tag:theconversation.com,2011:/au/topics/racial-discrimination-act-14422/articlesRacial Discrimination Act – The Conversation2023-05-28T20:06:27Ztag:theconversation.com,2011:article/2053842023-05-28T20:06:27Z2023-05-28T20:06:27ZFar from undermining democracy, The Voice will pluralise and enrich Australia’s democratic conversation<figure><img src="https://images.theconversation.com/files/527618/original/file-20230523-23-trurlw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cheryl Axleby reads the Uluru Statement from the Heart outside South Australia’s Parliament in Adelaide on March 26, after SA becomes the first state to legislate for an Indigenous Voice.</span> <span class="attribution"><span class="source">Matt Turner/AAP</span></span></figcaption></figure><p>Does the proposal for a Voice to Parliament prefigure a distinctive conception of democracy for Australia? A steady drumbeat of criticism to date has been that it will, instead, undermine our liberal democratic institutions.</p>
<p>One version of this concern is that an Indigenous Voice violates the principle of <a href="https://www.theguardian.com/australia-news/2023/may/02/liberals-accused-of-flirting-with-far-right-fringe-after-sky-news-show-where-indigenous-voice-compared-to-apartheid">equal citizenship</a> and equality before the law. Another is that it introduces a divisive form of <a href="https://www.cis.org.au/commentary/opinion/voice-a-dagger-to-the-heart-of-liberalism/">racial politics</a> into our public life. Some claim it will have little impact on improving the lives of Indigenous people. Yet others say it will have <a href="https://www.youtube.com/watch?v=R7w7tgDccx0">too much power</a>. </p>
<p>A significant part of the debate has been carried out — so far, at least — in a negative tone, and even by some of its supporters. The focus has been on what the Voice won’t do and what its limits are, and less about what it can do. </p>
<p>Of course, the Yes campaign is only just beginning. And there have been powerful statements of support from different sections of the community. State governments, sporting codes, companies, and community organisations have expressed their support in various ways. </p>
<p>However, I want to place the proposal for a Voice into a broader context of democratic innovation and renewal. Taken in isolation, claims about whether the Voice should make “representations” only to Parliament, or also to “executive government”, can seem rather arcane and confusing. </p>
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Read more:
<a href="https://theconversation.com/the-voice-isnt-apartheid-or-a-veto-over-parliament-this-misinformation-is-undermining-democratic-debate-205474">The Voice isn't apartheid or a veto over parliament – this misinformation is undermining democratic debate</a>
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<p>Concerns about judicial activism and the rule of law, detached from a broader account of how the interplay between law and politics works in a representative democracy, can be <a href="https://theconversation.com/what-happens-if-the-government-goes-against-the-advice-of-the-voice-to-parliament-200517">misleading</a>. We are not, for example, as a result of the Voice, on the verge of a massive transfer of power to the High Court, as just about every credible legal commentator has made clear. </p>
<p>The American democratic theorist <a href="https://plato.stanford.edu/entries/dewey/">John Dewey</a> said that “the public is a collective called forth by experience of common problems”. </p>
<p>And the way that democratic societies deal with common problems is through public conversation — through what political theorists call “public reasoning”. </p>
<p>The Australian public is being called forth through the referendum process to address the unresolved status of Indigenous peoples in our body politic. We need a richer account of democracy within which to locate the proposal for a Voice to raise the quality of our debate about it. </p>
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<a href="https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Minister for Indigenous Australians Linda Burney and Australian Attorney-General Mark Dreyfus react after the introduction of the bill to establish an Aboriginal and Torres Strat Islander Voice in the House of Representatives.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
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<h2>Distinctive qualities</h2>
<p>What is distinctive about the Voice is both its democratic pedigree and its democratic character. Although there are reasonable questions about how much more democratic it could have been, the emergence of the proposal for the Voice from community led dialogues across Australia lends it strong democratic credence. </p>
<p>And at the heart of it is a mechanism for improving the quality of decision making about matters that affect Indigenous peoples. </p>
<p>The desire to anchor the Voice in the constitution is intended both to protect it from being subject to the whims of electoral politics, and to mark the special place Indigenous peoples have in our history. </p>
<p>There is both a forward looking and remedial aspect to this form of recognition. Given the persistent gap in life prospects between Indigenous and non-Indigenous peoples over decades, we know our existing institutions are not working. But equally, given the complexity of these issues, and the ongoing legacies of colonial dispossession, we need to find ways to keep working through these challenges together. </p>
<p>The proposal is also unique globally. In Canada, <a href="https://laws-lois.justice.gc.ca/eng/const/index.html">the Constitution Act of 1982</a> recognised “existing” Aboriginal treaty rights, resulting in a long march through the courts to figure out exactly what that means. In the United States, the <a href="https://www.justice.gov/enrd/timeline-event/federal-trust-doctrine-first-described-supreme-court">“domestic dependent</a> nation status of Indian nations, formulated by the Supreme Court in the 19th century, has meant, again, that the courts have led the conversation. In New Zealand, the establishment of the <a href="https://www.waitangitribunal.govt.nz/treaty-of-waitangi/">Waitangi Tribunal</a> (a commission of inquiry, chaired by a judge) and reserved parliamentary seats for Maori, has resulted in a very different kind of political process for resolving purported breaches of the treaty. </p>
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Read more:
<a href="https://theconversation.com/history-and-myth-why-the-treaty-of-waitangi-remains-such-a-bloody-difficult-subject-202038">History and myth: why the Treaty of Waitangi remains such a ‘bloody difficult subject’</a>
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<p>The proposed Voice to Parliament, on the other hand, is seeking to anchor Indigenous perspectives in the constitution, but also at the heart of our democratic institutions. </p>
<p>So, what is the best way of conceiving of the kind of democracy that I think the Voice is calling for? </p>
<p>One of the fundamental values underpinning democracy is political equality. But what kind of political equality? The idea of equality appealed to by many critics of the Voice is too simplistic. Often, it’s a claim that equal treatment means the <em>same</em> treatment, in every circumstance. </p>
<p>But our legal and political institutions already make sense of equality in much richer ways. To treat someone equally requires that we answer at least two further questions: equal in what respect? And to what extent do their circumstances require further consideration in figuring out how to treat them equally?</p>
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<span class="caption">What is the best way of conceiving of the kind of democracy that the Voice is calling for?</span>
<span class="attribution"><span class="source">Lukas Koch/AAP</span></span>
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<p>There are two elements to what I’ll call <em>democratic</em> political equality. </p>
<p>The first are those rights that citizens need to protect them from the harms that both the state and society can do. These include the classic protections of freedom of assembly, of religion, of speech, of property and bodily integrity. </p>
<p>The second element, however, and too often neglected, is the positive freedoms associated with participation in public life. We can only ever truly secure our freedoms when we share equally in the power being exercised over us. Citizens need to have the opportunity to shape the laws to which they are subject; in short, they must be empowered. </p>
<p>Most importantly, as leading democratic theorists such as Jurgen Habermas and Danielle Allen have argued, these public and private freedoms are mutually dependent: you can’t fully realise one without the other. Thus democracy, on this reading, is instrumentally valuable — it protects us from harms and enables us to pursue our own interests. But it is also intrinsically valuable — it helps us lead better lives by empowering us to shape the society within which we live. </p>
<h2>‘Public reasoning’</h2>
<p>Another aspect underpinning the kind of democracy the Voice is calling for is what I referred to above as "public reasoning”. Put simply, in a democracy, you solve problems through public conversation. But the terms of these conversations — who participates and how, as well as the kinds of reasons one can or shouldn’t appeal to — matter. </p>
<p>It’s not that citizens engage as if they were in a philosophy seminar, or in a court of law. Rather, it’s that we agree to resolve our disagreements, or continue to live with them, as best we can, through dialogue. These conversations will often be difficult and frustrating, as well as incomplete and disorienting. But the spirit driving them, ultimately, must be one of mutual respect and persuasion, rather than the exercise of arbitrary power. </p>
<p>However, citizens are unequally positioned relative to each other in terms of how they can participate in these public conversations. Hence why the positive freedoms I mentioned above are so important to secure. </p>
<p>Some have more access to resources than others. Some are more eloquent or forceful than others. Majority cultures tend to shape public discussions and institutions in both explicit and implicit ways that can disadvantage minorities.</p>
<p>Thus, we need to design democratic institutions so that they are responsive to the deep pluralism of our society. We need to multiply the ways in which diverse citizens and groups can participate in public debate and policy making. This cuts against technocratic forms of rule, as well as rule by simply majority. </p>
<p>I think this is the best interpretation of what “making representations” to parliament and the executive in the draft constitutional amendment means and why it should be preserved. It’s about creating a mechanism for pluralising and enriching Australia’s democratic conversation. It’s not about identity politics. It’s not intended as a conversation stopper. </p>
<p>Finally, this way of conceiving of democracy should shape our conception of democratic citizenship. It’s not simply a legal status, and nor is it mainly about voting and obeying the law. Instead, citizenship becomes a richer, more capacious ideal. </p>
<p>According to this richer ideal, democratic citizenship also involves the development of forms of self-awareness and self-formation through a wide range of deliberations about our existing institutions. Our sense of common interests, for example, can expand as we encounter new claims, or re-interpretations of existing ones, that we were previously unaware of. Pluralising public reason creates room for democratic innovation. </p>
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<p>Deva Woodly, in her <a href="https://global.oup.com/academic/product/reckoning-9780197603956?cc=au&lang=en&#">brilliant analysis</a> of the emergence of the Black Lives Matter movement, uses the analogy of “swailing” — or what we know as the Aboriginal land management practice of “<a href="https://theconversation.com/painting-with-fire-how-northern-australia-developed-one-of-the-worlds-best-bushfire-management-programs-205113">cool burning</a>” — to analogise the kind of renewal that social movements generate for fragile democratic environments. </p>
<p>Woodly points out how these movements draw out the contradictions between ideals and political realities, and demonstrate that democracy is always an incomplete process. The social movements that have led to the Uluru statement — going back over decades — have provided a kind of democratic cool burning for Australian public discourse. </p>
<h2>Democratic all the way down</h2>
<p>In proposing a new mechanism for enhancing Indigenous voices in our political institutions, the Voice is appealing to the interdependence between public and private freedoms, as well as the value of government through public reasoning. </p>
<p>Note that framing the Voice in this way also offers us a means of assessing how best to design and implement the details, if the constitutional amendment is approved. </p>
<p>Democratic values cut in both directions. The way that local and regional Indigenous communities select and engage with their Voice representatives, as well as those in Canberra, will be critical. </p>
<p>The norms that govern those processes will need to reflect the broader democratic intent of the Voice. The <a href="https://ncq.org.au/resources/indigenous-voice-co-design-process-final-report-to-australian-government/#:%7E:text=The%20Indigenous%20Voice%20Co%2Ddesign,the%20Australian%20Government%20and%20Parliament.">final report</a> of the Indigenous co-design process is a good place to start for exploring these different possibilities. </p>
<p>Let’s return to some of the criticisms we began with: Is the Voice introducing division where there is unity, racial categories where there is neutrality, and inequality where there is equality? I think the answer is clearly no. </p>
<p>First, the social, economic, and political baseline we are starting from is radically unequal. Almost everyone agrees that the gap between Aboriginal and Torres Strait Islanders’ wellbeing and that of the rest of the population is shameful. </p>
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Read more:
<a href="https://theconversation.com/first-nations-people-in-the-nt-receive-just-16-of-the-medicare-funding-of-an-average-australian-183210">First Nations people in the NT receive just 16% of the Medicare funding of an average Australian</a>
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<p>Second, it’s not Indigenous people who have insisted on introducing racial categories into our politics, but rather successive Australian governments and the legal and political institutions that arose from settlement. It was the High Court, after all, that drew on the Racial Discrimination Act, among other sources, to remove long entrenched legal obstacles to the recognition of native title in <a href="https://aiatsis.gov.au/explore/mabo-case">Mabo</a>. </p>
<p>And it was the Australian government that suspended the application of that act when it legislated the Northern Territory “<a href="https://humanrights.gov.au/our-work/social-justice-report-2007-chapter-3-northern-territory-emergency-response-intervention">Intervention</a>” in 2007. </p>
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<span class="caption">A 2008 protest march in Sydney against the NT Intervention. The Australian government suspended the application of the Racial Discrimination Act when it legislated for the Intervention.</span>
<span class="attribution"><span class="source">Dean Lewins/AAP</span></span>
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<p>Race, in other words, has been a primary tool of the state over many years, not the social movements that have sought justice for Aboriginal people. The Voice isn’t a proposal for reintroducing racial categories into our civic identity, despite what <a href="https://www.abc.net.au/news/2023-05-22/peter-dutton-says-indigenous-voice-will-re-racialise-the-country/102378700">Peter Dutton</a> recently claimed. In fact, quite the opposite: it is an attempt to reconfigure that identity so that it no longer reflects the racial injustices of the past (and the present). </p>
<p>This democratic framing can also help us think through a deep criticism of the Voice from the left. Some have argued that nothing less than a treaty, rather than a deliberative body, is required to fully disrupt the colonial edifice of the Australian state. The Voice, on this reading, is a form of entrapment; it naturalises settler law and the colonial political order. </p>
<p>However, if we see the constitutional recognition of an Indigenous Voice in democratic terms (and assuming it can indeed reflect the diverse voices of Indigenous peoples), then it offers a practical way of working through these profound questions. </p>
<p>The Uluru statement is, after all, rooted in a claim of continuing sovereignty. Nothing about the referendum process requires a repudiation of that.</p>
<p>However, the establishment of a constitutionally recognised deliberative body puts in place a mechanism for an ongoing conversation between peoples that could, over time, reconfigure these relations.</p>
