Freedom of speech and expression is inevitably a double edged sword. While it is very much the cornerstone of our democratic rights and freedoms, those who spew hateful and misleading vitriol ultimately thrive from the protection it offers. This is precisely why our Federal anti-discrimination laws need to be reviewed with an aim to strengthen, not diminish, legislative protections.
Tony Abbott’s address to the Institute for Public Affairs (IPA) last week was unsurprisingly a crowd pleaser, as he attempted to appease his supporters at the IPA, score points with News Limited executives and staunchly defend his comrade Andrew Bolt. It was section 18C of the Racial Discrimination Act 1975 (RDA) that Bolt had been found to have contravened for publishing deceptive and offensive material about our already marginalised Indigenous population.
So rather predictably Abbott launched his attack on this very section which, he implied, ought to be deemed as little more than a ”hurt feelings” test. Whether his intention to repeal section 18C of the RDA and revert to common law offences of incitement is an “aspiration” or a commitment is yet to be determined (although, as long as the Greens hold the balance of power in the Senate, such sweeping amendments may never see the light of day, even under an Abbott-led government).
Section 18C makes it unlawful to do an act that ”is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” on racial or ethnic grounds.” Section 18C is not about “hurt feelings,” or an impediment to discussing “alternatives” in the public sphere, nor is it about limiting freedom of speech. It is about offering legislative protection to the most vulnerable and marginalised members of our society – our indigenous population, along with culturally and ethnically diverse communities and religious minority groups.
Moreover, eliminating such legislative protections and relying instead on common law offences of incitement would not provide guaranteed protections, and would ultimately represent an appalling abrogation of responsibility for the most vulnerable.
Perhaps Mr Abbott and his speech writers should pay closer to attention to the exceptions set out in the section immediately following s18C. Section 18D of the RDA specifically exempts conduct which has been done reasonably and in good faith for particular specified purposes, including the making of a fair comment in a newspaper. It is a provision which, broadly speaking, seeks to balance the objectives of s18C with the need to protect justifiable freedoms of expression.
In the case of Bolt, Federal Court Judge Bromberg wasn’t satisfied that the offensive conduct was exempt under this section because of the manner in which the “articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language.”
Interestingly, an edited extract of Abbott’s speech published in The Australian prior to his actual address at the IPA stated that he would “be prepared to maintain a prohibition on inciting hatred against or intimidation of particular racial groups.” This part was deleted from the address that he delivered later that day. Mr Abbott should clarify his intentions and explain which specific groups he feels are worthy of legislative protection.
The behaviour of the likes of Andrew Bolt and Alan Jones helps fuel racist sentiments and ultimately creates the sort of climate in which Cronulla-style riots and individual acts of racially motivated violence can flourish. (Recall that, in 2009, Australian Communications and Media Authority ruled that Jones’ broadcast material in the days before the Cronulla riots was ”likely to encourage violence or brutality.” As a result, Jones and 2GB were found by a court to have vilified Lebanese and Middle Easterners and were ordered to pay $10,000 in damages.)
In a grudging admission that our current anti-discrimination laws are imperfect and in desperate need of an overhaul, Attorney-General Nicola Roxon last year launched public discussion paper to seek community views on consolidating Commonwealth anti-discrimination law as part of Australia’s Human Rights Framework. In its submission, the Federation of Ethnic Communities’ Council of Australia specifically raised the issue around the notable lack of expressed recognition of “religion” as a protected attribute under the Federal Discrimination laws.
Currently, discrimination on the grounds of religion is unlawful in the ACT, Queensland, Northern Territory, Tasmania, Victoria and Western Australia, with South Australia not providing any protection at all. In NSW, only discrimination on “ethno-religious” as opposed to “religious” grounds is deemed unlawful, and even then the ethno-religious categorization only extends to groups of people who are recognised as both ethnic and religious group. At present this only serves to protect members of the Jewish and Sikh faiths.
Despite statistics documented by a number of research institutions that all point towards an increase in Islamophobia in the West, Muslims and other faith groups which consist of ethnically diverse members are not afforded such protections under Federal laws as they do not fit into the “ethno-religious” category, even though religion is often used as a pretext for what is, in reality, race discrimination.
The only national law protecting people from discrimination on the grounds of their religion applies only in the context of employment and, disappointingly, isn’t actually enforceable in court.
Some are mounting the argument that increasing levels of Islamophobia in Australia has sped up a process of “ethnicization” of the Muslim Australian community and that, perhaps on this basis, Muslims should be seen to fit into an “ethno-religious” category. In any event, as the then-acting Race Discrimination Commissioner Dr William Jonas pointed out in 2003, “it may seem anomalous that anti-Semitism is outlawed” – and rightly so, I’d add – “but Islamophobia is not.”
As Abbott himself has admitted, “Freedom of speech can’t be absolute.” All freedoms and rights are coupled with responsibility. It is a sad state of affairs when our politicians feel the need to score political points at the expense of the most vulnerable members of our society.
Mariam Veiszadeh is a lawyer, writer and community rights advocate.
Originally published on ABC Religion and Ethics Online