By Amy McQuire, April 22 2014, Tracker Magazine.
NATIONAL: Race relations have hit a new low in this country. The nation’s top lawmaker is now seeking to weaken one of the few protections against racial vilification afforded to minorities, to protect the rights of bigots. And the Human Rights Commissioner is paving the way. AMY MCQUIRE* looks at the history of the Racial Discrimination Act’s section 18c and the current debate.
As a member of Parliament, Senator Nova Peris – the first Aboriginal woman ever elected to federal parliament in its 113-year history – is afforded a freedom of speech granted to few other Australians.
The federal, state and territory parliaments are the only public places in the country (outside of a courtroom, although there is still contempt of court) where freedom of speech has no legal limitations.
It’s called parliamentary privilege.
Senator Peris can say what she wants free from the fear of defamation.
She’ll be protected legally, if not politically. This immunity is important but it can be abused.
It has been used to slander women and in one case, to make lurid, unfounded allegations about a respected High Court judge.
For instance, conservative columnist, Janet Albrechtsen was called a ‘skanky ho’ by Mark Latham.
Michael Kirby, QC, was accused of picking up rent boys in his Commonwealth vehicle by Liberal Senator, Bill Heffernan.
This privilege is enjoyed by all members of Parliament.
But given only four Aboriginal people, and precious few other representatives from other ethnic groups, have ever been elected to our national parliament, this freedom of speech shield has been largely the sole province of privileged white men.
Earlier this month, Senator Peris questioned a member of that privileged elite, federal Attorney General George Brandis, over the government’s plans to remove section 18c from the Racial Discrimination Act.
The section makes it unlawful for a person to do an act, otherwise in private, that is reasonably likely to offend, insult, humiliate or intimidate another person or a group of people on the basis of race, colour or national or ethnic origin.
The following section – 18D – includes exemptions to this clause for artistic works, scientific debate and fair comment on matters of public interest, provided they are said, or done, reasonably and in good faith.
Brandis has claimed 18C needs to be amended to protect freedom of speech in the wake of the Andrew Bolt case in 2011 (but more on that later).
Senator Peris began her question by quoting from the first Aboriginal lower house MP Ken Wyatt, a member of the government and until now, a politician who rarely strays from the party line.
But on the issue of 18C he is reportedly considering crossing the floor if the government’s proceeds with its proposals.
Senator Peris quoted Mr Wyatt: “What I wouldn’t like to see is a regression that allows those who have bigoted viewpoints to vilify any group of people at all.”
She continued: “won’t removing section 18c facilitate vilification by bigots?”
Senator Brandis’ response could have been written for political satire.
“People do have the rights to be bigots, you know,” he informed her. “In a free country, people do have the right to say
things that other people find offensive, insulting or bigoted.”
His comments drew immediate ire from Opposition Senators.
Their anger spread like a contagion.
Aboriginal advocacy groups, ethnic community organisations, legal groups and non-for-profit organisations were all quick to condemn his stance.
The National Congress of Australia’s First Peoples co-chair Kirstie Parker led the chorus.
Congress, she said, was “horrified to consider the kind of Australia that could grow out of what is now being proposed”.
“We know intimately the impact that racist abuse has on our peoples. It undermines our sense of personal security and safety, can disenfranchise us even further from the rest of society, and literally makes us sick,” she added. “The Parliament would make history of entirely the wrong kind if it moved to protect racist attacks masquerading as public commentary or debate. There is no nobility and no greatness in placing unlimited rights to free speech above the already limited rights of the vulnerable to be free from racist abuse.”
The New South Wales Aboriginal Land Council* Chairperson, Craig Cromelin called on Senator Brandis to withdraw his claim that people “have the rights to be bigots”.
“It is astonishing that our top law maker seeks to passionately defend the right of people to be bigots than the rights of the most marginalised people in our society,” he said.
Despite his comments being almost universally condemned and lampooned, Senator Brandis has forged ahead, outlining his plans in a media release.
The approved reforms, he said, would “strengthen the Act’s protections against racism, while at the same time removing provisions which unreasonably limit freedom of speech.”
The proposals include the repeal of section 18C as well as 18B, 18D and 18E.
It would be replaced with a section making it unlawful to do an act, otherwise in private, that is reasonably likely to “vilify another group of persons; or to intimidate another person or group of persons” on the basis of race, colour, nationality or ethnicity”.
But the Brandis proposal includes the following, very narrow, definition of the word ‘vilify’ and ‘intimidate’.
“Vilify means to incite hatred against a person or a group of persons; intimidate means to cause fear of physical harm.”