<p>It offers a means for enlarging and deepening our public reasoning about not only the consequences of the past, but our collective aspirations for the future.</p><img src="https://counter.theconversation.com/content/205384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Duncan Ivison has received funding from the Australian Research Council for projects related to the themes of this article. </span></em></p>We need a richer account of democracy within which to locate the Voice, to lift the quality of public debate about it.Duncan Ivison, Professor of Political Philosophy, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1051322018-10-24T19:05:07Z2018-10-24T19:05:07ZWhy Australia needs a Religious Discrimination Act<figure><img src="https://images.theconversation.com/files/241561/original/file-20181022-105767-dji4g9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A federal Religious Discrimination Act would introduce important protections for Australia’s religiously diverse population.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/618694655?src=BIHYmhJbbIu-gJuP4HYiwQ-2-80&size=huge_jpg">Shutterstock</a></span></figcaption></figure><p>The <a href="https://www.pmc.gov.au/domestic-policy/religious-freedom-review">Ruddock review on Religious Freedom</a> has recommended the creation of a Religious Discrimination Act as part of its <a href="https://www.smh.com.au/politics/federal/read-the-full-20-recommendations-from-the-religious-freedom-review-20181011-p50918.html">20 recommendations</a>. </p>
<p>Some have argued there is <a href="https://theconversation.com/why-australia-does-not-need-a-religious-discrimination-act-99666">no pressing need</a> for a Religious Discrimination Act. <a href="https://www.humanrights.gov.au/quick-guide/12091">All states and territories</a>, except South Australia and New South Wales, currently prohibit discrimination on the basis of a person’s religion. Religious discrimination is also prevented at the workplace under the federal <a href="https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/workplace-discrimination">Fair Work Act</a>. </p>
<p>However, a Religious Discrimination Act is necessary to introduce other important protections for Australia’s <a href="https://www.abc.net.au/religion/religion-and-the-census-australias-unique-relationship-to-faith-/10095652">religiously diverse population</a>. Besides Christians, who make up <a href="http://www.abs.gov.au/AUSSTATS/abs@.nsf/mediareleasesbyReleaseDate/7E65A144540551D7CA258148000E2B85">about half the population</a>, Australia is home to other religious minorities, including Muslims (2.6% of the population), Hindus 1.9% and Sikhs 0.5%. A Religious Discrimination Act would also protect the growing number of Australians who identify as having no religion (30%). </p>
<p>As Chief Justice John Latham explained in the <a href="http://www.uniset.ca/other/cs5/67CLR116.html">Jehovah’s Witnesses case</a> of 1943:</p>
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<p>…it should not be forgotten that such a provision as s. 116 [of the Constitution] is not required for the protection of the religion of a majority. The religion of the majority of people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities.</p>
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Read more:
<a href="https://theconversation.com/why-australia-does-not-need-a-religious-discrimination-act-99666">Why Australia does not need a Religious Discrimination Act</a>
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<h2>Religious discrimination is not a new issue</h2>
<p>Religious discrimination is not a new discussion in Australia. Twenty years ago, the Human Rights and Equal Opportunity Commission <a href="https://www.humanrights.gov.au/sites/default/files/content/pdf/human_rights/religion/article_18_religious_freedom.pdf">noted that</a>: </p>
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<p>Despite the legal protections that apply in different jurisdictions, many Australians suffer discrimination on the basis of religious belief or non-belief, including members of both mainstream and non-mainstream religions and those of no religious persuasion. </p>
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<p>Submissions received by the commission detailed the areas in which people experienced religious discrimination. For example, Pagan groups found it difficult to hire facilities to conduct events, while Muslim, Buddhist and Sikh communities reported having problems with planning authorities. Some people said they kept their religions a secret at work for fear of being fired or denied promotions. </p>
<p>The commission recommended the introduction of a federal Religious Freedom Act, which included provisions prohibiting discrimination on the basis of a person’s religion. </p>
<h2>What’s the state of religious discrimination in Australia?</h2>
<p>Australians already enjoy a relatively high level of <a href="https://object.cato.org/sites/cato.org/files/human-freedom-index-files/human-freedom-index-2016-update-3.pdf">religious freedom</a>. However, this does not mean that people are never discriminated against on the basis of their religion. </p>
<p>In <a href="https://www.smh.com.au/politics/federal/controversial-parliament-house-burqa-ban-dumped-20141020-118j5h.html">2014</a>, for instance, the parliament banned people wearing face coverings from entering the open public viewing gallery in Parliament House. Instead, they were relegated to the glass viewing area usually reserved for school children. The effect of the ban was to discriminate against Muslim women who wear burqas or niqabs as part of their religious devotion.</p>
<p>During the same-sex marriage postal survey, <a href="https://www.abc.net.au/news/2017-10-11/ssm-same-sex-marriage-respectful-debate-ugly-side/8996500">there were reports</a> of people claiming they were discriminated against because they supported the “No” campaign. An entertainer who worked as a contractor for a children’s party business was fired after changing her Facebook profile frame to one that included the words “<a href="https://www.abc.net.au/news/2017-09-20/fair-work-to-probe-sacking-over-same-sex-marriage-survey/8964558">it’s OK to vote no</a>”. She claimed she was discriminated against due to her Christian beliefs. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-gay-wedding-cake-dilemma-when-religious-freedom-and-lgbti-rights-intersect-93070">The 'gay wedding cake' dilemma: when religious freedom and LGBTI rights intersect</a>
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<p>Under the <a href="https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">International Covenant on Civil and Political Rights</a>, Australia is also obligated to enact laws prohibiting both religious discrimination and vilification. </p>
<p>Religious vilification is behaviour that incites hatred, serious contempt for, or revulsion or severe ridicule of a person or group of people because of their religion. Only three states – Victoria, Queensland and Tasmania – currently prohibit religious vilification.</p>
<p>In response to concerns about the tone of the same-sex marriage debate, the federal government passed a temporary <a href="https://www.legislation.gov.au/Details/C2017A00096">Marriage Law Survey (Additional Safeguards) Act 2017 (Cth)</a>. The act prohibited vilification on the basis of a person’s “view in relation to the marriage law survey question” or a person’s “religious conviction, sexual orientation, gender identity or intersex status.” It automatically lapsed on November 15 2017, the day the survey results were released.</p>
<p>Without the full details of the Ruddock review, it is unclear whether the proposed Religious Discrimination Act would include provisions prohibiting religious vilification. </p>
<h2>What would a Religious Discrimination Act do?</h2>
<p>Introducing a Religious Discrimination Act would also fix an anomaly in the existing Racial Discrimination Act. <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s9.html">Section 9 of this act</a> prohibits discrimination on the basis of a person’s “race, colour, descent or national or ethnic origin”. </p>
<p>Ethnic origin has been interpreted by the courts to cover both Sikhs and Jews.
By contrast, Muslims and Christians are not covered by the Racial Discrimination Act, as they do not constitute a single ethnic group. </p>
<p>But as the Federal Court of Australia explained in <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2002/1080.html">Jones v Scully</a>, ethnic origin covers more than a person’s racial identity. It includes groups who have shared customs, beliefs, traditions and characteristics derived from their histories. </p>
<p>Those claiming discrimination on the basis of their lack of religious beliefs are also not covered under the Racial Discrimination Act. This creates a discrepancy in the treatment of different religious groups under the law. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ruddock-report-constrains-not-expands-federal-religious-exemptions-96347">Ruddock report constrains, not expands, federal religious exemptions</a>
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<p>As Australia continues to debate the best way to protect freedom of religion, while also guaranteeing the rights of other groups, such as the LGBTI community, balance and compromise will be necessary. </p>
<p>As part of that balancing act, the government has already <a href="https://www.theguardian.com/australia-news/2018/oct/13/morrison-caves-to-labor-on-gay-students-in-discrimination-law-reform-push">announced</a> it will remove some religious exemptions from the Sex Discrimination Act, making clear, for instance, that students cannot be expelled from religious schools on the basis of their sexuality.</p>
<p>Other restrictions, such as requiring religious organisations to be <a href="https://www.abc.net.au/religion/transparency-is-the-way-forward-for-religious-exemptions/10379256">transparent</a> in their use of exemptions in anti-discrimination legislation such as the Sex Discrimination Act, may also be needed.</p>
<p>A Religious Discrimination Act should also be part of the compromise and balance. Religious discrimination may not be an everyday occurrence for many Australians. However, this does not mean the law should ignore those who have been discriminated against because of their faith or lack of it.</p><img src="https://counter.theconversation.com/content/105132/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Renae Barker is the Diocesan Advocate of the Anglian Diocese of Bunbury and advises the Bishop, Bishop in Council, Trustees and Synod on matters of Church law.</span></em></p>Australians already enjoy a relatively high level of religious freedom. However, discrimination and vilification on the basis of people’s faith still exists.Renae Barker, Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/854482017-10-16T00:16:27Z2017-10-16T00:16:27ZHere’s how Australia can act to target racist behaviour online<figure><img src="https://images.theconversation.com/files/190229/original/file-20171014-3527-1vy4jnu.jpg?ixlib=rb-1.1.0&rect=2022%2C167%2C1404%2C1503&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Racists take advantage of social media algorithms to find people with similar beliefs. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/dislike-cloud-word-blue-sky-423666622?src=a6ECOOczQqxoigzMsGSV9g-1-2">from www.shutterstock.com </a></span></figcaption></figure><p>Although racism online feels like an insurmountable problem, there are legal and civil actions we can take right now in Australia to address it. </p>
<p>Racism expressed on social media sites provided by <a href="http://forward.com/news/world/353625/germany-investigates-mark-zuckerberg-and-facebook-over-slow-removal-of-hate/">Facebook</a> and the <a href="https://www.wired.com/2017/03/youtubes-ad-problems-finally-blow-googles-face/">Alphabet stable</a> (which includes Google and YouTube) ranges from advocacy of <a href="https://techcrunch.com/2017/08/16/hatespeech-white-supremacy-nazis-social-networks/">white power</a>, support of the <a href="https://www.technologyreview.com/the-download/608882/facebooks-anti-semitic-ad-targeting-disaster/">extermination of Jews</a> and the call for <a href="https://www.facebook.com/StopMosq/?ref=page_internal">political action against Muslim citizens</a> because of their faith. Increasingly it occurs within the now “private” pages of groups that “like” racism.</p>
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<img alt="" src="https://images.theconversation.com/files/190228/original/file-20171014-3555-1d9nzl8.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/190228/original/file-20171014-3555-1d9nzl8.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=927&fit=crop&dpr=1 600w, https://images.theconversation.com/files/190228/original/file-20171014-3555-1d9nzl8.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=927&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/190228/original/file-20171014-3555-1d9nzl8.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=927&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/190228/original/file-20171014-3555-1d9nzl8.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1165&fit=crop&dpr=1 754w, https://images.theconversation.com/files/190228/original/file-20171014-3555-1d9nzl8.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1165&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/190228/original/file-20171014-3555-1d9nzl8.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1165&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Simon Wiesenthal Center 2017 Digital Terrorism and Hate Report card.</span>
<span class="attribution"><a class="source" href="http://www.wiesenthal.com/site/apps/nlnet/content.aspx?c=lsKWLbPJLnF&b=8776547&ct=14988437&notoc=1">Simon Wiesenthal Center</a></span>
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<p>At the heart of the problem is the clash between commercial goals of social media companies (based around creating communities, building audiences, and publishing and curating content to sell to advertisers), and <a href="https://www.facebook.com/zuck">self-ascribed</a> ethical responsibilities of companies to users.</p>
<p>Although some platforms show <a href="http://www.thetimes.co.uk/article/youtube-hate-preachers-share-screens-with-household-names-kdmpmkkjk">growing awareness</a> of the need to respond more quickly to complaints, it’s a very slow process to automate.</p>
<p>Australia should focus on laws that protect internet users from overt hate, and civil actions to help balance out power relationships.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/tech-companies-can-distinguish-between-free-speech-and-hate-speech-if-they-want-to-82695">Tech companies can distinguish between free speech and hate speech if they want to</a>
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<h2>Three actions on the legal front</h2>
<p>At the global level, Australia could withdraw its reservation to Article 4 of the <a href="http://dfat.gov.au/about-us/publications/Documents/final-cerd-report.pdf">International Convention to Eliminate All Forms of Racial Discrimination</a>. Such a move has been <a href="http://www5.austlii.edu.au/au/journals/MurUEJL/1995/6.html">flagged in the past</a>, but stymied by opposition from an alliance of free speech and social conservative activists and politicians.</p>
<p>The convention is a global agreement to outlaw racism and racial discrimination, and Article 4 committed signatories to criminalise race hate speech. Australia’s reservation reflected the conservative governments’ reluctance to use the <a href="https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en">criminal law</a>, similar to the <a href="https://www.theguardian.com/australia-news/2017/mar/21/turnbull-pursue-18c-changes-despite-warning-marginal-seats">civil law debate</a> over section 18C of the Racial Discrimination Act in 2016/7.</p>
<p><a href="http://www.sbs.com.au/news/article/2017/08/24/60-cent-young-australians-have-experienced-race-abuse-online">New data</a> released by the eSafety Commissioner showed young people are subjected to extensive online hate. Amongst other findings, 53% of young Muslims said they had faced harmful online content; Indigenous people and asylum seekers were also frequent targets of online hate. Perhaps this could lead governments and opposition parties to a common cause.</p>
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<p><em><strong>Read more:</strong> <a href="https://theconversation.com/australians-believe-18c-protections-should-stay-73049">Australians believe 18C protections should stay</a></em> </p>
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<p>Secondly, while Australian law has adopted the European Convention on Cyber Crime, it could move further and adopt the <a href="https://edoc.coe.int/en/cybercrime/6559-convention-on-cybercrime-protocol-on-xenophobia-and-racism.html">additional protocol</a>. This outlaws racial vilification, and the advocacy of xenophobia and racism.</p>
