Australia is a democratic pluralist society and there lies the rub. Democracies privilege freedom, while pluralism requires civility. In the increasing hyperbole surrounding the question of the impact of Section 18C of the Racial Discrimination Act many are arguing that freedom of speech should trump freedom from hate, and others that the current “balance” is fine.
A sociology of the protagonists suggests that those who are proposing to diminish the protections offered to victims of racial vilification under 18C are predominantly well-off (Christian) Euro-Australian males, who are also the majority of those previously complained against under 18C. Those who are opposed to changes to 18C tend to be drawn from minority groups in terms of ethnicity, race and religion, and are more likely to be women.
It is important to understand why we have Section 18 at all. In 1966, with the long serving Prime Minister R G Menzies recently retired, the new and more liberal Holt government signed onto the UN International Convention for the Elimination of All Forms of Racial Discrimination. In doing so it filed a “reservation” on Article 4A, that is, refused to enact that article which required signatories to criminalise race hate speech. Even so it adopted Article 5, which includes “the right to freedom of opinion and expression”.
In 1975 the Whitlam government ratified the Convention through the Racial Discrimination Act, which was left silent on the matters covered by Article 4A, namely the promotion of racial discrimination and racial vilification. It was not until 1993, after the Human Rights Commission inquired into racist violence associated with the arrival of Indo Chinese refugees, that the Keating government notified the UN that it intended to seek support for action under 4A and thereby set in place what would be needed to withdraw its reservation.
Opposition from the coalition and independent senators led to a form of amendment (Section 18) to the Act passed in 1996, without any criminal sanctions. Australia’s reservation on 4A thus remains.
The primary push for removing Section 18 comes from the neo-liberal lobby group the Institute for Public Affairs. Following the last Federal election it has two former operatives in the parliament, Tim Wilson MHR and Sen. James Paterson. In addition the push is led by ultra-conservatives Sen. Corry Bernardi and Sen. Eric Abetz. At the heart of their anger about 18C was the determination by the federal court that Melbourne IPA associate and media commentator Andrew Bolt had breached Section 18C by carelessly and untruthfully, and therefore in bad faith, maligning the bonafides of light-skinned Indigenous people who had accessed various government benefits relating to their Indigenous status. With Rupert Murdoch as a patron of the IPA, the News Ltd. media have been consistent critics of the Act and the HRC’s role in its administration.
Tony Abbott’s first election agenda was heavily dependent on the IPA’s list of demands, including the end of 18C. Attorney General Brandis announced early on that Section 18 was going to be eliminated or heavily amended. Widespread concern in Indigenous and ethnic communities at the licensing of race hate that they felt would result, led to the formation of a loose alliance which described itself, in a symbolic affirmation of the international body’s legitimacy, as the United Nations.
This UN group comprised Jewish, Arab, Indigenous, Chinese, Greek, and other community members. Early in 2014 it met with Brandis, and argued for the full retention of Section 18. However it allowed that if the government pressed on, it would acquiesce to the replacement of the “lighter” elements of 18C (insult and offend) by the word vilify, if the heavier end of the 18C (intimidate and humiliate) was toughened up by changes to the Commonwealth Criminal Code Act (1995). The Code under Chapter 5 (The Security of the Commonwealth) Part 5.1, Subdivision C – Urging violence and advocating terrorism, in sections 80.2A and B, criminalises the intentional urging of violence against a group or a member of a group distinguished by race, religion, nationality, national or ethnic origin, or political opinion, where such violence would threaten the peace, order and good government of the Commonwealth.
There is a defence for acts done in “good faith”, and it was this defence that the UN group wanted modified, so that exhorting violence against ethno-religious groups would not be subject to a good faith defence. Brandis agreed to take this back into Cabinet, but the party room refused to accept that solution. Sustained opposition from the United Nations and their networks continued, affecting the attitudes of significant blocks of voters in marginal government seats. Moreover both ASIO and the Federal police were worried at the way the debate over the right to bigotry, as Brandis had labelled it, was providing fuel for the radicalisation of youth in Muslim communities (even though the RDA does not apply to the Islamic faith as a religion). It was the concern of these anti-terrorist agencies for good order and the declining willingness of their networks of informants to trust the government, that finally pushed Abbott to abandon the changes. The IPA voiced its disgust at his capitulation and vowed to continue the push.
In the 2016 Federal election the government was returned with a massively reduced majority, dependent on Chinese and Korean votes in seats like David Coleman’s Banks, Craig Laundy’s Reid, John Alexander’s Bennelong (lost by John Howard in 2007 on the Asian vote) and Julia Banks’ Chisholm. With 18C saved and their attention focussed by Chinese Christian activists on same sex marriage, the Asian voters swung to and stuck with Liberal candidates or gave Liberal preferences.
This week the announcement of the Parliamentary Committee review of Section 18 has shaken the Asian communities. With same sex marriage now “gone”, attention has come back on the rising racism identified and experienced by these communities, especially the Chinese. Chinese language social media have been heavy with admonitions from senior figures who are castigating those who voted Liberal, to the effect of “this is what we warned you of, and this is how they repay your support”.
Inside the Liberal Party room two forces have been struggling to hold back the IPA push – Julian Leeser (Berowra) has been meeting with the UN group members and arguing for saving the current provisions while making the process more transparent, timely and less intimidating. Coleman and Laundy have been looking to minimise the fall-out in the Asian communities, whose anger levels are rising.
Outside the parliament the IPA cheer squad in News Ltd (especially Jennifer Oriel, Janet Albrechtsen and Chris Kenny) have been focussed on challenging the Human Rights Commission and seeking to have its key players, Gillian Triggs and Tim Soutphommassane, removed from office. The latest cases – complaints against News Ltd. artist Bill Leak for a widely-circulated provocative cartoon on Indigenous family breakdown, and three QUT students for alleged racist slurs on facebook – have added fuel to this situation.
Prime Minister Malcolm Turnbull has wrongly claimed that the AHRC had prosecuted the QUT case (the referral to the federal court, which dismissed the case, came from the complainant). But Turnbull’s own electorate of Wentworth, while not at risk, is a centre for the Jewish community in Sydney, and they have been less than impressed by his role in feeding the bigots’ frenzy against Section 18. One strongly pro-Liberal Jewish group (Australia/Israel and Jewish Affairs Council) have supported the referral to the Committee, while still holding to the validity of the current legislation. The Executive Council of Australian Jewry and the Jewish communities in Victoria and NSW both reasserted their support for the current form of legislation, though they too have indicated they will make submissions to the inquiry.
The preferred way forward may well be the solution that Leeser has offered, with 18C intact but the procedures stream-lined. The Jewish community well knows that something has to be done – its 13 year case against the owner of the Adelaide Institute website, Holocaust denial advocate Frederick Toben – produced nothing. Toben when found to have been in breach, simply passed the site on to another owner, who has proved even more vitriolic in his anti-semitism.
Andrew Jakubowicz is professor of Sociology at the University of Technology Sydney. He is currently researching cyber racism (including attitudes to constraints on racism on line) and refugee survival during World War 2. His personal view on Section 18 is that Australia should withdraw its reservation on ICERD Art 4A and get on with it – but then he would say that, wouldn’t he.