The act must also be “reasonably likely” 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”.
It also “does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”
So basically, racial vilification must be a physical threat or an incitement to racial hatred. An offence would be determined by the standards of an ordinary member of the Australian community – the majority of whom are more often the perpetrators, not the victims, of racial abuse.
If you think that’s outrageous, consider the fact these proposals were watered down after heavy debate in the government party room.
As the public debate raged, a number of government backbenchers told the media the original Brandis proposals contained in an original draft exposure bill he had presented to his colleagues had been watered down.
One accused Brandis of drinking too much “right wing Kool Aid.”
This served to fire up public debate. Labor’s Shadow Attorney General Mark Dreyfus responded.
“It is now clear,” he said “the original version of the exposure draft was ‘much worse’ according to (Senator Brandis’) own Cabinet colleagues.
“Given his extreme changes give the green light to racism and hate speech, what on earth did they look like beforehand,” he added.
Australia’s Race Discrimination Commissioner Tim Soutphommasane said the proposals, if passed into law, would “severely weaken existing legal protections against racial vilification, if expressed in the course of participating in public discussion.”
“They would, I fear, embolden a minority with bigoted views to amplify their prejudice,” he added.
But his colleague – the Human Rights Commissioner, and ex head of the right wing think tank, the Institute of Public Affairs, Tim Wilson, handpicked by Prime Minister Tony Abbott to the position, was quick to defend the reforms. He claimed the current situation made it unfair for those who wanted to use loaded language against other ethnic groups.
Mr Wilson told the Sydney Morning Herald, it was a “bizarre” situation that outsiders of ethnic groups couldn’t use slurs that those inside that ethnic group could.
He agreed this included the use of the word “n**ger*.
So how did we get to the point where the Federal Attorney General is defending the rights of bigots , and the Human Rights Commissioner is complaining that real discrimination lies in the fact not everyone can use racial slurs?
It seems we’ve hit a new low. But we’ve debated this before.
In 1994, Michael Lavarch was the federal Attorney General in the Keating Labor Government.
Two years earlier, the Keating government had proposed making the incitement of racial hatred a criminal offence in amendments to the Crimes Act, as well as in proposed civil provisions against racial vilification in the RDA.
The 1992 proposals would have made it an offence to knowingly perform a public act deemed racially offensive with the intention of inciting hatred. The maximum penalty would have been 12 months jail time.
Mr Lavarch was taking up the baton from the previous Attorney General following the 1993 election. He told Parliament in October 1994:
“Obviously the question of racial hatred or racial vilification laws is a difficult one.
“It is difficult in as much as it requires a very careful balancing between the fundamental importance of free speech and freedom of expression against the right of all people in our society to live free of taunts, attacks or violence based or motivated on the grounds of race.
“Ensuring freedom of expression is not unduly restricted while achieving that sort of security which underpins very much the basic racial harmony in Australian society has been the dominant factor in the government’s consideration of this matter.”
Mr Lavarch didn’t just want to make it a civil matter – he wanted to apply criminal penalties to those who incited racial hatred.
“This legislation will have criminal sanctions to deal with the most extreme instances of the incitement of racial hatred,” he told Parliament.
“It will, however, certainly be consistent with experiences that we have gained from the operation of legislation in other parts of Australia, most notably in New South Wales where such legislation has now been in place for some five years. We have taken great note as to the terms of that legislation, the effectiveness of it, and any implication it has on the question of free speech.”
Mr Lavarch’s original proposals included amending the Crimes Act to include three criminal offences dealing with public racial threats against people and property and against public acts made with the intention of inciting racial hatred.
The original Racial Hatred Bill 1994 would amend the RDA to make racial vilification unlawful, and also roll out a mechanism for redress through the Human Rights Commission.
According to Mr Lavarch, the government’s plans were based on the recommendations of several reports calling on strengthened protections against racial vilification, including the National Inquiry into Racist Violence, Multiculturalism and the Law and the Royal Commission into Aboriginal Deaths in Custody.
His reforms were based on the New South Wales model, which was at the time, the best mechanism against racial vilification in the country.
“All three of those reports identified a deficiency in Australia’s human rights regimen and recommended the Racial Discrimination Act should be amended so that complaints of racist behaviour could be made and conciliated and subjected to the processes of the Human Rights and Equal Opportunity Commission,” Mr Lavarch told Parliament in 1994.
“The inquiry into racist violence also recommended that there be some behaviour which should be subjected to the provisions of criminal law.
“These conclusions have been shared by a number of state governments in this country, notably, the government of Nick Greiner in New South Wales in 1989 and the governments of Western Australia, Queensland and the Australian Capital Territory.