<p>The impact of these international agreements would be to make serious cases of racial vilification online criminal acts in Australia, and the executive employees of platforms that refused to remove them personally criminally liable. This situation has emerged in Germany where Facebook executives have been threatened with the use of such laws. Mark Zuckerberg <a href="https://www.theguardian.com/technology/2016/feb/26/mark-zuckerberg-hate-speech-germany-facebook-refugee-crisis">visited Germany</a> to pledge opposition to anti-immigrant vilification in 2016.</p>
<p>Finally, Australia could adopt a version of <a href="https://www.netsafe.org.nz/cyberbullyingandonlineharassment/">New Zealand’s approach</a> to harmful digital communication. Here, platforms are held ultimately accountable for the publication of online content that seriously offends, and users can challenge the failure of platforms to take down offensive material in the realm of race hate. Currently complaints via the Australian Human Rights Commission do elicit informal cooperation in some cases, but citizen rights are limited.</p>
<p>Taken together, these elements would mark out to providers and users of internet services that there is a shared responsibility for reasonable civility.</p>
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<img alt="" src="https://images.theconversation.com/files/190230/original/file-20171014-3505-1l48wp6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/190230/original/file-20171014-3505-1l48wp6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/190230/original/file-20171014-3505-1l48wp6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/190230/original/file-20171014-3505-1l48wp6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/190230/original/file-20171014-3505-1l48wp6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/190230/original/file-20171014-3505-1l48wp6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/190230/original/file-20171014-3505-1l48wp6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Digital platforms can allow racist behaviour to be anonymous.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/gang-teenagers-hanging-out-urban-environment-216281416?src=FMqN2k8xfszR8NsA-OGYjg-1-19">from www.shutterstock.com</a></span>
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<h2>Civil strategies</h2>
<p>In addition to legal avenues, civil initiatives can empower those who are the targets of hate speech, and disempower those who are the perpetrators of race hate.</p>
<p>People who are targeted by racists need support and affirmation. This approach underpins the eSafety commissioner’s development of a <a href="https://esafety.gov.au/">Young and Safe portal</a>, which offers stories and scenarios designed to build confidence and grow skills in young people. This is extending to address concerns of women and children, racism, and other forms of bullying.</p>
<p>The Online Hate Prevention Institute (<a href="http://ohpi.org.au">OHPI</a>) has become a reservoir of insights and capacities to identify and pursue perpetrators. As proposed by OHPI, a CyberLine could be created for tipping and reporting race hate speech online, for follow up and possible legal action. Such a hotline would also serve as a discussion portal on what racism looks like and what responses are appropriate.</p>
<p>Anti-racism workshops (some have already been run by the E Safety commissioner) have aimed to push back against hate, and build structures where people can come together online. Modelling and disseminating best practice against race hate speech offers resources to wider communities that can then be replicated elsewhere.</p>
<p>The Point magazine (an online youth-centred publication for the government agency Multicultural New South Wales) reported <a href="http://www.thepointmagazine.com.au/post.php?s=2016-11-30-social-media-platforms-battle-online-haters">two major events</a> where governments sponsored industry/community collaboration to find ways forward against cyber racism.</p>
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<figcaption><span class="caption">What makes a diverse Australia?</span></figcaption>
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<p>The growth of online racism marks the struggle between a dark and destructive social movement that wishes to suppress or minimise the recognition of cultural differences, confronted by an emergent social movement that <a href="http://alltogethernow.org.au/a-solution-to-racism/">treasures cultural differences and egalitarian outcomes</a> in education and wider society.</p>
<p>Advocacy organisations can play a critical role in advancing an agenda of civility and responsibility through the state, the economy and civil society. The social movements of inclusion will ultimately put pressure on the state and in the economy to ensure the <a href="https://www.welcometoaustralia.org.au/">major platforms</a> do in fact accept full responsibilities for the consequences of their actions. If a platform refuses to publish hate speech or acts to remove it when it receives valid complaints, such views remain a private matter for the individual who holds them, not a corrosive undermining of civil society.</p>
<p>We need to rebalance the equation between civil society, government and the internet industry, so that when the population confronts the industry, demonstrating it wants answers, we will begin to see responsibility emerge. </p>
<p>Governments also need to see their role as more strongly ensuring a balance between the right to a civil discourse and the profitability of platforms. Currently the Australian government seems not to accept that it has such a role, even though a number of states have <a href="http://removehatefromthedebate.com/">begun to act</a>.</p>
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<p><em>The Cyber Racism and Community Resilience Project <a href="https://www.westernsydney.edu.au/__data/assets/pdf_file/0008/1234736/CRaCR_2016_s18C-RDA-submission.pdf">CRaCR</a> explores why cyber racism has grown in Australia and globally, and what concerned communities have and can do about it. This article summarises the recommendations CRaCR made to industry partners.</em></p><img src="https://counter.theconversation.com/content/85448/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This material is drawn from research for the book “Cyber Racism and Community Resilience” published by Palgrave Macmillan, written by the author and eight colleagues. This research was funded by an ARC Linkage Grant, with partners Australian Human Rights Commission, VicHealth and Federation of Ethnic Communities Councils of Australia (FECCA).</span></em></p>Racism thrives online because of a clash between the commercial goals and ethical responsibilities of social media companies. But Australia can take legal and civil actions right now to address this.Andrew Jakubowicz, Professor of Sociology, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/749542017-03-21T12:31:44Z2017-03-21T12:31:44ZConservatives have captured Turnbull for culture war crusade<p>Malcolm Turnbull is now, it seems, wholly owned by the conservatives in the Liberal Party and their strident media allies. His capitulation to them over 18C of the Racial Discrimination Act has been as revealing as it has been dramatic.</p>
<p>It has highlighted that Turnbull is, when it comes down to it, a transactional politician, one who these days will do whatever it takes in pursuit of his ends – in this case, keeping troublesome troops on side.</p>
<p>As opposition leader in 2009, Turnbull paid the ultimate price within his own party for sticking to his guns on carbon policy. Now policy is subservient to the perceived politics of the moment.</p>
<p>But this transaction to get the conservatives off his back is likely to carry a very high cost for him in sections of the electorate.</p>
<p>Turnbull said multiple times that he had no plans to revisit 18C. But then satisfying the right became a greater imperative than keeping a promise. Its breaking is being explained as a response to colleagues coming to him seeking change.</p>
<p>At Tuesday’s news conference Turnbull sounded like a lawyer arguing a brief. To open by claiming this would “strengthen the protection of Australians from racial vilification” was an affront to common sense - though delivered with all the professional passion of the skilled barrister.</p>
<p>In 2014, when he was communications minister in Tony Abbott’s cabinet, Turnbull complained about the proposals for changing 18C being landed on ministers without proper process or consultation.</p>
<p>He <a href="https://malcolmturnbull.com.au/media/what-do-you-think-about-changes-to-the-racial-discrimination-act-exposure-d">wrote a blog</a> inviting feedback on the government’s exposure draft, which proposed replacing 18C with a prohibition on vilification and intimidation. The blog was carefully worded, appearing to invite disagreement as much as agreement.</p>
<p>He referenced a policy document and an Abbott speech. He did not declare, as he now insists, that the current law had “lost its credibility”. He did note that “many residents of my electorate of Wentworth have first hand experience of the consequences of racial hatred, of how easily what appears to be ‘crazy theories’ and ‘ranting and raving’ too weird to take seriously can lead to genocide”.</p>
<p>The conservatives, who are driven more by their own principles than Turnbull is by his, have successfully used constant pressure to wear the Prime Minister down.</p>
<p>They have been much assisted in their revival of the issue by the publicity around the high-profile case of the Queensland students, the complaint against a cartoon by the late Bill Leak, and the campaigning of the Murdoch media. In the end, the complaints involved were quashed or withdrawn but they deeply affected the debate – which in recent days has been given a highly personal and emotional edge by Leak’s sudden death.</p>
<p>The Human Rights Commission itself has inadvertently provided abundant ammunition to the conservatives. Its handling of the QUT and Leak cases was poor; the appearances of commission president Gillian Triggs before Senate committees have been inept. There is agreement across the political spectrum that the commission’s processes need substantial overhaul.</p>
<p>On 18C itself, Turnbull now finds himself caught in a three-way squeeze - between the right wing zealots, the Senate, and the ethnic communities, which are strongly objecting to the change.</p>
<p>The Nick Xenophon Team’s Senate votes are required to rework 18C – and it has announced it will oppose the change, while backing process reform. It is likely to stick to this position.</p>
<p>Turnbull’s deep desire has been just to get past this issue. As Deputy Prime Minister Barnaby Joyce warns, if it runs on it becomes a distraction. But for Turnbull there will be no way to put it behind him.</p>
<p>Even if the Senate defeats the wording change, the conservatives will be determined that the fight is not given up. They did not let 18C rest after Abbott decided it was prudent to walk away from the battle. The right will push for Turnbull to remain committed, up to - and into - the next election.</p>
<p>On the other side, Labor and others will also ensure 18C remains an issue. The ethnic and Jewish lobbies will stay exercised and engaged. Turnbull on Tuesday contacted leaders of the Jewish, Indigenous and Muslim communities, seeking to reassure them. It will take a lot more than a few calls from the Prime Minister to counter the on-the-ground campaigns that will be unleashed.</p>
<p>In marginal Liberal seats with large numbers of ethnic voters this has the potential to leach support that an embattled Coalition government with a one-seat majority can’t afford to lose. One such seat is Reid in Sydney, occupied by assistant minister Craig Laundy – it is no wonder that Laundy has been one of the strongest voices for leaving the present wording.</p>
<p>Early this week conservative commentator Andrew Bolt, whose 2011 loss in an 18C case triggered the Coalition’s original push for change, wrote that Turnbull was “slowly working up a list of reasons why we [conservatives] should soon consider backing him”. Bolt, <a href="http://www.heraldsun.com.au/news/opinion/andrew-bolt/andrew-bolt-finally-prime-minister-malcolm-turnbull-gives-a-reason-to-fight/news-story/86b3e2204ffbf8fde7b8d53fd2e3bf32">writing ahead of the announcement</a>, said it was crucial that Turnbull’s mooted reforms to 18C were real, “even though big changes will almost certainly be blocked in the Senate”.</p>
<p>“Turnbull doesn’t have to win, but he does have to fight – and give conservatives reasons to fight for him, too,” Bolt said.</p>
<p>The Prime Minister has allowed himself to be enlisted in a culture war crusade in which the risks for him are immense. </p>
<iframe src="https://www.podbean.com/media/player/kwxda-68af74?from=yiiadmin" data-link="https://www.podbean.com/media/player/kwxda-68af74?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/74954/count.gif" alt="The Conversation" width="1" height="1" />
Malcolm Turnbull is now, it seems, wholly owned by the conservatives in the Liberal Party and their strident media allies. His capitulation to them over 18C of the Racial Discrimination Act has been as…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/737522017-02-28T23:32:55Z2017-02-28T23:32:55ZParliamentary inquiry into free speech resolves nothing, so 18C should be left alone<figure><img src="https://images.theconversation.com/files/158819/original/image-20170228-29924-1en5ztx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Federal parliament should leave section 18C untouched. </span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The inquiry into <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia">freedom of speech in Australia</a> by the Parliamentary Joint Committee on Human Rights has reported to parliament. Unsurprisingly, it has focused most of its recommendations on the procedures and processes associated with the role of the Australian Human Rights Commission in accepting and hearing complaints.</p>
<p>The impetus for the inquiry was the now-infamous “<a href="https://theconversation.com/qut-discrimination-case-exposes-human-rights-commission-failings-68235">QUT case</a>”, in which an employee of Queensland University Technology asked non-Indigenous students to leave a computer lab designated for the use of Indigenous students. Those students then allegedly posted comments on Facebook, in relation to which the QUT employee lodged a complaint of unlawful vilification against the students. In November 2016, <a href="http://www.theage.com.au/federal-politics/political-news/queensland-university-of-technology-case-thrown-out-as-18c-inquiry-looms-20161103-gshurj.html?deviceType=text">the Federal Court dismissed</a> all the complaints against the students.</p>
<p>The QUT case was the most recent impetus for the launch of this inquiry, although it followed earlier rumblings in the Australian Law Reform Commission’s <a href="https://www.alrc.gov.au/publications/freedoms-alrc129">report</a> on traditional rights and freedoms, <a href="http://www.theage.com.au/victoria/bolt-loses-highprofile-race-case-20110928-1kw8c.html">the Andrew Bolt case</a> and the <a href="http://www.smh.com.au/federal-politics/political-news/tony-abbott-dumps-controversial-changes-to-18c-racial-discrimination-laws-20140805-3d65l.html">unsuccessful 2014 attempt</a> to narrow section 18C.</p>
<h2>The words of section 18C</h2>
<p>All eyes were on what the report would recommend regarding the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">words used in section 18C</a>. This is because critics of the section are quick to point out that it says that unlawful conduct occurs when it is reasonably likely to “offend, insult, humiliate or intimidate” someone on the ground of their race. The bar is too low, they say. Merely offending someone or insulting them ought not to be grounds for a complaint of unlawful conduct under civil law.</p>
<p>Supporters of the section are equally quick to point out that the courts have interpreted section 18C to mean that the conduct captured by the law has to amount to a profound and serious harm, “<a href="http://www.austlii.edu.au/au/cases/cth/FCA/2001/1007.html">not to be likened to mere slights</a>”. Therefore, merely having one’s feelings hurt or feeling offended does not reach the threshold required to lodge a complaint. Independent MP David Leyonhelm found this out when he tried, unsuccessfully, <a href="http://www.smh.com.au/federal-politics/political-news/human-rights-commission-rejects-david-leyonhjelm-angry-white-male-discrimination-claim-20161129-gt0el9.html">to complain about</a> journalist Mark Kenny <a href="http://www.smh.com.au/federal-politics/federal-election-2016-opinion/freespeech-fundamentalists-break-free-of-good-conscience-20160808-gqnhnw.html">describing him</a> as speaking on ABC television with “angry-white-male certitude” and being a “rank apologist for the resentment industry promoted by angry-white-male shock jocks”.</p>
<h2>What changes to 18C have been proposed?</h2>
<p>Of the 22 recommendations made in the report, only one deals specifically with the words in section 18C. This recommendation is inconclusive. It notes merely that at least one member of the committee had supported each of the five mooted proposals.</p>
