Published in The Weekend Australian on 5.04.2014
In considering the case for the proposed repeal of sections of the Racial Discrimination Act, surely the basic question is: “Just whose quality of life is being diminished by these laws?”
Legislators who make and repeal laws do so where there is an identified problem they consider needs addressing. What is the problem that repeal of section 18C will remedy or at least ameliorate? Who are the punters, cowering in their lounge rooms, repressed by a law that stops them publicly giving a gobful of racial abuse to indigenous Australians and ethnic minorities?
Certainly the Institute of Public Affairs and commentator Andrew Bolt lobbied the Coalition to make a pre-election commitment to repeal sections of the Racial Discrimination Act.
But there was no obvious groundswell of opposition to legislative provisions that had been in force for two decades, including for the entire 12 years of the Howard Liberal government.
The present government asserts that section 18C has had a chilling effect. For this to be true, there must be lots of people who are not only aware of the section but frustrated by it holding them back from doing what they really want to do.
It is with these as yet unidentified people’s liberties that the government is concerned. Indeed the title of the proposed amendment is the Freedom of Speech Bill.
Yet the government has assured the Jewish community that Holocaust denial would remain unlawful. Why? If freedom of speech is paramount, it follows logically that racial vilification — defined as inciting hatred — should be lawful.
Clearly, then, the government does not consider freedom of speech to be paramount; it believes some restrictions are warranted. But those justifiable restrictions do not include, according to the government, offending, insulting and humiliating people on the basis of their race. Australians, we are told, have a right to be bigots.
Yet even the protections against racial vilification and intimidation are so heavily qualified in the amendment bill as to be virtually meaningless.
Free speech is well protected by section 18D, subject to the requirement that this freedom is exercised reasonably and in good faith. But reasonableness and good faith are no longer required in the government’s preferred version of these laws. If vilifiers are participating in a public discussion then they can vilify to their hearts’ content.
Intimidation in the amendment bill is confined to causing fear of physical harm. Moreover, the sweeping exception for matters of public discussion also applies to even this narrowly constricted protection, enabling intimidators legally to create a fear of physical harm as long as they do it in public discussion.
Within the Liberal Party in particular there is a tradition of libertarianism. Fair enough.
But to be true to the cause, libertarians should be arguing for freedoms such as same-sex marriage, euthanasia and, logically, the right not to wear seat belts. Yet none of these is Liberal Party policy.
If it’s not a matter of the consistent application of a high principle of freedom, we come back to trying to identify the problem that the amendments are meant to fix.
In support of the amendments, a number of indigenous Australians have pointed out that the Racial Discrimination Act hasn’t ended racism. Nor have the anti-violence laws ended violence, the anti-rape laws ended rape or the anti-drug laws ended drug trafficking. But that doesn’t mean they should be repealed.
A Jewish ALP member living in the US who supports the amendments has pointed out that the existing Australian law would violate the US Constitution. So would laws that prevented people wandering around with semiautomatic weapons, but most Australians would much rather have our gun laws than those in the US.
And who introduced those freedom-inhibiting Australian gun laws? John Howard, a Liberal prime minister in the libertarian mould, in what was perhaps his finest and most courageous achievement.
Others advocating repeal of section 18C have argued that we are better off getting racism out in the open so that we can counter it. Repealing laws against offending, insulting and humiliating people on the basis of their race certainly gets out a strong message to bigots: that in 21st-century Australia racism, including racial vilification, is now OK, especially if you do it in the course of public discussion.
Perhaps if the penalties for breaching the existing legislation were onerous a case could be made for reviewing the legislation or at least the penalties. But breaching the act is not a criminal offence.
Nor does the existing legislation create a basis to sue those who breach the protections, as also has been suggested, wrongly. Conciliation meetings are organised, and if the person who breaches the act refuses to co-operate a judge may order that an apology be published and offending material removed from public display.
Come on, ministers, let’s abandon the proposed amendments. They’re a bad idea.