11th Novem­ber 2013
Free­dom of speech is fun­da­men­tal to a free soci­ety and indis­pens­able for human progress. But it has nev­er been regard­ed as absolute and unlim­it­ed. In his famous Essay on Lib­er­ty the Eng­lish philoso­pher, John Stu­art Mill, drew a dis­tinc­tion between lib­er­ty and licence. He recog­nised that lib­er­ty does not mean the licence of indi­vid­u­als to do just as they please, because that would mean the absence of law and of order, and ulti­mate­ly the destruc­tion of lib­er­ty.
The exist­ing Fed­er­al law strikes a care­ful bal­ance between free­dom of expres­sion and free­dom from racial vil­i­fi­ca­tion. The courts have found that the cur­rent law does not vio­late the implied con­sti­tu­tion­al free­dom to debate polit­i­cal mat­ters. The cur­rent law does not exist pri­mar­i­ly to pro­tect the major­i­ty, although it does that too. In a democ­ra­cy the major­i­ty can look after itself. Laws against racial vil­i­fi­ca­tion are required to pro­tect eth­nic and nation­al minori­ties, and in par­tic­u­lar minor­i­ty com­mu­ni­ties which may become the tar­gets of pub­lic cam­paigns to por­tray them as unpop­u­lar or which are aimed at mak­ing them unpop­u­lar.
To be vil­i­fied because of one’s eth­nic­i­ty or nation­al ori­gin, which are fac­tors which one can­not change, is to be made a social pari­ah. This can impact neg­a­tive­ly on one’s rela­tion­ships with neigh­bours, work-mates, friends, acquain­tances and oth­ers with whom one needs to inter­act. Belong­ing to a racial­ly vil­i­fied group can under­mine and ulti­mate­ly destroy the sense of safe­ty and secu­ri­ty with which one goes about one’s dai­ly life. And, para­dox­i­cal­ly for free speech advo­cates, racial vil­i­fi­ca­tion can have a silenc­ing effect on those who are vil­i­fied. It deprives its tar­gets of equal treat­ment and a fair go.
His­tor­i­cal­ly, in oth­er coun­tries, racial vil­i­fi­ca­tion has been aimed at desen­si­tis­ing the gen­er­al pop­u­la­tion to the human­i­ty, dig­ni­ty and human rights of mem­bers of the tar­get­ed group. This has been a pre­cur­sor to dis­crim­i­na­tion, per­se­cu­tion, vio­lence and, ulti­mate­ly, geno­cide and oth­er crimes against human­i­ty.
The whole­sale repeal of the sec­tions of the Racial Dis­crim­i­na­tion Act which pro­hib­it racial vil­i­fi­ca­tion would not only remove the means avail­able to vil­i­fied groups to defend their rep­u­ta­tions legal­ly, it would also remove a key imped­i­ment against dif­fer­ent eth­nic and nation­al com­mu­ni­ties vil­i­fy­ing one anoth­er in pub­lic dis­course. It would there­by open the door to the impor­ta­tion into Aus­tralia of the hatreds and vio­lence of over­seas con­flicts. This is some­thing that should deeply con­cern all Aus­tralians.
There is a way to amend the leg­is­la­tion, short of a whole­sale repeal, to ensure that only the most seri­ous cas­es are dealt with and to avoid any pos­si­bil­i­ty of abuse. We are keen to dis­cuss these ideas with the Attor­ney-Gen­er­al and under­stand that he wish­es to engage with us and oth­er stake­hold­er com­mu­ni­ties before act­ing. That is wel­come news. It is imper­a­tive that we have those dis­cus­sions before any Bill is intro­duced into the Par­lia­ment, so that the terms of the Bill are informed by the government’s con­sul­ta­tion with the com­mu­ni­ty and do not pre-empt it.