<p>This leaves no-one the wiser about what the federal parliament will do about the text of section 18C. It also puts the responsibility squarely in the hands of the parliament to make a decision on what has lately become a highly controversial piece of Australian federal law. The recommendation contains five options regarding the words in section 18C:</p>
<p><strong>1.</strong> No change. This option is strongly supported by the Australian Greens, who wrote a dissenting report. Labor also wrote extended additional comments, which noted the high levels of racism experienced in Australian society, the important role that 18C has played during the more than 20 years of its operation, and that the section only captures serious conduct. They agreed with witnesses to the inquiry who suggested that amending the section would send a dangerous message to the community. Overall, it seems highly likely the ALP supported this option.</p>
<p><strong>2.</strong> Codifying the courts’ interpretation of section 18C as referring to “profound and serious effects”. This change would have no material impact on how section 18C operates as a legal prohibition of unlawful conduct.</p>
<p><strong>3.</strong> Removing the words “offend”, “insult” and “humiliate” and replacing them with “harass”. This change would create uncertainty in the interpretation of section 18C, until a case was able to make its way to the courts and a definitive interpretation of the term “harass” was able to be made.</p>
<p>The Oxford English Dictionary defines “harass” as to “trouble or vex by repeated attacks”, or alternatively as to “trouble, worry or distress”. These terms could imply, but do not necessarily imply, profound and serious conduct.</p>
<p>It is possible a court would apply a similar interpretation to the term “harass” as has already been applied to the existing text. If that were the case, nothing much would change. </p>
<p><strong>4.</strong> Including a “truth” defence in section 18D. Section 18C operates in conjunction with section 18D, which allows for exemptions to conduct that would otherwise be considered to contravene section 18C. Exemptions currently exist for conduct done “reasonably and in good faith”, including artistic expression, public debate and fair and accurate reporting.</p>
<p>The inclusion of a “truth” defence in 18D would radically alter its scope. I imagine many people whose conduct might be caught by 18C would relish the opportunity to argue the “truth” of their views (for example, Holocaust deniers or those who would want to argue the inferiority of particular races). Deliberately providing a platform for such discourse through the text of 18C would make a mockery of 18C’s purpose and operation. It would significantly weaken the protection it offers to vulnerable communities, and provide a platform for hate speakers.</p>
<p><strong>5.</strong> Changing the test of whether unlawful conduct has occurred from the experience of a member of the targeted group to a “reasonable member of the Australian community”. This <a href="https://www.ag.gov.au/Consultations/Documents/Attachment%20A.pdf">suggestion was included</a> in the ill-fated attempt to reform 18C in 2014. </p>
<p>Implementing this recommendation would mean a complete reframing of the way in which racial vilification is conceptualised in federal law. Currently, 18C is the only racial vilification law in Australia in which the test of whether conduct is unlawful depends on the response of the group targeted by the vilification. This is a great strength.</p>
<p>Changing to a test of whether a “reasonable” person in the community would regard an expression as vilifying or not would discount the lived experience of targets of vilification, and thereby reduce the likelihood of a complaint being upheld. People who are not the targets of vilification are simply not able to understand its effects in the ways that those who are targeted experience it.</p>
<h2>Where to from here?</h2>
<p>On the whole, this report is unhelpful. It has failed to resolve the key issues at stake in terms of the text of section 18C. Given the inability of the committee to reach agreement on suggestions for textual reform, the parliament should leave 18C unchanged.</p><img src="https://counter.theconversation.com/content/73752/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katharine Gelber has received funding from the Australian Research Council and the Academy of Social Sciences Australia.</span></em></p>The much-anticipated report has offered little in the way of a solution to the disagreement over section 18C, so parliament should leave it as it is.Katharine Gelber, Professor of Politics and Public Policy, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/730492017-02-16T19:12:22Z2017-02-16T19:12:22ZAustralians believe 18C protections should stay<figure><img src="https://images.theconversation.com/files/156873/original/image-20170215-19613-1gllito.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Author</span></span></figcaption></figure><p>While debate over the merits of Section 18C of the Racial Discrimination Act continues to rage, new research shows that an overwhelming majority of Australians support legislation that prevents insults on the basis of race, culture or religion. </p>
<p><a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Additional_Documents">We found</a> that just 10% of Australians believe people should have the freedom to “insult” and “offend” people on the basis of race, culture or religion. Over 75% are opposed. The poll, conducted by Essential Research for the Cyber Racism and Community Resilience (CRaCR) and <a href="https://www.westernsydney.edu.au/challengingracism/challenging_racism_project">our other Challenging Racism research projects</a>, undermines <a href="http://freedomwatch.ipa.org.au/2017/01/poll-australians-value-freedom-of-speech/">other claims</a> that nearly 50% of Australians want the key words removed from Section 18C.</p>
<p>A parliamentary <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia">inquiry into 18C</a> is moving towards its climax, with the committee due to report by February 28. It has been a mammoth task for the committee members, with thousands of submissions and dozens of witnesses.</p>
<p>Section 18C makes it unlawful to offend, insult, humiliate or intimidate someone on the basis of race and culture. It has been under attack from conservative commentators and politicians after News Ltd columnist Andrew Bolt <a href="http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918">was found to have breached</a> 18C without an acceptable defence under the related Section 18D.</p>
<p>In the 2013 election, then prime minister <a href="http://www.abc.net.au/news/2014-04-22/racial-discrimination-act-promise-check/5364682">Tony Abbott pledged</a> to get rid of the section. Attorney-General George Brandis <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2014/First%20Quarter/25March2014-RacialDiscriminationAct.aspx">attempted to do this</a> in 2014. A strong push-back by community groups forced Abbott to abandon the changes. </p>
<p>After the 2016 election, conservatives such as Cory Bernardi, in tandem with the Institute for Public Affairs, <a href="http://www.abc.net.au/news/2016-08-30/cory-bernadi-leads-coalition-push-to-change-18c-race-hate-laws/7796356">reactivated the campaign</a> to remove section 18C, though limiting their reach to excising the words “insult” and “offend”. </p>
<p>As we <a href="https://theconversation.com/what-did-galaxys-poll-tell-us-about-freedom-of-speech-and-18c-not-what-the-ipa-said-it-did-72197">reported on February 1</a>, the “truth” about what Australians think of and want to happen with 18C has been a matter of critical interest. The Australian newspaper has been a sustained campaigner for removing 18C. It <a href="http://www.theaustralian.com.au/opinion/editorials/the-racism-at-the-core-of-18c/news-story/ac7e4a21b410bef42cb3c9ad9729ce99">argues the law is too great a threat to freedom of speech</a>.</p>
<p>CRaCR commissioned Essential to include four questions in its February 8 omnibus poll. We asked whether people agreed or disagreed with the propositions that “people should be free to offend/ insult/ humiliate/ intimidate someone on the basis of their race, culture or religion”. The finding is that Australians do not support this proposition. Only 5 to 10% champion such “freedoms”.</p>
<p>Our simple question formats eschewed any prelude points concerning “competing freedoms” or double-barrel questions as in the <a href="https://www.ipa.org.au/portal/uploads/IPA_Media_Release_Free_Speech_Not_A_Fringe_Issue_Poll_170131.pdf">Galaxy poll</a>.</p>
<p>After <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=COMMITTEES;id=committees%2Fcommjnt%2Fa4a748b7-be67-4d2d-a0f0-5fe751327781%2F0008;query=Id%3A%22committees%2Fcommjnt%2Fa4a748b7-be67-4d2d-a0f0-5fe751327781%2F0000%22">we gave evidence to the parliamentary inquiry</a>, and were questioned on the apparently conflicting findings, we set out to generate transparent and valid data. We developed a simple test to discover the extent to which Australians believe that people should be free to offend, insult, humiliate or intimidate others on the basis of race, culture or religion. This would be the consequence of removing Section 18.</p>
<p><a href="https://theconversation.com/what-do-australian-internet-users-think-about-racial-vilification-24280">Our research in 2014</a> asked if people thought it should be unlawful to do what 18C covered. On the insult and offend questions, support for the law was 72% and 66%, while on humiliate and intimidate it rose to 74% and 79%. The <a href="http://freedomwatch.ipa.org.au/2017/01/poll-australians-value-freedom-of-speech/">IPA claimed since</a> then there had been a major shift towards accepting the removal of these first two conditions of vilification. </p>
<p>Our new research demonstrates this is not the case. Our Essential sample was representative (by age, gender, region and so on). Our four questions were aimed to test whether people supported removing insult and offend from 18C. We found that Australians have increased their support for protections from insulting and offensive attacks on the basis of race, culture and religion. </p>
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<p>Only 5 to 10% of Australians support the right to offend on the basis of race, culture or religion. Those who are younger, and males, are more likely to support these freedoms. </p>
<p>In our <a href="https://www.westernsydney.edu.au/challengingracism/challenging_racism_project">other surveys over the past decade</a>, we have found that about the same proportion of Australians (one in ten) hold negative views about diversity and “races”. For example, around 10-12% believe that some races are superior to others, and that groups should not intermarry. These are indicators of racial supremacism and racial separatism. </p>
<p>There may well be those who support these freedoms from a Voltaire-inspired conviction about the right to offend, insult, humiliate or intimidate. However, analysis of the 2014 CRaCR survey data has found statistical associations between authors of online racism, racist dispositions and a preference for the freedom to offend. Authors of racism, with racist views, most want the right to be racist.</p>
<p>The political implications are also of interest. Focusing just on “offend” and “insult”, the spread confirms that the left of the political spectrum is more opposed to licensing hate than the right. </p>
<p>Support for the freedom to offend ranges from 7% (ALP and Greens) to 11% (LNP) and up to 16% with Others and Independents. Opposition to the freedom to offend peaks with the Greens (86%), but still sits at 70% for Independents.</p>
<p>Support for the freedom to insult ranges from 5% (ALP) and 8% (Greens) to 12% (LNP) and up to 13% with Others and Independents. Opposition to the freedom to insult peaks with the Greens (88%), but still sits at 72% for Independents.</p>
<p>This evidence suggests that over the past three years, despite incessant campaigning by pro-vilification proponents, Australians’ appetite for the “<a href="https://theconversation.com/race-act-changes-are-what-you-get-when-you-champion-bigotry-24782">right to be bigots</a>” has declined.</p>
<p>The impression we gain is that civility remains a high value. Whatever peoples’ valuing of freedom of speech, which is very high, they do not think that such a freedom should encompass the insulting and offending of people on the basis of race, culture or religion.</p>
<p>Moreover, this trend reverberates with the finding of <a href="http://www.essentialvision.com.au/abuse-and-violence">another Essential poll in late 2016</a>, where Australians worry that insulting people on the basis of race and religion is rising. </p>
<p>Now it’s over to the committee, parliament and the people.</p><img src="https://counter.theconversation.com/content/73049/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Jakubowicz has been funded by the Australian Human Rights Commission for a Linkage ARC project on cyber-racism. He was part of the research team that gave evidence to the Parliamentary Inquiry into 18C (freedom of speech). </span></em></p><p class="fine-print"><em><span>Kevin Dunn receives research funding for related survey work from the Australian Research Council and SBS.</span></em></p><p class="fine-print"><em><span>Rachel Sharples does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>How do we know what we think we know? Accuracy, care and rigorous method gets us somewhere there, especially on issues like racism.Andrew Jakubowicz, Professor of Sociology, University of Technology SydneyKevin Dunn, Dean of the School of Social Science and Psychology, Western Sydney UniversityRachel Sharples, Research Assistant, Challenging Racism Project, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/721972017-01-31T22:39:55Z2017-01-31T22:39:55ZWhat did Galaxy’s poll tell us about freedom of speech and 18C? Not what the IPA said it did<figure><img src="https://images.theconversation.com/files/154921/original/image-20170131-13257-1ue838c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Liberal MP Ian Goodenough is chairing a parliamentary inquiry into freedom of speech in Australia.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>In evidence to the parliamentary inquiry into freedom of speech on Tuesday, the Institute for Public Affairs (IPA) think-tank tendered a statement based on a survey it had commissioned from Galaxy Research. The Australian newspaper covered this polling <a href="http://www.theaustralian.com.au/national-affairs/pc-culture-muzzling-free-speech-says-poll/news-story">as a front-page “exclusive”</a>.</p>
<p>The second paragraph in the <a href="https://www.ipa.org.au/portal/uploads/IPA_Media_Release_Free_Speech_Not_A_Fringe_Issue_Poll_170131.pdf">IPA’s media release</a> claimed – without evidence – that there was set to be much surprise among the media and the political class that 95% of Australians think “free speech matters”.</p>
<p>The release then reported that 48% of people supported removing the words “insult” and “offend” from <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C of the Racial Discrimination Act</a>.</p>
<p>The IPA actually wants the <a href="http://freespeech.ipa.org.au/">whole of 18C removed</a>. But the way forward since then-prime minister Tony Abbott <a href="https://theconversation.com/grattan-on-friday-how-abbott-united-the-greens-and-the-institute-of-public-affairs-30290">baulked at the gate</a> on the <a href="https://theconversation.com/race-act-changes-are-what-you-get-when-you-champion-bigotry-24782">changes proposed by his attorney-general, George Brandis</a>, in 2014 has been this apparently minor surgery to the less serious end of the unlawful quartet (the others being “humiliate” and “intimidate”).</p>
<p>But is the IPA’s statement a fair reading of the Galaxy polling? And was the research fair to start with?</p>
<h2>Questions of methodology and polling</h2>
<p>According to a Galaxy spokesperson whom I spoke with on Tuesday, no attempt was made to ensure the sample included a representative component of Indigenous and non-Anglo or overseas-born Australians. </p>
<p>Such data was not collected as part of the study as the client (the IPA) had not asked for it, so the results could not be profiled on these criteria. Yet these are the people 18C is <a href="https://theconversation.com/repealing-18c-would-leave-jews-exposed-as-muslims-already-are-36131">mostly designed to protect</a>.</p>
<p>Chances are that an average online panel (the Galaxy polling was done mainly online) won’t include many Indigenous people, people with poor English, or people from minority refugee communities – that is, the primary targets of race hate speech. We had to work hard to ensure <a href="https://theconversation.com/what-do-australian-internet-users-think-about-racial-vilification-24280">our online survey</a> on a similar issue included enough minority-group Australians to ensure statistical accuracy.</p>
<p>The IPA research was two questions in the regular Galaxy omnibus survey, which seeks to control only for age, gender and region. It also looks at shopping patterns.</p>
<p>The first question was:</p>
<blockquote>
<p>How important is freedom of speech to you?</p>
</blockquote>
<p>This was designed to position the respondent positively to the question and its point of view.</p>
<p>The second question was:</p>
<blockquote>
