From Nathaniel Knoll – Year 12
The Detrimental Movement to Amend the Racial Discrimination Act
Australia is an undeniably multicultural nation. According to the 2011 Census, more than 44% of Australia’s population were born overseas or have at least 1 parent who was born overseas. Also, 260 languages are spoken by Australia’s populous, and the people identify with some 300 ancestry groups. It thus stands that we should, and do, have laws in place to protect the intercultural stability of our society. These laws can be found within the Racial Discrimination Act (hereafter RDA), which was introduced in 1975. This Act makes it unlawful to treat someone less fairly on the basis of their race, colour, descent or national/ethnic origin.
In recent Australian politics, one particular section of the RDA has aroused some contention and debate – Section 18C, which makes it unlawful to take an action in public that “is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate” based on one’s “race, colour or national/ethnic origin”.
In accordance with Section 18D, Such action is not however unlawful, if it is done reasonably and in good faith, say, in the “performance, exhibition or distribution of an artistic work” or “in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest” or in making or publishing a fair report or comment on any event or matter of public interest.
In an address to the Australian Human Rights Commission early last year, Peter Wertheim (Executive Director of ECAJ) spoke on the topic of Section 18C, and has kindly offered me a copy of this address to help construct this article. In this address, one of the sections outlines the harms of racial vilification as “a direct attack on the target’s humanity and dignity… undermining the good standing of members of the target community with other citizens along with their basic sense of safety and security”. Wertheim also raised the point that “the target has a reasonable fear that a response will provoke further abuse.” For these reasons, among others, Australia needs Section 18C as it is, else we may be faced with increasing intercultural tensions.
Now the reason I am writing this article is as a response to a recent move by Senator Cory Bernardi, to amend Section 18C of the RDA, so that the words “offend” and “insult” would be removed , making it legal to offend or insult an individual based on their race, skin colour, spoken language, culturally relevant attire, etc. Senator Bernardi has collected a total of 20 signatures within the Senate – out of 39 needed to pass the amendment in the 78 seat Senate. It would then go on to the House of Representatives, and if it passes there, the amendment would come into force.
Cory Bernardi, on his personal blog, recently stated that freedom is under assault like never before in this country and goes on to explain that “Section 18C… is now being used as a tool to stifle speech on the basis it may offend or insult someone.” Whilst I don’t want to centre my article around deconstructing Bernardi’s argument, as that is not the purpose of this argument, I will point out one hole. Bernardi somewhat ironically presents his distaste for cherry-picking of information in that same blog post. His argument appears to revolve around the idea that these socially progressive laws, paired with the ‘age of political correctness’, will gradually reduce our freedom of speech to “Orwell’s frightening vision characterised in his book Nineteen Eighty-Four”.
The irony is that this is precisely what cherry-picking looks like, as Bernardi does not seem to have even considered Section 18D. In considering the effects of 18C’s full contents and 18D’s exemptions for 18C, we see that there aren’t any real threats to free speech. Firstly, in terms of the alleged subjectivity, 18C is objective in its implementation. If someone is ‘easily offended’ in such a way that others of the same background would not be offended, there is no violation of 18C. Nor does 18C provide recourse for “mere hurt feelings”. In Creek v Cairns Post Pty Ltd the Federal Court in 2001 decided that “insult, offend, humiliate and intimidate” only classifies action as unlawful under 18C if the act has “profound and serious effects, not to be likened to mere slights”.
Secondly, 18D means that if there is a contentious issue between different cultural groups, it is perfectly acceptable to hold a public debate that may otherwise cause some form of offense. As long as the points are put forward with reasons and in good faith, 18D creates an exemption that will allow the most robust public debate to lawfully occur.
I hope now that the effects of Section 18C and their scope/limitations are now clear. I would like to now propose the risks I see with altering Section 18C to exclude “offend” and “insult”. Should these words be removed, the following examples of abhorrent actions and statements would no longer be unlawful:
- Publicly shaming Arab women for wearing a hijab
- Spreading posters around a neighbourhood that blame Jews for the Holocaust or denying that the Holocaust happened
- Actively and publicly discriminating against legitimate refugees and asylum seekers on the basis of their race or national origin
I would like to expand on these examples, which I have selected due to their relevance to Australia as it is now. Firstly, the point on discriminating against Arabs based on what some Arabs (who happen to be Muslim) wear. Australia has come a long way in terms of intercultural acceptance. For example, our school participates in the RUA Interfaith program, which aims to allow different religious school students to learn about each others’ cultures and religions so that any tensions between our communities would be reduced.
On to the second point about Holocaust denial. We are at a time where Holocaust survivors are aging, and soon may not be able to tell their own stories. The remembrance of these stories, and how we as a community will continue to remember and pass down these stories, form a pivotal part of our communal dignity. Active Holocaust denial is particularly offensive and insulting to the Jewish community. Removing “offend” and “insult” from 18C will create an avenue to further increase the occurrences of Holocaust denial, which will only beget unnecessary and avoidable public issues in the near future.
For the third point, insulting refugees picks on one of the weakest sectors in our society. Most refugees are having difficulty with cultural integration, making it harder for them to get accepted into a job that would allow them to contribute to the economy. Should “offend” and “insult” be removed from 18C, imagine how much more difficult it would be for these refugees who are granted their visas to fit in with our society. Australia currently budgets for approximately $400M in welfare payments for these unemployed refugees. If the changes are made to 18C, this would go up. Now I’m aware that this value is not that large in terms of the size of the budget, but imagine if instead we could not only make this value go down, but also allow refugees to contribute to Australia’s economic growth. That would be harder to achieve if 18C was amended as Bernardi and the other 19 Senators intend.
To wrap this up, I want to put some emphasis on my main opinion point. Amending 18C to exclude the words “offend” and “insult” will have several negative effects on our society, including rising racism, xenophobia, antisemitism and tensions between cultural groups within our exceptionally multicultural nation. The path forward is to protect Section 18C as it is, and stand together to allow multiculturalism to thrive, not perish. The Jewish Community, together with others successfully defeated a previous attempt to wind back 18C, and we will need to make a stand again if the movement to amend 18C progresses any further.
 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352. The Criminal Code Act 1995 (Cth) sch s 471.12 creates an offence for using ‘a postal or similar service’ in a manner that ‘reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive’
 Toben v Jones – (2003) 199 ALR 1