When I commenced my term as Race Discrimination Commissioner last year, I never imagined I would be asked to comment on whether Australians enjoyed ''the right to be bigots''. It is a measure of how dangerous some of the debate about the Racial Discrimination Act has become.
As we consider the Federal Government’s exposure draft of changes to racial vilification laws, there should be one question above all that should guide our deliberation. What kind of society do we want Australia to be?
Our laws are bound with our values. They express how we aspire to conduct our lives together. Like the many communities that have spoken this week, I have very serious concerns about proposed changes to the Racial Discrimination Act. If enacted, they would severely weaken existing legal protections against racial vilification. They would embolden a minority with bigoted views to amplify their prejudice.
Such developments would come at a high price. Unfortunately, the human cost of racism isn’t always appreciated in the debate about Section 18C. Too often, the matter has been reduced to a discussion about legal interpretation or philosophical principle. But we shouldn’t be talking about things in the abstract.
Racism hurts its victims in real ways. As one Aboriginal community leader has said, ''racism makes our people sick''. Those exposed to racist abuse will testify that it can inflict mental and physical harm. It can wound your very dignity as a person. It is something that diminishes people’s freedom and their ability to participate in society.
As it currently stands, the law allows people to hold others accountable for acts that offend, insult, humiliate or intimidate on the grounds of race. This doesn’t mean that anything offensive or insulting is against the law. The law only covers acts with a clear racial basis. It doesn’t extend to trivial slights.
For someone, however, who has been abused by co-workers, customers or strangers in public as a “filthy coon'', ''stupid boong'', ''little gook'', ''shifty Jew'', ''sand-nigger'' or ''terrorist'', the current law means that you have some means for seeking redress. The legal remedies are civil in nature. When complaints are made to the Australian Human Rights Commission, an attempt is made to conciliate the matter. A majority are resolved, frequently with an apology. Very few end up in court – a mere 5 cases of 192 racial vilification complaints received in 2012-13.
The proposals put forward in this week’s exposure draft would involve a dramatic narrowing of what could be counted as unlawful racial abuse. Only those things that ''vilify'' or ''intimidate'' another person would fall foul of the Act.
On the face of it, this mightn’t sound like a radical departure. But ''vilify'' is defined as the incitement of racial hatred, as opposed to its more ordinary meaning of speech that degrades or slanders. This means that the law would no longer be concerned with the harm that racist behaviour inflicts on its target. Rather, the consideration would be the effect of behaviour on a third party or public audience. The definition of ''intimidate'', meanwhile, is confined only to situations where someone apprehends physical harm; non-physical intimidation wouldn’t be covered.
Let’s consider the practical effects of what such a change would involve. Very simply, there would be significantly fewer cases of racist behaviour that would be captured as unlawful.
Even in cases of overt racist abuse, it would be necessary to demonstrate that the conduct could incite a third person to feel racial hatred. Such an incitement test has proven extremely difficult to satisfy in existing state racial vilification laws.
Take the scenario of a spectator racially abusing a person at a football match. Under what is proposed, the only thing that will matter is whether third parties were incited. The effects of the abuse in degrading the target would be irrelevant, no matter how serious or severe the vilification.
As for intimidation, consider the scenario of someone being deterred from participating in public debate, out of fear of being subjected to verbal racial harassment. The proposed laws mean that this is unlikely to be considered intimidation.
The most disturbing deficiency of the exposure draft concerns its remarkably broad category of exception. These cover anything that is done in the course of participating in public discussion. The draft changes remove the current requirements for free 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 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. With the proposed law, you may do all these things but nevertheless invoke the protection of free 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.
Only one reason has been given for these proposed changes: the Andrew Bolt case. Bolt was found to be in breach of the Act, not because he queried the identification of fair-skinned Aboriginal people, but because he did so in a way that combined errors of fact, distortions of the truth and inflammatory and provocative language. He was unable to establish good faith. The Bolt judgment doesn’t provide a compelling reason for weakening protections against racism that have worked fairly since 1995.
Indeed, our existing racial vilification laws continue to enjoy widespread community support. A recent survey conducted by researchers at the University of Western Sydney showed that between 66 and 74 per cent of Australians agreed or strongly agreed that it should be unlawful to offend, insult, or humiliate on the basis of race. The majority of Australians have a strong commitment to racial tolerance.
This takes us back to that original question about what kind of country we would like ours to be. It is the mark of a civilised society that it protects the vulnerable from the powerful. For all that has been said about fighting hate speech with more speech, some forget that not everyone has the power to fight back against racism when it happens. It is for such people that racial vilification laws exist – to ensure that those who are silenced by discrimination at least have the assurance of knowing the law is on their side.
The proposed changes to the Racial Discrimination Act appear to favour a freedom to practise bigotry over a freedom to live unaffected by it. But as the philosopher Isaiah Berlin wrote, ''total liberty for wolves is death for the lambs''. Is this the kind of ethos that we wish to endorse through our laws?
Dr Tim Soutphommasane is Race Discrimination Commissioner.