<p>Do you approve or disapprove of the proposal to change the Racial Discrimination Act so that it is no longer unlawful to “offend” or “insult” someone because of their race or ethnicity? It will still be unlawful to “humilitate” or “intimidate” someone because of their race or ethnicity.</p>
</blockquote>
<p>This aims to deliver the coup de grâce that reinforces the desired outcome. </p>
<p>So, more than 95% of those polled thought freedom of speech was important. This is a no-brainer. Had the question been – as other surveys <a href="https://theconversation.com/what-do-australian-internet-users-think-about-racial-vilification-24280">have put it</a> – “Is freedom of speech more important than freedom from hate?”, the percentage of those in favour may well have come down significantly. Or if that question were to be reversed, even more so. But we will never know.</p>
<p>Then the question of removing “insult” and “offend” was put. Less than half of any group supported this. Given the preparatory question and the lack of information about the implications or impact, this is less than one might have predicted.</p>
<p>However, neither Galaxy nor the IPA discussed the most interesting data.</p>
<h2>Youth responses show IPA conclusions invalid</h2>
<p>In the Galaxy poll, the 18-24 age group had the highest commitment to freedom of speech but the lowest support for removing “insult” and “offend” from 18C – by a long way. </p>
<p>So, a suggestion that a commitment to freedom of speech necessarily carries with it support for amending 18C is simply false. There is no simple correlation. They appear to be independent variables, though mediated by some other factor – probably social media use. </p>
<p>There is a much better explanation which neither Galaxy nor the IPA evoked.</p>
<p>The 18-24 age bracket comprises the true digital natives; a very high proportion are regular users of social media. <a href="https://theconversation.com/what-do-australian-internet-users-think-about-racial-vilification-24280">Our research</a> shows they have the highest rate of encounters with racist hate speech. They are usually witnesses, though sometimes are targets. Most encounters with online hate happen on Facebook (40%), YouTube (20%) and in comment threads on news media site (15%). </p>
<p>Digital natives value freedom. But they also want vulnerable people protected and civility enhanced. And they don’t trust sites like Facebook, YouTube or Google to do that – nor, it must be said, government. </p>
<p>In our research, young people were among the least likely to want offending someone on the basis of race to be lawful, just like those surveyed by Galaxy for the IPA. However, they were more likely to hold a neutral position than older people; they were more reluctant to force regulation, but more aware of what racism <a href="https://theconversation.com/does-racism-make-us-sick-63641">did to its targets</a>.</p>
<p>The people most in support of retaining 18C in our study but not in Galaxy’s were the older group, who are far less likely to use social media and thus encounter cyber-racism. In our study, the people most likely to want the right to offend people were those who identified themselves as authors of racist material. </p>
<p>So, it follows that the less racism you encounter that you don’t want to see, the less likely it is that you’ll worry about it. The more you want to freely offend people, the more likely it is you author racist material. </p>
<p>Lucky I read the report – or you’d never have known quite what the IPA was selectively trying to slip through to the inquiry and the press. Be sure, though, that the claim most Australians want 18C gutted in the name of freedom of speech simply is not supported by evidence.</p><img src="https://counter.theconversation.com/content/72197/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Jakubowicz has partnered with the Australian Human Rights Commission on research into cyber racism. The AHRC is the target of the IPA attack on Section 18C. His joint ARC research project has received funds from the AHRC. The submission by the Cyber racism and Community resilience Research Group is at <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Submissions">http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Submissions</a> sub. 54, with the IPA at 58. </span></em></p>Neither Galaxy Research nor the Institute of Public Affairs think-tank discussed the most interesting data they garnered from polling on free speech and reform to Section 18C.Andrew Jakubowicz, Professor of Sociology, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/680702016-12-06T19:08:11Z2016-12-06T19:08:11ZAustralia’s human rights debate has always been political<figure><img src="https://images.theconversation.com/files/148802/original/image-20161206-25749-w2uzlj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Human Rights Commission president Gillian Triggs</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>Human rights have been a hot topic of late. The <a href="https://www.humanrights.gov.au/">Australian Human Rights Commission</a> president, <a href="https://www.thesaturdaypaper.com.au/news/politics/2016/04/23/human-rights-commission-president-gillian-triggs-speaks-out/14613336003160">Gillian Triggs</a>, has been accused of politicising her position, while The Australian newspaper and conservative politicians have led a campaign against Section 18C of the Racial Discrimination Act.</p>
<p>Why has Australia’s long commitment to human rights bodies and legislation suddenly become such an issue? After all, the Human Rights Commission celebrates what amounts to its 35th anniversary this year, and Section 18C has been on the books for more than 20 years.</p>
<p>Answering these questions involves in part looking at Australia’s previous reception of human rights. Contrary to federal minister Christopher Pyne’s recent <a href="http://www.smh.com.au/federal-politics/political-news/stay-out-of-politics-and-stick-with-human-rights-christopher-pyne-admonishes-gillian-triggs-20161022-gs8hwl.html">suggestion</a> that Triggs “stay out of politics and stick with human rights”, Australia’s historic engagement with human rights norms has always been informed by the politics and prejudices of the day.</p>
<h2>Human rights in history</h2>
<p>Although Australia was one of eight nations that drafted the 1948 Universal Declaration of Human Rights, it was slow to embrace these principles domestically. </p>
<p>Commenting on the impending 15th anniversary of the declaration in 1963, one department of external affairs bureaucrat pronounced himself a “sceptic” about such commemoration. A “routine press release” would suffice, at least “while we have discriminatory racial laws in the states and a racial immigration policy”.</p>
<p>Talking up human rights, it was feared, might draw unwanted attention to Australia’s less-than-stellar record. Equally, the declaration lacked enforceable agreements to back up human rights. As the surprisingly forthright external affairs minister, Paul Hasluck, put it at a Human Rights Year gathering in 1968, it was a document “that a nation would not mind having quoted against itself”.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=320&fit=crop&dpr=1 600w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=320&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=320&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=402&fit=crop&dpr=1 754w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=402&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=402&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A commemorative stamped envelope released by Australia Post to mark Human Rights Year, 1978.</span>
<span class="attribution"><span class="source">Supplied by author</span></span>
</figcaption>
</figure>
<p>This changed in the 1970s. The Whitlam government signed the twin covenants associated with the declaration in 1972, but was unable to make significant further progress. Only the Racial Discrimination Act passed before the government’s dismissal. In March 1976, enough nations had ratified the twin covenants to make them enforceable and, as such, a matter of urgency for the new Fraser government.</p>
<p>This was a time of global momentum in human rights. <a href="https://www.nobelprize.org/nobel_prizes/peace/laureates/1977/amnesty-facts.html">Amnesty International</a> received the Nobel Peace Prize in 1977 and US President Jimmy Carter began talking of their <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674724853">centrality</a> to a post-Vietnam foreign policy.</p>
<p>In 1978, the 30-year anniversary of the Universal Declaration of Human Rights, the Fraser government embarked on a large-scale commemorative project and proposed a human rights commission as a significant step towards Australia’s ratification of the covenants.</p>
<h2>Creating the commission</h2>
<p>The Whitlam government had proposed a human rights bill in 1973, which floundered in a debate about interference in state matters – particularly concerning Indigenous Australians. </p>
<p>From 1976 onward, the Fraser government took steps down a similar path, yet the bill’s failure to pass until 1981 highlighted the strength of debate. While everyone professed to support inalienable human rights, the definition was not at all certain, and they became a political football. </p>
<p>One of the biggest issues that slowed the bill’s passage was how to define the Universal Declaration of Human Rights’ “right to life”. A woman’s right to terminate a pregnancy – then and now subject to various restrictive state laws – was a big issue in Australia at the time. Anti-abortion groups sought to appropriate rights to their agenda.</p>
<p>In 1974, one Methodist minister <a href="http://nla.gov.au/nla.news-article110760798">remarked</a> that the proposed bill “allows a person to be deprived of their life if it be according to the law”. Such concerns were the main reason for the bill’s lengthy stay in parliament. </p>
<p>In 1980, an <a href="http://nla.gov.au/nla.news-article110584178">amendment</a> was made to the proposed bill to include “the rights of the unborn child”. While this appeased an anti-abortion majority in the lower house, it stalled in a hostile Senate. </p>
<p>This is just one example of the political scuffles that dogged the early operations of the commission. It was launched on December 10, 1981, and replaced in 1986 by the Human Rights and Equal Opportunity Commission. The topics of debate ranged from the rights of the family to socially constructed gender norms. Drawing distinctions between “politics” and “human rights” didn’t make sense then, and certainly doesn’t now.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=448&fit=crop&dpr=1 600w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=448&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=448&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=563&fit=crop&dpr=1 754w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=563&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=563&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Human Rights Commission workers informing the public at a Human Rights Day picnic in 1985.</span>
<span class="attribution"><span class="source">Federal Department of Information</span></span>
</figcaption>
</figure>
<h2>Words that wound</h2>
<p>The Racial Hatred Act inserted Section 18C into the Racial Discrimination Act. But its core principles had been the topic of fierce discussion for decades. </p>
<p>Conservative pressure had led to a similar provision being deleted from the original legislation in 1975. However, a late 1970s <a href="https://hatfulofhistory.wordpress.com/2015/11/28/forming-the-national-front-of-australia-asio-and-the-fledgling-far-right-group/">rise in hate groups and fascist violence</a> sparked renewed demands for laws to deal with “racist propaganda”. </p>
<p>The commission sponsored a conference titled “Words that Wound” in 1982, where a remarkable range of opinions echoed those of today. </p>
<p>Participants did not express a desire to trample freedom of speech, even at a time when 55% of Australians were polled as opposing a multicultural Australia. Instead, they wanted simply to control the flow of racist publications. These often encouraged violence and, as then commissioner Dame Roma Mitchell put it, were “perhaps the most hurtful barb” a minority group could receive. </p>
<p>The same issues that court conservative animosity today stirred passions among progressives in the 1980s. A representative of the Greek-Australian community forcefully defended “a right that is most precious to us – our freedom to express ourselves”. The chairman of the Association for Immigration Reform also cautioned that such laws could well be used against Indigenous activists campaigning for a treaty with white Australia. </p>
<p>Such concerns were also in the minds of those drafting the legislation. The result was that our current laws give ample protections for free speech, with only the most <a href="http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918">egregious</a> cases prosecuted.</p>
<p>Equally, though, recent <a href="http://www.abc.net.au/news/2016-12-06/chinese-australians-racist-discrimination-asian-mandarin-vietnam/8092926">findings</a> that one-third of young Australians face racial discrimination raise questions over whether the Racial Discrimination Act’s topical treatments of racist outbursts is enough to deal with a broad, systemic problem.</p>
<p>Historicising both the Australian Human Rights Commission’s foundation and initial debates about legislative limitations on hate speech demonstrates that human rights have never been above politics. Equally, questions of freedom of expression were as much on the lips of past proponents of these laws as their contemporary detractors.</p><img src="https://counter.theconversation.com/content/68070/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jon Piccini does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Looking back at the Australian Human Rights Commission’s foundation shows that human rights have never been above politics.Jon Piccini, UQ Research Fellow, School of Historical and Philosophical Inquiry, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/683542016-11-15T02:33:55Z2016-11-15T02:33:55ZChange Section 18C? Critics should do this crash course first<p>The federal government has announced a <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/FourthQuarter/Parliamentary-inquiry-into-freedom-of-speech.aspx">parliamentary inquiry</a> into free speech and section 18C of the Racial Discrimination Act.</p>
<p>So the time is right for a crash course on <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">the law</a>, <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">its exemptions</a>, and <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/">the powers of the Australian Human Rights Commission</a>. </p>
<p>Let’s start with the basics.</p>
<h2>Can the Australian Human Rights Commission sue a person under 18C?</h2>
<p>No. It couldn’t even if it wanted to.</p>
<p>The parliamentary inquiry was announced in the wake of the Prior v QUT <a href="https://castancentre.files.wordpress.com/2016/11/prior-v-qut.pdf">case</a>, in which the federal court <a href="https://www.theguardian.com/australia-news/2016/nov/04/qut-computer-lab-racial-discrimination-lawsuit-thrown-out">dismissed claims</a> brought under section 18C of the Racial Discrimination Act against three Queensland University of Technology (QUT) students. </p>
<p>In that case, an Indigenous QUT staff member Cindy Prior <a href="https://castancentre.files.wordpress.com/2016/11/prior-v-qut.pdf">alleged</a> that Facebook comments made by the students after they were ejected from a computer lab reserved for Indigenous students breached section 18C of the Racial Discrimination Act.</p>
<p>Following the decision, Prime Minister Malcolm Turnbull <a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-says-human-rights-commission-has-damaged-its-reputation-over-18c-and-must-reform-20161106-gsjc2i.html">told</a> the ABC that the Human Rights Commission:</p>
<blockquote>
<p>has done a great deal of harm to its credibility by bringing the case against the Queensland students.</p>
</blockquote>
<p>That may have left some people under the mistaken impression that the Commission sued the students. It did not, and could not. </p>
<p>The Commission has no power to litigate in relation to an alleged breach of section 18C or any other provision of the Racial Discrimination Act. Only a person alleging their own racial or ethnic group was vilified by statements made in public can commence court proceedings. </p>
<p>That is exactly what happened in the Prior v QUT case. After the Commission terminated Prior’s complaint in August 2015, having decided there was no reasonable prospect of the complaint being successfully conciliated, Cindy Prior exercised her right to commence court proceedings. Her claim was summarily dismissed in relation to three of the named respondents. Proceedings continue for others.</p>
<p>The Commission has been at pains to point out that they did not “bring the case” to court, saying that:</p>
<blockquote>
<p>At no stage does the Commission initiate or prosecute a complaint. </p>
</blockquote>
