ANDREW JAKUBOWICZ. A Rose by Any Other Name: Reflections on the future of race discrimination and vilification in Australia

Jul 11, 2018

In a penultimate spate of inter-personal hostility between the current Race Discrimination Commissioner and his opponents in government and the media, the future of a Commissioner (RDC) and the enabling Racial Discrimination Act (RDA) have been flagged by Attorney General Porter as being high on his “to do” list.

Institute for Public Affairs warriors from CEO John Roskam through to its untamed political and media personalities such as James Paterson and Andrew Bolt, who have been singed but not scarred by the repeated failure of their campaign to get rid of racial vilification (Section 18C of the RDA) as grounds for civil action, have joined the fray.  However with Tim Soutphomassane leaving the RDC post in August, and the re-appointment of anti-racial vilification conservative Sev Ozdowski by fellow conservative Multicultural Minister Alan Tudge,  to once more head the now enlarged but fully tamed Australian Multicultural Council, Attorney General Porter and his Sky/News Ltd cheer squad have signalled a new approach.

Having failed in the head-on charge of an enraged beast, they are now pursuing a flanking movement, trying to lull their prey into quietude through two tropes – talk of name changing, and talk of ensuring “middle Australian values” are reflected in the appointment and focus of the position.

The RDA of 1975 was drafted in a much more racist Australia, in order to ensure that the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) could be put into Commonwealth law using the Foreign Affairs powers of the Constitution

When Gough Whitlam appointed Al Grassby as Community Relations Commissioner (a title copied from the UK) the position was exploratory and developmental, essentially charged with creating the process and model for future institutional action. The Fraser government period was characterised by inaction, a waiting time until Grassby’s appointment ended. It was only with the Hawke government after 1983 that a Human Rights and Equal Opportunity Commission was envisaged, under the aegis of which various human rights commissioners would be installed. The first Race Discrimination Commissioner of what is now the Australian Human Rights Commission was appointed in 1986. From the outset News Ltd, especially through The Australian, has been opposed to most of the initiatives of the RDC, beginning with the Inquiry into Racist Violence (reported 1991).

Recently there has been some kite-flying around name changes, with Community Relations apparently preferred, justified in part by its use before the RDA was enacted. It carries an umbra of “community values”, by which is meant greater toleration of racial vilification and bigotry as an acceptable and characteristic quality of middle Australian life-world. However to change the name of the Commissioner would mean changing the name of the Commission, thereby requiring legislative change. Legislative change carries a significant danger.

Once  the Act is up for change of name or functions, then any number of amendments could appear. These might easily include the removal of racial vilification, or any other disempowering opportunities that the Act’s opponents believe they can sneak or ram through. We only have to consider recent legislation in areas of heightened sensitivity (eg foreign representation) to understand the way in which Senate chaos confuses the debate on extensive and emotionally-laden legislation. Many grounds for protective action might well dissipate as changes to the Act penetrate protective fabric woven over decades.

The Prime Minister has been cagey on this whole area, essentially leaving it to the radical Right of his party to mount a case and win the battles: if they do he will not object, if the fail once more, he will claim he gave them the chance they demanded and they were once more ineffectual.  Attorney general Porter and Minsiter Tudge are not however people who accept failure, nor would they allow that they might be ineffectual.

Porter appears to have agreed with his newly appointed President of the Commission Rosalind Croucher a mode of language that positions the RDC of the past five years as on the margins of Australian society. Croucher as the former President of the Australian Law Reform Commission already has history. The ALRC recommended in its 2016 analysis of laws requiring review that  part IIA of the RDA, the Race Hatred section, might be wider in its powers than required under the ICERD. Such a jumping off point provides exactly the impetus needed for the wider demolition of the legislation.

Yet research shows that the vast majority of Australians do worry about racist vilification being given free rein (over 80% support laws to limit freedom of speech in order to protect from vilification), as they do about virulent sexism being paraded as freedom of speech. While they may be comforted by talk of community values, they recognise prejudice when it is voiced, and racist vilification when it is directed at vulnerable individuals and communities.

Lurking in the background is the expert panel report on religious freedom, delivered recently to the government but currently so explosive in its implications that it has not been released for public discussion. If religious discrimination and vilification are proposed to be added to the RDA to form some sort of Community Relations portfolio, where then will the actions fly?

Mandating a re-visioned and renamed RDC to do no more than exhort people to be nice to each other, rather than help them understand their rights and how they might be protected, suggests that we would be replacing a robust tradition of pursuing equality, with a wishy-washy pablum that abandons the victims in the name of tolerance, and empowers the perpetrators of racism in the name of freedom.

The retiring RDC has demonstrated how psychologically resilient and morally committed to the job one must be. The attacks on him have been at the very least grossly racist, personally offensive and socially vicious, exemplifying the descent into incivility that has overtaken the public sphere in recent times. Lucky for him he is a married heterosexual male; one can only imagine the crush of vileness he would have experience as a homosexual or woman (qua  Yassmin Abdel-Magied). Unfortunately his replacement, given this government’s practice, is likely to be someone with few if any of those personal qualities Soutphomassane has shown, though well-attuned to the priorities and dog-whistling of the conservative Right.

It were best if the Attorney General understood the difference between the educational, standard defending and social role of the Commissioner, and the complaints and resolution procedures of the Commission. Currently it appears he has not been briefed on what the present legislation allows or requires of these separate parts of the institution. Then having taken a deep breath and realised we have a very good system that only very occasionally makes serious mistakes (and the ruling on Andrew Bolt’s vilification of Indigenous Australians was not one of them), he could get on with protection of the civil liberties that all members of a free and multicultural society require, not those that defend the privileges of the already privileged few.

Andrew Jakubowicz  (BA PhD FRSN MAICD), Emeritus Professor, University of Technology Sydney

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