11^th 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.