<p>In the QUT case, <a href="http://www.theaustralian.com.au/higher-education/qut-race-case-the-punishment-is-the-process-says-alex-wood/news-story/af1c3975a427d1a6d04619347c5d6dbe">the Commission was criticised</a> for not communicating with all of the students involved, taking too long to attempt to address the original complaint, and not terminating the complaint earlier. These criticisms should be assessed on their merits and, as appropriate, lessons learned.</p>
<h2>Is the bar “set too low”?</h2>
<p>Not according to the courts. </p>
<p><a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-says-human-rights-commission-has-damaged-its-reputation-over-18c-and-must-reform-20161106-gsjc2i.html">Critics</a> of 18C have <a href="https://www.google.com.au/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=qut%20bar%20set%20too%20low">suggested</a> the “bar is set too low” because section 18C uses the phrase “offend, insult, humiliate or intimidate” to define the threshold for unlawful racial vilification. </p>
<p>In the Prior v QUT case, Judge Jarrett <a href="https://castancentre.files.wordpress.com/2016/11/prior-v-qut.pdf">found</a> that the Facebook comments of two of the respondents did not meet the legislative threshold and therefore were not unlawful. (In the case of the third respondent, the judge found that it could not be proven that the student had been responsible for the allegedly vilifying Facebook comment.) </p>
<p>In stark contrast to the <a href="http://www.theaustralian.com.au/opinion/columnists/grace-collier/no-offence-intended-modern-rights-mean-fewer-rights-for-majority/news-story/d3e71cddd43cfa433d54aaff1cd514bb">regular attempts by some opponents</a> to generate hostility towards section 18C by saying it covers any offence, the courts have consistently ruled that the bar is not low.</p>
<p>Previous <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2001/1007.html">judgments</a> have clarified that breaching 18C requires conduct with</p>
<blockquote>
<p>profound and serious effects, not to be likened to mere slights. </p>
</blockquote>
<p>So the QUT decision confirms that the legislature and judiciary have made a fair assessment of where the line should be drawn.</p>
<p>It’s also important to remember that <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">section 18D</a> of the Act details exemptions to 18C, which covers anything said or done as part of an artistic work or “any other genuine purpose in the public interest”.</p>
<h2>Has 18C always been a big issue?</h2>
<p>Not really. </p>
<p>Section 18C <a href="http://www.austlii.edu.au/au/legis/cth/num_act/rha1995109/">was introduced in 1995</a> recognising that racial vilification is a problem that could and should be tackled. </p>
<p>It has operated without much attention or fuss for over two decades. It is not a panacea, but it <a href="http://www.austlii.edu.au/au/journals/UNSWLawJl/2016/18.html">has supported legal redress</a> in a modest number of instances where individuals and communities have been subjected to racist abuse that none of us should have to endure.</p>
<p>Of the hundreds of instances of alleged racial vilification over the years, only three have been regarded as sufficiently noteworthy to attract significant media attention and public comment.</p>
<p>One in 2011 involved journalist Andrew Bolt, who was <a href="http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918">found</a> in the Federal Court to have breached the Act. Then there was the QUT case. The third, which centred on a cartoon by Bill Leak, was recently <a href="http://www.abc.net.au/news/2016-11-12/eric-abetz-welcomes-bill-leak-cartoon-complaint-withdrawal/8020420">before the Commission and then subsequently withdrawn</a>. </p>
<p>Is there any other area of the law in which three controversial decisions in over 20 years would be regarded as a reason for a parliamentary inquiry? </p>
<p>Or where one instance of summary dismissal is regarded as proof of a fatal flaw? What is it about laws designed to address the harm caused by racist speech that makes some people so agitated?</p>
<p>Over the last 25 years only 1.8% of racial vilification complaints nationally <a href="https://theconversation.com/explainer-how-do-australias-laws-on-hate-speech-work-in-practice-26105">have ended up in a court or tribunal for adjudication</a>. Court cases are the exception, not the rule.</p>
<p>The conciliation process overseen by the Australian Human Rights Commission (and equivalent bodies in the states and territories) is confidential. This means the public rarely hears about the typical cases in which a racial vilification complaint is resolved. </p>
<p>This reflects a decision taken many decades ago that, in the area of anti-discrimination, mediation-based dispute resolution processes are preferable to protracted, expensive litigation in courts. Thousands of complainants and respondents would agree.</p>
<h2>A strong symbolic message</h2>
<p>Section 18C is no more or less flawed than many other laws. Because it is limited to matters of substantial public harm, it cannot be used to complain about having one’s feelings hurt. </p>
<p>Critics have called for the words “insult” and “offend” to be removed from section 18C. But this would likely have no legal effect; remember, previous judgements have said that conduct must have “profound and serious effects” before one can say 18C has been breached.</p>
<p>However, removing these words would send a troubling symbolic message to the communities that section 18C is supposed to protect: that the government feels they should bear the burden of more harm so that others can have free speech. Could there be a more wrong message to send at this time in our history?</p><img src="https://counter.theconversation.com/content/68354/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katharine Gelber has received funding from the Australian Research Council and the Academy of Social Sciences Australia.</span></em></p><p class="fine-print"><em><span>Luke McNamara has received funding from the Australian Research Council.</span></em></p>The time is right for a crash course on section 18C of the Racial Discrimination Act, its exemptions and the powers of the Australian Human Rights Commission.Katharine Gelber, Professor of Politics and Public Policy, The University of QueenslandLuke McNamara, Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/682352016-11-06T20:27:38Z2016-11-06T20:27:38ZQUT discrimination case exposes Human Rights Commission failings<figure><img src="https://images.theconversation.com/files/144694/original/image-20161106-27904-gfgmq3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">QUT student Calum Thwaites arrives at the Federal Court in Brisbane.</span> <span class="attribution"><span class="source">AAP/Dan Peled</span></span></figcaption></figure><p>In a decision that was seen as a litmus test for the controversial <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">section 18C</a> of the <em>Racial Discrimination Act 1975</em> (Cth) (RDA), <a href="https://theaustralianatnewscorpau.files.wordpress.com/2016/11/prior-v-queensland-university-of-technology-ors-no-2-2016-fcca-2853.pdf">the Federal Circuit Court has dismissed</a> Cindy Prior’s case against Queensland University of Technology students Alex Wood, Calum Thwaites and Jackson Powell. Prior had alleged that these students breached <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">section 18C</a>. Judge Michael Jarrett concluded that Prior’s claim against them had <a href="http://www.austlii.edu.au/au/legis/cth/consol_reg/fccr2001262/s13.10.html">no reasonable prospect of success</a>.</p>
<h2>What was the case about?</h2>
<p>On May 28, 2013, Wood and two other students were using a QUT computer lab when Prior asked them whether they were indigenous. They replied they weren’t. Prior then asked them to leave.</p>
<p>Later that day, on the “QUT Stalkerspace” Facebook page, Wood posted:</p>
<blockquote>
<p>Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation…?</p>
</blockquote>
<p>Many people commented. Powell posted:</p>
<blockquote>
<p>I wonder where the white supremacist computer lab is…. </p>
</blockquote>
<p>Prior alleged that Thwaites posted “ITT niggers”. (A claim that Thwaites has <a href="http://www.theaustralian.com.au/higher-education/offer-to-drop-qut-race-slur-case-for-5000/news-story/2cd2f6b1598d776a49acd14ef2f9bcba">always categorically denied</a>.)</p>
<p>Prior complained to QUT about these and other comments, which were promptly removed. However, Prior was ultimately unhappy with QUT’s handling of the matter and lodged a complaint in the Australian Human Rights Commission (AHRC).
The AHRC conciliated Prior’s complaint. However, it did not contact the students directly about the complaint or the conciliation conference. Instead, it left this task to QUT. <a href="http://www.theaustralian.com.au/national-affairs/indigenous/watchdog-kept-18c-respondent-in-the-dark-about-qut-complaint/news-story/b5aa4706ba62548bd20353bd1682f31b">Powell did not know about Prior’s complaint</a> until after the conciliation conference.</p>
<p>Conciliation failed, and Prior commenced proceedings in the Federal Circuit Court against QUT, certain QUT employees, and a number of QUT students including Wood, Thwaites and Powell. <a href="http://www.theaustralian.com.au/higher-education/racial-stoush-erupts-over-qut-computer-lab/news-story/b80de339339f2d5588839ac06f3c8909">Prior’s claim was for A$247,570.52</a>. Prior alleged that the students had breached 18C. She also alleged that QUT and its employees had breached <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s9.html">section 9</a> of the RDA.</p>
<p><a href="http://www.theaustralian.com.au/higher-education/offer-to-drop-qut-race-slur-case-for-5000/news-story/2cd2f6b1598d776a49acd14ef2f9bcba">A number of students settled with Prior.</a> Wood, Thwaites and Powell brought an application for Prior’s case to be summarily dismissed. (It should be noted that Prior’s case against QUT, its employees, and student Chris Lee continues despite her case being dismissed against Wood, Thwaites and Powell.)</p>
<h2>Why did Judge Jarrett decide the way he did?</h2>
<p>For Wood and Powell, Judge Jarrett concluded that an ordinary and reasonable member of a group of Aboriginal and Torres Strait Islanders (either students or generally), who had the characteristics of a member of a fair and tolerant society, would not be reasonably likely to find their statements offensive, insulting, humiliating or intimidating. Wood’s statements were against both QUT and racial discrimination generally. Powell’s statements, when read in the context of other comments, were “a poor attempt at humour”. In any event, both Wood’s and Powell’s statements amounted to “mere slights”, thereby not meeting the threshold 18C requires. Finally, neither Wood or Powell made their statements because of Prior’s race, or because of the race of the relevant groups.</p>
<p>Judge Jarrett decided Prior’s claim against Thwaites differently. Thwaites had provided evidence that he could not have posted the comments Prior alleged. Despite having opportunity to do so, Prior provided no evidence contradicting Thwaite’s evidence. Hence, Judge Jarrett concluded Prior could not sustain a case against Thwaites.</p>
<h2>Why did this case generate controversy?</h2>
<p>18C’s supporters point to decisions like this one to say that the system works: a weak claim was dismissed at an early stage. However, this case in fact highlights significant problems with 18C.</p>
<p>First, the <a href="http://www.steynonline.com/7588/free-speech-does-not-include-legal-bills">process itself is the punishment</a>. A summary dismissal application involves the filing of pleadings, affidavits and submissions, and appearing in court. There are significant costs in time, money and stress. A dispute that arose in May 2013 has taken until November 2016 to resolve. Tony Morris QC and Michael Henry <a href="http://www.theaustralian.com.au/news/nation/a-black-and-white-issue-from-both-sides-of-the-fence/news-story/abe946f4aae908b6ec621bdadcf3999b">have acted pro bono</a> for Wood, Thwaites and Powell. But most people are not so fortunate.</p>
<p>In applications like these, legal fees frequently exceed A$10,000, and often go much higher. Most people simply cannot afford to defend themselves, <a href="http://www.theaustralian.com.au/opinion/there-will-never-be-winners-under-section-18c-as-it-stands/news-story/1bacb30956b99217e34116f222196ff2?login=1">and legal aid is unavailable</a>. Hence, it is unsurprising that other QUT students <a href="http://www.theaustralian.com.au/higher-education/offer-to-drop-qut-race-slur-case-for-5000/news-story/2cd2f6b1598d776a49acd14ef2f9bcba">settled their cases with Prior for A$5,000</a>, even though they probably could have successfully defended themselves.</p>
<p>In addition to <a href="http://www.theaustralian.com.au/news/nation/qut-computer-lab-racism-case-thrown-out-by-federal-circuit-court/news-story/5132ee2ebdc6a6366f5bfcd4e4dad013">the costs in time and stress</a>, and despite being “cleared”, the QUT students’ reputations have suffered enormously. The stain of being an alleged racist will be hard to remove. <a href="http://www.theaustralian.com.au/higher-education/section-18c-teaching-cases-can-end-dreams/news-story/dee28734e8ead0efd89243ed4e471caf">Thwaites has abandoned becoming a school teacher</a> because parents or students may Google his name and find he was accused of racism.</p>
<p>Second, the AHRC’s conduct in this case has been disgraceful. Judge Jarrett’s dismissal of this case raises the question of why the AHRC did not initially reject Prior’s complaints against the students. That the AHRC proceeded to conciliation may have given Prior false hope that her case against them had merit. <a href="http://www.theaustralian.com.au/opinion/columnists/nick-cater/tim-soutphommasanes-grievance-industry-sees-bigots-everywhere/news-story/bfd5162bff06cf8dd86bc06059ff1e80">Nick Cater notes</a> that, from 2001 to 2005, the AHRC rejected almost 30% of complaints. He also writes that under its most recent Presidents, Catherine Branson and Gillian Triggs, less than 5% have been rejected. The AHRC must exercise better judgement. </p>
<p>Further, it is astounding that <a href="http://www.theaustralian.com.au/higher-education/qut-students-demand-apology-from-hurman-rights-commission-in-race-case/news-story/6afd0c478acd990050a663e7cd746c0f">the AHRC left it to QUT</a> to contact students about the conciliation conference. The AHRC must contact each respondent directly. In defending its actions, the AHRC has stated that in such matters it <a href="http://www.brisbanetimes.com.au/queensland/qut-students-claim-human-rights-discrimination-20160429-goit14.html">“sometimes” leaves it to organisations to contact members who are respondents</a>, a practice <a href="http://www.theaustralian.com.au/national-affairs/indigenous/watchdog-kept-18c-respondent-in-the-dark-about-qut-complaint/news-story/b5aa4706ba62548bd20353bd1682f31b">Triggs has confirmed</a>. However, even if only done “sometimes”, the AHRC violates both fundamental principles of procedural fairness and what <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/s46pj.html">its own governing statute requires</a>. Indeed, that the Prior case does not appear to be an isolated instance of AHRC misconduct is deeply disturbing. Unsurprisingly, Thwaites and Powell <a href="http://www.theaustralian.com.au/higher-education/qut-students-demand-apology-from-hurman-rights-commission-in-race-case/news-story/6afd0c478acd990050a663e7cd746c0f">have lodged complaints</a> about this issue.</p>
<p>Unfortunately, until 18C is amended, repealed, <a href="https://theconversation.com/section-18c-is-too-broad-and-too-vague-and-should-be-repealed-64482">or struck down</a>, cases like this will arise in the future.</p><img src="https://counter.theconversation.com/content/68235/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Forrester receives an Australian Postgraduate Award.</span></em></p><p class="fine-print"><em><span>Auugusto Zimmerman is senior Vice President of the Liberal Party's Fremantle Division. He is also a member of the Law Reform Commission of Western Australia.</span></em></p><p class="fine-print"><em><span>Lorraine Finlay is affiliated with the Liberal Party of Australia, being a member of the WA Division.</span></em></p>The QUT students case was a litmus case for 18C- and it highlighted its serious flaws.Joshua Forrester, PhD Candidate in Law, Murdoch UniversityAugusto Zimmermann, Director of Postgraduate Research and Senior Lecturer in Law, Murdoch UniversityLorraine Finlay, Lecturer in Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/648012016-09-14T00:27:28Z2016-09-14T00:27:28ZSection 18C is an important part of a civilised society and no threat to free speech<figure><img src="https://images.theconversation.com/files/137141/original/image-20160909-13359-10i0czs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The norm is now that it is no longer OK to discriminate on the basis of race.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p><em>Who can say what to whom in Australia? In this six-part series, we look at the complex idea of freedom of speech, who gets to exercise it and whether it is being curtailed in public debate.</em></p>
<hr>
