Section 18C ‘debate’: Human rights as a political distraction

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Repealing Section 18C has the potential to legitimise and magnify the racist hate-speech that Australian people of colour already have to deal with, writes Brooke Murphy.

RECENTLY, various politicians and media outlets have been contributing to the "debate" surrounding Section 18C of the Racial Discrimination Act 1975.

Arguments against Section 18C centre on the need for upholding a "right" to freedom of speech. However, this ideology ignores the fact that Australians do not have any legal rights to freedom of speech.

Instead, the High Court has found that the right of freedom of political communication can be implied from the Australian Constitution. This means that we can freely express our political opinions, thoughts and ideas.

But the High Court has also held that this freedom does not come without reasonable limits. Previous governments have recognised that legislation such as Section 18C of the Act are necessary because freedom from discriminationis more important than freedom of speech at any cost.

Section 18C was introduced by the Keating Government in 1995. The provision makes it unlawful for someone to do or say something which is reasonably likely to 'offend, insult, humiliate or intimidate' someone because of their race or ethnicity. The government enacted this provision as a civil Commonwealth law to implement two important international treaties: Convention Against the Elimination of Racial Discrimination (CERD), and International Covenant on Civil and Political Rights (ICCPR).

Some have stated that Section 18C goes too far in implementing CERD and ICCPR. This argument ignores the fact that these treaties actually call for the criminalisation of some forms of hate speech and racist conduct. For example, Article 4 of the CERD calls for the criminalisation of the

'... dissemination of ideas based on racial superiority or hatred... [and] ... incitement to racial discrimination.'

Australia has made reservations to some articles of CERD and ICCPR on the basis that criminalising this conduct would unreasonably restrict "free speech". This has already watered down the impact of these treaties on domestic law. A civil liability such as Section 18C is far less intrusive on political communication than a criminal one.

Statements by conservative politicians prove that our Parliament is currently incapable of having a nuanced debate about the wording of Section 18C. Popular arguments include that the words "offend" and "insult" are vague and unreasonably limit free speech. Less frequently discussed are the broad exemptions outlined in Section 18D of the Act, or case law limiting the application of these words to conduct that has profound and serious effects, which are not be likened to mere slights.

No case operates within a vacuum of legislative drafting. The broad wording of Section 18C allows judges to create nuanced decisions regarding complex circumstances and evidence. As we have seen in the failed case against QUT students, it would be extremely difficult for weak, trivial matters to succeed. Unfortunately, this case has been seized upon by conservative politicians and media to suit a dangerous (and distracting) political agenda.

Other laws limiting "freedom of speech" and causing offence

Free speech "advocates" seem to conveniently ignore other laws which limit freedom of speech and political communication. These include: defamation, criminal offences, sexual harassment legislation, intellectual property and anti-terror laws.

Earlier this year, Chris Nelson pleaded guilty to the criminal offence of 'using a carriage service to menace, harass or cause offence' after he unleashed a vile racist tirade on Facebook against Nova Peris.

Before Mr Nelson pleaded guilty, he was quoted in the Central Coast Advocate as saying:

"I was clearly hacked … I’m definitely not a racist. I’ve got friends who are Aboriginal and family who are Aboriginal­."

This article mentioned that Mr Nelson had won 'community awards in his more than 20 years as a Rotarian' but did not mention that Ms Peris is not only an Australian senator, but an Olympic gold-medallist and member of the Order of Australia. A similar article in the Daily Telegraph pre-dating his plea also painted Mr Nelson as a victim.

Mr Nelson was given an eight-month suspended jail sentence and a two-year good behaviour bond. Contrasting the coverage of the sentence in the Sydney Morning Herald and the Daily Telegraph shows extremely different journalistic approaches. Alarmingly, the Daily Telegraph article devoted several paragraphs to Mr Nelson’s personal circumstances and only one line to public statements made about the matter by Ms Peris. While this story was not about Section 18C, some media coverage reflected a level of sympathy for an individual who was guilty of a "free speech" related and racially-motivated crime.

The conservative media attack on Ms Peris was not just limited to traditional, fact-based journalism and social media. Earlier in the year, Rita Panahi attacked Nova Peris along with identity politics, feminists and a wide range of marginalised people in her consistently-shocking column in the Herald Sun.

This is the same newspaper that publishes opinion columns by Andrew Bolt, who was successfully sued for breaching Section 18C in 2011. It is no surprise that media outlets that publish and broadcast the emotive, inflammatory opinions of commentators are pushing for the repeal of Section 18C. As reported in Crikey, The Australian has already published 135,000 words of diatribe against the provision.

State discrimination laws

State-based anti-discrimination laws have also been left out of political "debate" and media commentary which rallies against Section 18C. While these laws are drafted differently to Commonwealth legislation, similar provisions allow for civil liability related to a wider variety of social categories.

For example, under Section 67A of the Discrimination Act 1991 (ACT):

'It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private: (a) disability; (b) gender identity; (c) HIV/AIDS status; (d) race; (e) religious conviction; (f) sexuality.'

Previously, Alan Jones was successfully sued under New South Wales discrimination laws for statements he made on radio before the Cronulla Riots. Of course, the effectiveness of these laws can only match the funding of state-based anti-discrimination agencies.

Multicultural Australia needs Section 18C

In a country where Bill Leak’s cartoons, Aboriginal deaths in custody, Cronulla riots, racist social media attacks, Reclaim Australia rallies and the One Nation Party are reality, we should not be arguing over whether people have the right to be bigots. "Free speech" is a broken aspiration when powerful, white individuals have the most power to speak.

Even with Section 18C, traditional media, social media and political rhetoric are already full of examples of discriminatory, racially-charged speech. Section 18C is clearly not preventing political discussions involving race. The fresh call for the amendment or removal of Section 18C is just one example of many attempts by the Coalition Government to shirk international legal obligations.

Repealing or watering down this provision has the potential to legitimise and magnify the racist hate-speech that Australian people of colour already have to deal with. Section 18C is just one piece of a complex puzzle, but it is an important one. Human rights should never be used as a divisive, political distraction.

Brooke Murphy's is a lawyer completing her PhD on the potential for fiduciary law to address non-economic interests, such as sexual autonomy. You can follow Brooke on Twitter @brooke___murphy.

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