“All these parliaments have passed legislation which, to some extent, either through their criminal laws or through their civil provisions of their human rights bodies, have established regimes which allow racist violence and incitement of racial hatred to be covered by the law.
“In recent times – fortunately, these are not common occurrences but, unfortunately, they are not unknown… it is to address that problem that the government is proposing to this parliament that there should be specific legislation to deal with the issue of incitement of racially based violence and the threats which flow from that…
“These are difficult issues. People can obviously come to different conclusions as to how this problem should be best addressed. However, I do believe that, while confronting racism, arguing about it, and education on it, are very much part of the proper response…. There is some conduct that is so damaging in its effect that there needs to be specific legislation and, in some cases, criminal law legislation to deal with it.”
The Racial Hatred Bill passed the lower house in 1994, but was heavily opposed by the Liberal-Nationals, including by the then backbencher Tony Abbott. Mr Abbott believed the criminal provisions were too far-reaching.
“This law makes mere incitement a criminal offence. There does not need to be any incitement to violence against persons or property… you can go to gaol for mere word,” he told Parliament.
He also was concerned about the civil amendments to the RDA.
“Under this bill… all that is necessary to create a civil offence under this bill is for someone to have hurt feelings.”
The bill went to a Senate committee and then to the Upper House, where it was heavily opposed by the Coalition, including Senator Amanda Vanstone, who would later become an Aboriginal affairs minister in the Howard government.
The Coalition favoured a $10 million education campaign instead. But Senator Vanstone also released an exposure draft of a Coalition Bill, which kept the criminal provisions, although the Attorney General would have to consent to prosecution.
The Coalition at the time also modelled its alternative bill on New South Wales.
But it continued to oppose civil sanctions in the RDA.
“Our exposure draft creates a criminal sanction for inciting hatred, but it associates the incitement to hatred with violence,” Senator Vanstone said at the time.
“For our exposure draft we chose to follow very closely the legislation in New South Wales, which by all accounts has worked very well. We think that that is the appropriate criminal sanction to have: not one that bans free speech full stop but one that bans speech that incites violence against property or person. That is where to draw the line in this matter.”
In contrast, the Greens, which held the balance of power in the Senate, opposed the criminal provisions to the Crime Act, but welcomed the civil sanctions to the RDA.
With the criminal provisions removed to secure the Greens vote, the Racial Hatred Act passed in 1995.
Since then, these amendments to the Racial Discrimination Act have remained encased in the legislation and are used by Aboriginal people and minorities across Australia as a mechanism against racial abuse and vilification.
In fact, Aboriginal people recorded the highest number of complaints to the Human Rights Commission last year.
It’s hardly surprising given the level of casual and overt racism against First Nations in this country.
You only have to go to any video on YouTube dealing with Aboriginal affairs to find a sea of racist abuse against our peoples.
For example, in 2010, Aboriginal man Steve Hodder Watts won a small victory when Google agreed to take down its link to a US-based website publishing obscene racial abuse, by taking his complaint to the Human Rights Commission.
These laws represent the few protections Aboriginal people have against racial discrimination in this country.
And they remained relatively uncontroversial until Andrew Bolt was brought before court in 2011.
When Michael Lavarch introduced these amendments to the RDA back in 1994, he could never have guessed they would be used successfully to protect his future wife – prominent Aboriginal lawyer and academic Professor Larissa Behrendt.
Prof Behrendt was one of 9 Aboriginal plaintiffs who used section 18c to take Australia’s chief Stolen Generations denier Andrew Bolt to court over two columns he wrote for the nation’s highest circulating newspaper – the Herald Sun.
The columns were a vicious attack on the character of the plaintiffs, who also included Pat Eatock, Anita Heiss, Mark McMillan, Geoff Clark and Wayne Atkinson among others.
They were painted as fraudulent for identifying as Aboriginal despite being fair-skinned; Bolt alleged they were claiming Aboriginality to gain career benefits.
In a controversial ruling, Judge Mordecai Bromberg found in their favour.
He found Bolt had contravened Section 18c, and his defence was weakened by sloppy journalism.
All of the plaintiffs were Aboriginal from birth, had not chosen to claim their Aboriginality, and had risen to the heights of their careers because of hard work and determination.
Judge Bromberg found “Aboriginal persons were reasonably likely, in all the circumstances to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles”. He also found the articles had the potential to prevent other young Aboriginal people from identifying out of fear.
A correction was ordered in the Herald Sun, but there was no apology.