<p>One of the favoured strategies of commentators who oppose provisions like Section 18C of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/">Racial Discrimination Act</a> is to hark back to the “good old days” before “<a href="http://www.adelaidenow.com.au/news/opinion/dean-jaensch-proposed-section-18c-of-the-racial-discrimination-act-will-cross-the-free-speech-line/news-story/3affa40c3196193ed1b5e69f25481387">political correctness</a>” and the “<a href="http://freedomwatch.ipa.org.au/2013/03/the-overreach-of-the-human-rights-industry/">human rights industry</a>” started applying the shackles to what we say and do.</p>
<p>These were the days when there were no laws in the way, and people could speak and act beholden to nothing but their personal opinions. They could call a person of Asian descent a “<a href="https://en.wikipedia.org/wiki/Gook">gook</a>”; they could refuse to serve Aboriginal people at a pub because they were black.</p>
<p>Good old days? Not if you were on the receiving end.</p>
<p>Fortunately, social norms have changed for the better. For the last 40 years or so – embodied in federal, state and territory laws – the norm has been that it is no longer OK to discriminate on the basis of race.</p>
<p>Over the last 25 years, another norm has been written into Australian law. This started with the first Australian racial vilification law <a href="http://www.austlii.edu.au/au/legis/nsw/num_act/avaa1989n48466.pdf">enacted in New South Wales in 1989</a>, and was introduced by the federal parliament <a href="http://www.austlii.edu.au/au/legis/cth/num_act/rha1995109/">in 1995</a>. That social norm is that we should also avoid belittling, demeaning and marginalising people because of race or ethnicity.</p>
<p>These days very few people seriously contend that racial discrimination laws are an affront to democracy and fundamental freedoms. But some argue that racial vilification laws are another story – even in the face of evidence that what we say can <a href="http://www.tandfonline.com/doi/full/10.1080/13504630.2015.1128810">cause great harm</a>. </p>
<p>Twenty years after it was introduced, opponents of laws like 18C still want <a href="https://theconversation.com/section-18c-is-too-broad-and-too-vague-and-should-be-repealed-64482">to argue</a> that “free speech” suffers every day such provisions are allowed.</p>
<p>People are perfectly entitled to express their views about the merits of racial vilification laws. But in <a href="https://theconversation.com/explainer-what-is-section-18c-and-why-do-some-politicians-want-it-changed-64660">evaluating these claims</a> and calls for abolition or curtailment, two things should be kept in mind.</p>
<p>First, the evidence suggests most people don’t think they should be allowed to vilify others based on their race, ethnicity or national origin. 88% of the people who participated in a <a href="http://www.smh.com.au/federal-politics/political-news/race-hate-voters-tell-brandis-to-back-off-20140413-zqubv.html">Fairfax-Nielsen poll</a> in 2014 expressed the view that behaviour currently defined as unlawful under 18C should stay that way.</p>
<p>Second, it is often unclear what critics of 18C want to be able to say or do in public but claim they are “prevented” from saying or doing. Surely they don’t want to hurl ugly racial epithets whenever they feel like it? Or publicly express the view that people of a certain ethnic background are untrustworthy or otherwise inferior? </p>
<p>If these are the sorts of statements they are keeping bottled up inside, and if 18C is really the reason they are biting their tongues – an unlikely prospect – then federal parliament deserves a pat on the back for introducing it.</p>
<p>But perhaps with some exceptions, it seems unlikely that this is what most prominent anti-18C campaigners are asserting. It seems more probable that what they want to say things like:</p>
<ul>
<li><p>“Immigration policy should be managed so as to minimise the risk of terrorist attacks happening in Australia”; or</p></li>
<li><p>“As a [insert faith-based community of choice], my religious values and beliefs lead me to think that the secular institution of marriage should continue to be limited to opposite sex couples”; or</p></li>
<li><p>“With native title mostly sorted and governments working hard to ‘close the gap’ on Indigenous health, Aboriginal and Torres Strait Islander people do not also need to be recognised in the Australian Constitution”.</p></li>
</ul>
<p>Can anyone seriously suggest that 18C, or any other Australian law, somehow prevents such things from being said? </p>
<p>They are in fact said every day – sometimes calmly and politely, sometimes in intemperate language, and yes, sometimes in language that might fall within the parameters of 18C. </p>
<p>But as commentator Waleed Aly <a href="http://www.smh.com.au/comment/the-real-agenda-behind-amending-18c-sending-a-message-to-minorities-20160901-gr62nl.html">has said</a>, there is no point getting stuck into 18C as an assault on free speech without recognising how much room Section 18D allows. This is the frequently ignored part of the “twin set” that allows exceptions for contributions to debate on matter of public interest.</p>
<p>Political cartoonists have been <a href="https://www.humanrights.gov.au/human-rights-law-bulletin-volume-8#bropho">taking advantage of this flexibility</a> and <a href="https://newmatilda.com/2016/08/14/im-not-racist-but-an-open-letter-to-bill-leak-from-one-cartoonist-to-another/">pushing its limits</a> for years.</p>
<p>It is also worth emphasising that to defend 18C (or any law) is not to defend every instance in which it is found to have been breached, much less every allegation that it has been breached. A sample of one is a rarely a sound basis for major policy change and law reform, and that includes Australia’s <a href="https://itstopswithme.humanrights.gov.au">strong commitment to anti-racism</a>.</p>
<p>Finally, some people think that tolerance of incivility is a mark of democracy. Attorney-General George Brandis’ <a href="https://www.theguardian.com/world/2014/mar/24/george-brandis-people-have-the-right-to-be-bigots">infamous 2014 statement</a> that Australians “have the right to be bigots” was probably the high watermark of this sort of thinking in recent times. </p>
<p>But in fairness to Brandis, <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2004/39.html">some High Court judges</a>, without embracing the “B-word”, have <a href="http://www.austlii.edu.au/au/journals/UQLawJl/2011/6.pdf">endorsed the same line</a>.</p>
<p>However, as Kath Gelber <a href="https://theconversation.com/on-the-marriage-equality-plebiscite-lets-not-confuse-free-speech-with-a-free-for-all-64587">has argued</a>, a society can and should embrace the core values at the heart of the democratic ideal of free speech. This includes freedom of opinion and the opportunity to express that opinion without having to turn public debate into a free-for-all.</p><img src="https://counter.theconversation.com/content/64801/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luke McNamara received funding from the Australian Research Council to conduct research on which this article draws.</span></em></p>The ‘good old days’ when we could make racist comments without legal recourse were not that good at all – especially for those on the receiving end.Luke McNamara, Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/646602016-09-01T03:57:56Z2016-09-01T03:57:56ZExplainer: what is Section 18C and why do some politicians want it changed?<figure><img src="https://images.theconversation.com/files/136195/original/image-20160901-26179-t9lnlb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cory Bernardi is leading the push for changes to Section 18C.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>Politicians who regard <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C</a> of the Racial Discrimination Act as a serious threat to “free speech” are again pursuing a range of strategies to discredit and repeal or water-down Australia’s national racial vilification law. </p>
<p>Earlier this month, senator David Leyonhjelm <a href="https://theconversation.com/could-section-18c-protect-angry-white-males-like-david-leyonhjelm-63944">lodged a complaint</a> with the Australian Human Rights Commission, alleging he had been the target of conduct that breached 18C. And, just this week, Liberal senator Cory Bernardi <a href="http://www.abc.net.au/news/2016-08-30/cory-bernadi-leads-coalition-push-to-change-18c-race-hate-laws/7796356">has led a push</a> to introduce a private member’s bill that would curtail 18C.</p>
<p>So what is 18C? And why does it make people like Bernardi and Leyonhjelm so agitated?</p>
<h2>What is 18C and why do we have it?</h2>
<p>Section 18C was added to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/">Racial Discrimination Act</a> just over 20 years ago, with the passage of the Racial Hatred Act. Under Section 18C:</p>
<blockquote>
<p>(1) It is unlawful for a person to do an act, otherwise than in private, if:</p>
<p>(a) the act is reasonably likely, in all the circumstances, to offend, insult,
humiliate or intimidate another person or a group of people; and</p>
<p>(b) the act is done because of the race, colour or national or ethnic origin of
the other person or of some or all of the people in the group.</p>
</blockquote>
<p>It is important to note that under <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">Section 18D</a>, conduct that prima facie breaches 18C will not be unlawful if it is done “reasonably and in good faith” for artistic, academic, scientific or other public interest purposes (or in reporting on any such conduct).</p>
<p>The original Racial Discrimination Act was (and still is) primarily concerned with situations in which racism produces a material disadvantage for someone. That might be, for example, denial of a promotion in the workplace context, or rejection as a potential tenant of a residential property. </p>
<p>In 1995 federal parliament recognised racism can also manifest in other ways and cause other sorts of harms. These include the harms that can be done by what is often referred to colloquially as “racial vilification” or “hate speech”.</p>
<p>Thinkers, writers, politicians, journalists and others have been arguing for many years about whether words alone can harm – or harm to such an extent that the state should take an interest in discouraging such behaviour. Anyone who has really listened to people who are frequently vilified because of their (actual or perceived) identify knows that the harms are not trivial.</p>
<p>In my own research with <a href="https://theconversation.com/profiles/katharine-gelber-108702">Kath Gelber</a>, we heard numerous accounts of the damage that is done by racist comments, including feeling hurt and angry, fearful, intimidated and paranoid. It can crush people’s self-esteem, leave them feeling paralysed and silenced, and excluded from the wider community. </p>
<p>It may also cause people to modify their behaviour in undesirable ways, such as avoiding going out in public to avoid abuse, being unwilling to identify with one’s ethnicity in the workplace so as not to risk ridicule, or speaking only English in public.</p>
<h2>So who has a problem with it, and why?</h2>
<p>No-one pays much attention to the majority of cases in which Section 18C is invoked – to signal that the behaviours that cause such harms are unacceptable in a multicultural liberal democracy.</p>
<p>The heat is always at the margins – stoked by media interest because of the identity of an alleged perpetrator (the <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html">Andrew Bolt case</a> from 2011 being a prime example), or because the case is regarded as linking up a wider agenda around “political correctness”. </p>
<p>This appears to be, at least in part, why The Australian newspaper and Bernardi are so interested in <a href="http://www.theaustralian.com.au/higher-education/18c-case-student-cleared-by-queensland-university-of-technology/news-story/a86f5c3d65d1c1df5289bcd44bc354d2">a pending case</a> triggered by controversy over a computer lab provided to support Indigenous students at the Queensland University of Technology.</p>
<p>It is much harder to perpetuate the myth that 18C threatens the foundations of Australian democracy (and so must be repealed), if the more typical cases that <a href="http://www.unswlawjournal.unsw.edu.au/sites/default/files/392-2.pdf">we have discovered in our research</a> are considered. These included: </p>
<ul>
<li><p>cases involving holocaust denial and anti-Semitism; </p></li>
<li><p>a case in which Aboriginal youths killed in a car accident were described as “criminal trash” and “scum” that should be used as “land fill”; and</p></li>
<li><p>a case in which an Aboriginal women and her family were subjected to an torrent of abuse, including being called including “niggers”, “coons”, “black mole”, “black bastards” and “lying black mole cunt”.</p></li>
</ul>
<p>There was also a case in which a man who was simply doing his job as a security officer at a public building was called a “Singaporean prick”, and echoing the classic retort of xenophobic exclusion that has been slung at numerous immigrant communities: “go back to Singapore”.</p>
<h2>Why 18C should not be amended</h2>
<p>The wording of Section 18C, and the inclusion of exemptions in Section 18D, represent a genuine attempt to set some parameters for civil and respectful communication, and for making a declaration that, as a society, we recognise the human dignity of all, irrespective of colour, ethnicity or country of origin. </p>
<p>Bernardi and Leyonhjelm, and other campaigners for the rollback of 18C, tend to focus on the words “offend” and “insult” that form part of the key phrase in the legislation (“offend, insult, humiliate or intimidate”). However, this approach misunderstands the harm threshold in 18C. </p>
<p>The courts have consistently held that the bar is not a low one. To fall within 18C the <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2001/1007.html">speech must have</a>:</p>
<blockquote>
<p>… profound and serious effects, not to be likened to mere slights. </p>
</blockquote>
<p>In <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html">Eatock v Bolt</a> the Federal Court explained:</p>
<blockquote>
<p>The definitions of “insult” and “humiliate” are closely connected to a loss of or
lowering of dignity. The word “intimidate” is apt to describe the silencing
consequences of the dignity denying impact of racial prejudice as well as the use of threats of violence. The word “offend” is potentially wider, but given the
context, “offend” should be interpreted conformably with the words chosen as its partners.</p>
</blockquote>
<p>Finally, there is another point that often gets lost in the debate over 18C. As far as <a href="https://theconversation.com/explainer-how-do-australias-laws-on-hate-speech-work-in-practice-26105">legal regulation goes</a>, the regime contained in the Racial Discrimination Act is one of the more modest forms of state intervention. The Human Rights Commission is a neutral facilitator, not an enforcer. And, wherever possible, the aim is to resolve things via conciliation. </p>
<p>Only a very small number of cases ever make their way to the court system. Even where a complaint is upheld, the remedies are hardly draconian. Damages are rarely awarded (and if they are, the amount is modest), and no-one is convicted or goes to prison – because 18C does not create a criminal offence.</p>
<p>Section 18C alone can’t “fix” the problem of racism that continues to exist in Australia. It would be wrong to see it as a magical panacea. But it is equally wrong – and unsupported by the available evidence – to regard 18C as a threat to Australia’s liberal democracy.</p><img src="https://counter.theconversation.com/content/64660/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luke McNamara received funding from the Australian Research Council to conduct research on which this article draws.</span></em></p>The debate around amending Section 18C is a furphy: the law is there to guard against the most-damaging vilification, and very few cases end up in court.Luke McNamara, Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/644822016-08-31T00:17:47Z2016-08-31T00:17:47ZSection 18C is too broad and too vague, and should be repealed<figure><img src="https://images.theconversation.com/files/136007/original/image-20160830-28253-s4b95j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cory Bernardi is set to introduce a private member's bill to reform Section 18C of the Racial Discrimination Act.</span> <span class="attribution"><span class="source">AAP/Paul Miller</span></span></figcaption></figure><p>Section 18C of the Racial Discrimination Act continues to <a href="https://www.theguardian.com/australia-news/2016/aug/29/conservatives-flex-muscle-over-marriage-equality-and-18c">create controversy</a>. The <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">section</a> makes unlawful any act reasonably likely to offend, insult, humiliate or intimidate another person or group of people because of their race, colour, ethnicity or nationality.</p>
