For all the talk about a freedom to offend, insult and humiliate others, not everyone recognises that racial vilification can harm free speech by silencing its victims, writes Race Discrimination Commissioner Tim Soutphommasane.
"When we think of harmony, we think of components coming together to produce a pleasing whole. It is only apt that we use it to refer to our cultural diversity. We are a country where almost half the population was either born overseas or has a parent who was born overseas. Few places could boast such a mix and yet enjoy remarkable social cohesion.
"There is one aspect of harmony, though, that isn't always appreciated. The concept refers not only to cultures and identities existing together, but also to social values being in balance. This has been one key ingredient of our success as a multicultural Australia. Since its inception, multiculturalism has embodied a harmony of rights and responsibilities, of diversity and solidarity.
"The multicultural ideal is a nation-building one. It is about securing equal opportunity, and ensuring that everyone can participate in the life of the nation. Central to it all has been the Racial Discrimination Act. This writes into our laws that we don't accept discrimination, exclusion, restriction or preference based on race or ethnicity.
"There has been recent debate about this legislation and what it says about racial hatred and vilification. The federal government wishes to “repeal in its current form” section 18C of the act, which makes it unlawful to commit an act that is reasonably likely to offend, insult, humiliate or intimidate someone because of their race. Earlier this week, media reports speculated that possible legislative amendments may also include changes to section 18D, which exempts a number of speech acts from being in breach of the law.
"Unfortunately, the debate reflects significant misunderstanding of how this law works. For example, it is frequently asserted that people can be “prosecuted” or “convicted” under the Racial Discrimination Act. It is regularly said that section 18C serves to protect hurt feelings at the expense of free speech.
"Neither assertions are true. Just as you can't be prosecuted or convicted for civil negligence or defamation, you can't be subject to criminal penalty for racial vilification under section 18C. And when it concerns hurt feelings, the courts have interpreted section 18C in a clear and consistent manner since the 1990s. Unlawful conduct must cause “profound and serious effects, not to be likened to mere slights”.
"It is also strange that section 18D now appears to be targeted for amendment. This is one of the few provisions in Australian law that explicitly protects freedom of expression. The section protects anything that is done reasonably and in good faith when it involves artistic expression, scientific inquiry, or fair comment and reporting.
"With its current requirements of reasonabless and good faith, section 18D ensures that we can draw a clear line between legitimate public debate and hate speech. It ensures that the noble value of freedom doesn't excuse malice. That people can't claim the protection of free speech when they combine factual error, distortion of the truth and inflammatory language.
"Perhaps the most questionable aspect of the ongoing debate, however, is that many commentators have advanced such a one-sided view of freedom. For all the talk about a freedom to offend, insult and humiliate others, not everyone recognises that racial vilification can harm free speech by silencing its victims.
"This is why it's unconvincing to say that leaving things open to more speech is all that's needed to fight racism. Not everyone is in a position of parity to speak back to those who denigrate them on racial grounds. If, for instance, racist abuse can wound giants of the sporting arena - figures such as Adam Goodes, Ben Barba and Ali Abbas - imagine how it must cut down those who are vulnerable or disadvantaged.
"It is only right that the law also plays a role in protecting those with less power. When sections 18C and 18D were introduced to the Racial Discrimination Act in 1995, it was done to ensure that the average person had a way of holding others accountable for racial abuse and harassment. The Royal Commission into Aboriginal Deaths in Custody, the National Inquiry into Racist Violence, and the Australian Law Reform Commission each recommended the introduction of such laws.
"One other thing is troubling at the moment. Much of the debate has centred not on how the vilification laws have actually worked during the past two decades, but on the Federal Court's ruling in the case involving Andrew Bolt in 2011. This was a judgment that was never challenged by appeal. Does this single case provide sufficient cause for dismantling part of our legislative architecture of racial tolerance and multicultural harmony?
"This is one question we should ask today. Because while Harmony Day is an opportunity for us to celebrate diversity, it is also a day for resolution. It coincides with the UN International Day for the Elimination of Racial Discrimination, an occasion that challenges us to combat prejudice and intolerance in our lives.
"We should respond with an emphatic message: racism diminishes our society and the harmony we have worked so hard to achieve. When racism happens, Australians should be able to turn to our laws for redress. Everyone should have the assurance that our laws reflect our values – that they give full voice to civility and tolerance."
This opinion piece was published by Fairfax online on 21 March 2014.