Bolt was able to continue writing his column in the most widely read newspaper in the country, he was given his own television show and is invited regularly on radio station 2GB.
It’s on these platforms that he finds an audience to protest the supposed martyrdom of his freedom of speech rights on the fiery stake of section 18c.
Most recently he forced an apology out of Aboriginal academic Marcia Langton, who insinuated he was a racist in a debate on ABC’s Q&A centring on the changes to the RDA.
And the Abbott government are backing him all the way, claiming that its campaign against 18c is about the protection of freedom of speech despite Andrew Bolt having arguably the biggest media platform in the country to espouse his views, often to the detriment of Aboriginal people.
For example, Bolt has led an outrageous and inaccurate campaign for over a decade claiming the Stolen Generations are a myth, despite the swathes of historical evidence that has been delivered to his doorstep (most spectacularly by writer Robert Manne, who has detailed his dealings with Bolt in the Monthly magazine).
The irony is breathtaking.
NSWALC Chairman Craig Cromelin says while Senator Brandis has claimed the Bromberg judgement was an attack on free speech, other respected senior journalists claim the judgement had nothing to do with it.
“They pointed out Justice Bromberg’s attack was on Bolt’s lousy journalism. His articles were riddled with factual errors,” Mr Cromelin said.
“Exemptions are available under the current Act which the Australian Human Rights Commission has clearly stated allow the media considerable scope by permitting fair and accurate reporting on any matter of public interest.
“The exemptions allow freedom of editorial opinions provided they are not published without malice.
“This is where Bolt’s defence foundered. A fact forgotten in the public debate which Justice Bromberg’s judgment ignited.
“Justice Bromberg found his articles contained errors of facts, distortions of the truth and inflammatory and provocative language.”
The impact on the plaintiffs were far-reaching.
Anita Heiss, one of the most prominent and successful Aboriginal writers in the country, penned her memoirs following the judgment; her book title was a missile aimed at Bolt and his ilk: ‘Am I Black Enough for You?’
Following the judgment she spoke of the damage Mr Bolt’s articles had done to her professional reputation as a writer, whose work is committed to building bridges between black and white, and was built up over two decades.
“With a flick of his pen, Andrew Bolt… managed to burn down many of those bridges, by writing words about me (and others) that discredited me professionally, whilst also offending, insulting and humiliating me,” Ms Heiss wrote.
Mr Bolt later used his blog, published by the Herald Sun website, to point his followers to the Amazon review site of Ms Heiss’ book, where it was inundated with negative and outright racist reviews.
The racist reviews were protected because Amazon is a U.S. based site, and is under its jurisdiction, protected by America’s First Amendment.
Aboriginal lawyer Michael Mansell claims there are already examples of media censorship far worse than Mr Bolt’s proclaimed censorship, and often it’s to the detriment of Aboriginal people – not privileged white men paid for their opinion.
“Neither the Australian, nor the Age, as a matter of practice, if not policy, will publish any Aboriginal views different to those that espouse assimilation,” Mr Mansell said in a statement.
“The public broadcaster, the national ABC, likewise censors Aboriginal viewpoints so that only ultra-conservative black voices are aired.
“When did Aunty last give any left leaning views an airing? Why does Mr Brandis not tackle these restrictions on free speech?
“All of these examples are blatant breaches of free speech.
“Why has Mr Brandis missed these obvious examples while supporting a right-wing columnist who is free to publish anything, subject to the law?
“We all acknowledge that free speech is not absolute.
“Distributing child pornography, deliberately behaving offensively, and deliberately targeting minorities by widely distributing venom likely to promote further bigotry against Aborigines and migrants, are justifiable exceptions to free speech.
“Free speech is about ensuring that everybody has a right to their say, not just those who have privileged positions to dominate.
“To allow absolute freedom for Andrew Bolt to vilify fair-skinned Aborigines (as representatives of their people) is to shut down their freedom of speech.
“It is an Australian cultural prejudice that, in the past, led journalists to demand Aboriginal representatives justify their bona fides on the degrees of dark skin.
“Bolt is a throw-back to that era.
“When white people are interviewed, their identity is never questioned.
“It is discriminatory to ask some Aborigines whether their skin colour justifies their right to be heard.
“Being continually distracted by questions of identity, by people outside the Aboriginal community, discourages a class of Aborigines from speaking out. That is not freedom of speech: it denies free speech.”
*Amy McQuire is a Darumbal and South Sea Islander journalist and the editor of Tracker. Her last feature was the Lost Generations, about the Indigenous incarceration crisis in north-west New South Wales.
Amy McQuire 