a majority ethnic or cultural background? Or should we be considering the mainstream to be represented by the three-quarters of Australians who believe it should remain unlawful to offend, insult, humiliate or intimidate someone on the basis of their race? And by the nearly nine-tenths of Australians who believe multiculturalism is good for the country?

Perhaps one telling lesson from the debate we’ve had on the Racial Discrimination Act is that mainstream Australia may no longer be the group some people have in mind.

Meeting our challenges

Let me offer some reflections in conclusion. There remain significant challenges that we face on racial tolerance and community harmony. There are signs that we may well be living in an age of populist nationalism. Such nationalism leaves little room for diversity. It regards immigration not as a source of invigoration for nations, but rather as a source of contamination.

Such nationalism can have powerful appeal. It’s not just that it appeals to fear and anxiety, but also to a sense of cultural loss – a nostalgia that people may have for their country of old, an older way of life that appears to some modern eyes to possess greater integrity and authenticity. It’s also powerful because nationalism of a certain kind can encourage people to believe there should be no limits or restraints on what can be done in the name of one’s nation.

Recently, I read about Rhythm 0, a work of performance art by artist Marina Abramovic in 1974. The work, performed in Naples, involved Abramovic standing still for six hours while the audience was invited to do whatever they wished, using any of 72 objects she had placed on a table.

While the audience began tamely, with members of the audience touching her or rearranging her body, by the third hour all the artist’s clothes had been cut from her with the razor blade that was one of the objects on the table. By the fourth hour, blades began cutting her skin, and various assaults of a sexual nature were carried out. At one stage, a loaded gun – also an object on the table – was thrust to Abramovic’s head and her own finger was being worked around the trigger, prompting a fight to break out between factions in the audience.

It is an extreme example. Nonetheless, it illustrates how, when given the licence to do as they please, some people can quickly choose to dehumanise, humiliate and even assault others.

Returning now to racial tolerance, as I’ve said, the evidence shows that the vast majority of Australians endorse our multiculturalism and repudiate racism. The state of our multiculturalism remains strong. Yet I fear there is a small minority who may act upon their intolerance or bigotry, if given the permission to do so.

We must never take our tolerance and harmony for granted. And all of us have a responsibility to remain vigilant and do our part to set the right standard for our society. This is, naturally, a task for our political leaders. But other leaders in our community – within government, business, education, civil society – also have a part to play. We all have our part to play.