<p>Students and staff from the Queensland University of Technology <a href="https://au.news.yahoo.com/thewest/a/30740303/qut-ex-employee-launches-250-000-racism-claim-against-students-staff/#page1">are being sued</a> for breaching 18C. Race Discrimination Commissioner Tim Soutphommasane, meanwhile, <a href="http://www.smh.com.au/national/is-this-bill-leak-cartoon-in-the-australian-racist-20160804-gqkub9.html">recently urged people to file complaints</a> against The Australian’s cartoonist Bill Leak for breaching 18C. And certain members of the new parliament <a href="https://www.theguardian.com/world/2016/aug/19/labor-accuses-coalition-of-changing-stance-on-racial-discrimination-law">are attempting to reform the section</a> by removing the words “offend” and “insult”.</p>
<p>One matter often overlooked in these controversies is whether 18C is in fact constitutional. In our book <a href="http://www.connorcourt.com/catalog1/index.php?main_page=product_info&cPath=7&products_id=371#.V8O5HPl96Ul">No Offence Intended: Why 18C Is Wrong</a>, we argue the Constitution’s <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html">external affairs power</a> does not support 18C. Further, the section also impermissibly infringes the implied freedom of political communication. </p>
<h2>Non-conformity with international treaties</h2>
<p>One of the requirements to validly translate an international treaty into domestic law under the external affairs power is the “conformity requirement”. The law must be <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1996/56.html">reasonably capable of being considered appropriate and adapted</a> to implementing the treaty.</p>
<p>The international treaty most directly supporting Section 18C is the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/sch1.html">Convention on the Elimination of All Forms of Racial Discrimination</a>, and Article 4 in particular. This is directed against, among other things, the dissemination of all ideas based on racial hatred.</p>
<p>A strong word is used here: hatred. Not dislike. Not disdain. Hatred. </p>
<p>Hate itself is a <a href="http://www.visio-moralis.co.uk/mind_and_brain/publications/pdf_files/NJPemotionsPaper.pdf">strong and distinct emotion</a>. Article 4 is therefore directed at a narrow range of expression: that is, expression motivated by, manifesting, or creating hatred. </p>
<p>However, Section 18C is directed against, among other things, expression that offends, insults or humiliates. The range of language that may offend, insult or even humiliate is far larger than language that is hateful. The assertion that some offensive or insulting expression leads to hate overlooks the many instances where such expression <em>doesn’t</em> lead to hatred.</p>
<p>Further, the emotions 18C targets – offence, insult and humiliation – in many cases have little if anything to do with the emotion of hatred. </p>
<p>Consequently, 18C targets language and emotions far beyond what the convention allows. It cannot therefore be reasonably considered to be appropriate and adapted to the convention, and hence is not supported by the external affairs power.</p>
<h2>Infringing the implied freedom of political communication</h2>
<p>The <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1997/25.html">implied freedom of political communication</a> prohibits laws impermissibly infringing the freedom of Australians to <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2015/34.html">discuss government and political matters</a>. Section 18C’s burden on such discussion is substantial.</p>
<p>Many government and political matters involve controversial issues concerning race, colour, ethnicity or nationality. For example, border protection and immigration raise contentious issues about the level and composition of the refugee and migrant intake. Australia’s involvement in wars raises controversial issues about the war’s causes and the enemy’s motivations. </p>
<p>Feelings will run high about these issues. Offence and insult over these matters will inevitably be given or taken.</p>
<p>Further, the Constitution provides that <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2013/58.html">the people are sovereign</a>. This means Australians elect representatives to parliament, and it is to Australians that these representatives are accountable. Australians must therefore be able to fully, frankly and robustly discuss any matter that may be the subject of laws their representatives make, or executive actions their representatives authorise. </p>
<p>Finally, Australian state and federal parliaments have plenary powers to make laws. This power has <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1988/55.html">extremely wide scope</a>. Given this, the scope of Australians to speak about present or proposed laws must be wider still. </p>
<p>If anything, in a democracy like Australia’s, a sovereign people must be free to speak even the unspeakable. However, 18C purports to make unlawful even statements “reasonably likely” to offend.</p>
<p>Yes, there are limits to freedom of expression, but these limits are themselves strictly limited. 18C goes far beyond these strict limits.</p>
<p>It is no answer to say <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">section 18D</a> provides exemptions to 18C. 18C already creates uncertainties about how vague terms like offend, insult and humiliate will be applied in any given situation. Section 18D compounds these uncertainties. </p>
<p>For example, all exemptions in 18D must be done <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">“reasonably and in good faith”</a>. This has been held to impose a <a href="http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/16.html">“harm-minimisation requirement”</a>. But what does this mean? Reasonable minds may differ whether a statement was a heartfelt opinion or an insult that could have been expressed more sensitively.</p>
<p>An essential requirement of the rule of law is certainty. People must know where a legal line is drawn so they can avoid going over it. The uncertainties of 18C and 18D add to the already heavy burden that 18C places on the implied freedom of political communication.</p>
<p>Reducing racial hatred is a laudable aim. However, 18C pursues it in an unconstitutional manner by being too broad and too vague. It should be repealed and a more tightly drafted provision put in its place. Until then, it is vulnerable to constitutional challenge.</p><img src="https://counter.theconversation.com/content/64482/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lorraine Finlay is affiliated with the Liberal Party of Australia, being a member of the WA Division.</span></em></p><p class="fine-print"><em><span>Augusto Zimmermann is Senior Vice President of the Liberal Party's Fremantle Division, Adjunct Professor of Law, University of Notre Dame Australia, Sydney, and a member of the Law Reform Commission of Western Australia.</span></em></p><p class="fine-print"><em><span>Joshua Forrester receives an Australian Postgraduate Award.
</span></em></p>The Constitution’s external affairs power does not support Section 18C. And the section also impermissibly infringes the implied freedom of political communication.Lorraine Finlay, Lecturer in Law, Murdoch UniversityAugusto Zimmermann, Director of Postgraduate Research and Senior Lecturer in Law, Murdoch UniversityJoshua Forrester, PhD Candidate in Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/622832016-07-18T20:06:16Z2016-07-18T20:06:16ZCan religious vilification laws protect religious freedoms?<figure><img src="https://images.theconversation.com/files/130671/original/image-20160715-2110-sdun2h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The car that was set ablaze outside Perth's Thornlie Mosque. Offensive graffiti was also scrawled on a wall nearby.</span> <span class="attribution"><span class="source">AAP</span></span></figcaption></figure><p>On June 28, the Thornlie Mosque and Australian Islamic College in Perth was <a href="http://www.abc.net.au/news/2016-06-29/ethnic-communities-council-warns-of-escalation-violence/7555034">targeted by vandals</a>. A vehicle was destroyed by fire, and offensive graffiti was sprayed on a nearby wall.</p>
<p>True, the law courts can respond accordingly if the offenders are caught, given this attack involved criminal offences. But is there not also a role for anti-vilification legislation to bolster society’s defences against the more overt and worrisome displays of religious bigotry?</p>
<h2>What the law says now</h2>
<p>As a signatory to the <a href="https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf">International Covenant on Civil and Political Rights</a>, Australia is obliged to enact laws prohibiting:</p>
<blockquote>
<p>… any advocacy or national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.</p>
</blockquote>
<p>To that end, there is a great deal of state and federal legislation now in place that grants civil remedies in the event of <a href="http://trove.nla.gov.au/work/198360150?selectedversion=NBD55509922">racial and religious discrimination</a>. Notable is the federal Racial Discrimination Act, enacted in 1975 and amended in 1995 to add the <a href="https://www.humanrights.gov.au/our-work/race-discrimination/projects/glance-racial-vilification-under-sections-18c-and-18d-racial">controversial Section 18C</a> (the “racial hatred” amendment). </p>
<p>The Coalition promised, during the 2013 election campaign, to rescind Section 18C. This promise was later abandoned by the Abbott government.</p>
<p>There is other legislation, too, that specifically criminalises acts of racial hatred, such as South Australia’s <a href="https://www.legislation.sa.gov.au/LZ/C/A/RACIAL%20VILIFICATION%20ACT%201996.aspx">Racial Vilification Act</a>.</p>
<p>This legislation, however, does not protect those who have been vilified because of their religious beliefs. An observer might think that being a Jew, Muslim, Sikh, or Buddhist is as much an issue of religion as it is a matter of race or ethnicity, so it doesn’t really matter. </p>
<p>But that is not necessarily the case. In law, “race” is determined on the basis of a combination of genetics, shared history, and cultural traditions. This need not include religious observance.</p>
<p>This issue arose, somewhat obliquely, in the 2003 Jones v Toben case. Jeremy Jones, then-director of the Executive Council of Australian Jewry, claimed that Fredrick Toben’s Holocaust denial website was in breach of Section 18C. The Federal Court agreed, finding that some particularly egregious assertions on the website <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2003/137.html?stem=0&synonyms=0&query=title(Toben%20and%20Jones%20)">did breach the act</a>. </p>
<p>In an interesting twist, Toben had claimed that Judaism was a religion, thus the act didn’t apply. The court disagreed, finding that Judaism was sufficiently “racial” to be covered by the act. The court did not say, and it cannot follow in any event, that being Jewish means that one affirms the Judaic faith.</p>
<p>To further complicate matters, in some legislation, such as New South Wales’ <a href="http://www.legislation.nsw.gov.au/#/view/act/1977/48">Anti-Discrimination Act</a>, the definition of “race” includes “ethno-religious” origin. But the NSW Administrative Decisions Tribunal Appeal Panel has ruled that determining whether there has been discrimination on the basis of race cannot be done by referring to an aggrieved person’s religion.</p>
<p>So what does all this mean? It means, simply, that one cannot rely upon the laws that proscribe racial and religious discrimination to be protected from religious vilification.</p>
<h2>Should there be specific legislation?</h2>
<p>Yes and no. </p>
<p>Yes, all people have the right to be protected from religious vilification, especially in this post-election era. On July 2, a not-insignificant proportion of Australians indicated their strong preference for candidates advocating a ban on burqas, an end to the building of mosques, and the scrapping of halal certification.</p>
<p>On the other hand there should be no such legislation because we cherish our freedom of speech. Vilification laws are a serious limitation on that freedom.</p>
<p>Let’s look at the current state of the law. There are three pieces of legislation in Australia that address religious vilification. In Victoria, a person convicted of “<a href="http://www.austlii.edu.au/au/legis/vic/consol_act/rarta2001265/s25.html">serious religious vilification</a>” faces a fine or six months’ imprisonment. There is a similar penalty for a conviction under <a href="https://www.legislation.qld.gov.au/legisltn/current/a/antidiscrima91.pdf">the law in Queensland</a>. A person convicted in Tasmania faces <a href="http://www.austlii.edu.au/au/legis/tas/consol_act/aa1998204/s19.html">fines and orders for compensation</a>, but not imprisonment.</p>
<p>Other legislatures have been decidedly timid, and so, it seems, have the courts. Of the few complaints that have been taken up by prosecutors, the most highly publicised was the <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2004/2510.html?stem=0&synonyms=0&query=title(%222004%20VCAT%202510%22)">trial of Catch the Fire Ministries</a>. Outspoken Christian fundamentalist pastors <a href="http://riseupaustraliaparty.com/">Danny Nalliah</a> and Daniel Scot were found by the Victorian Civil and Administrative Tribunal to have vilified the Muslim community during an anti-Islam seminar and in their writings. </p>
<p><a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2006/284.html">On appeal</a>, they succeeded in having the matter referred back to the tribunal, but it was settled by mediation en route.</p>
<p>Where should we go from here? I am of the view that we should be wary of legislative intervention. I agree with a number of academics, such as <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2790663">Fran Barber</a>, that passing such laws can create more problems than it solves. There are non-legal mechanisms – education, community programs, conciliation – that can better foster religious tolerance than the use of the adversarial legal system.</p>
<p>In the end, it’s a moot point. Given the muscles that the One Nation senators can now flex in Canberra, and given the campaign being waged by the <a href="http://ipa.org.au/publications/2319/charlie-hebdo-shows-why-section-18c-must-go">Institute of Public Affairs</a>, not to mention the simmering antipathy towards Section 18C of both <a href="http://www.abc.net.au/news/2014-03-24/brandis-defends-right-to-be-a-bigot/5341552">Attorney-General George Brandis</a> and <a href="http://www.theaustralian.com.au/business/media/andrew-bolt-x-racial-vilification-court-case/story-e6frg996-1226148919092">conservative columnist Andrew Bolt</a>, one can safely assume that the section will not be widened in the foreseeable future by any new “religious vilification” amendment. </p>
<p>That would simply be pouring petrol on the fire that Pauline Hanson is likely to start lighting under the Racial Discrimination Act very soon.</p><img src="https://counter.theconversation.com/content/62283/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre receives funding from the Australian Research Council. He is a member of the Labor Party and stood for a federal seat for Labor in the 2010 and 2013 elections.</span></em></p>Legislating against racial and religious vilification is highly fraught, as the ongoing debate around Section 18C has demonstrated, and unlikely to become less so any time soon.Rick Sarre, Professor of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/418162015-05-18T02:12:21Z2015-05-18T02:12:21ZA $147m budget saving missed: income management has failed<p>The expensive and extensive government-funded evaluation of income management in the Northern Territory clearly failed to find it worth ongoing funding. Note the following significant findings in the <a href="http://caepr.anu.edu.au/sites/default/files/cck_misc_documents/2014/12/Evaluation%20of%20New%20Income%20Management%20in%20the%20Northern%20Territory_summary%20report.pdf">summary report</a> of <a href="http://caepr.anu.edu.au/others/Report-1418859519.php">the final evaluation report</a> on NT income management programs: </p>
<blockquote>
<p>The evaluation could not find any substantive evidence of the program having significant changes relative to its key policy objectives, including changing people’s behaviours.</p>
<p>More general measures of wellbeing at the community level show no evidence of improvement, including for children.</p>
<p>The evaluation found that, rather than building capacity and independence, for many the program has acted to make people more dependent on welfare.</p>
</blockquote>
<p>Yet the 2015-16 budget has not only included a two-year extension of the services to 25,000 recipients, but <a href="https://www.dss.gov.au/sites/default/files/documents/05_2015/2015_budget_fact_sheet_-_income_management_-_final_0_0.pdf">signals more expansion</a> of the basic concept. This makes no sense as most forms of income management fail to show positive outcomes, despite some individuals, mainly voluntary participants, claiming income management has benefited them.</p>
<p>The included funding is for new technology and commercial involvement in the future program, which suggests the Andrew “Twiggy” Forrest version of a cashless <a href="http://indigenousjobsandtrainingreview.dpmc.gov.au/chapter-2-healthy-welfare-card">welfare card</a> is the next step. Why would the Forrest version offer better outcomes, apart from cutting administration costs by removing Centrelink? </p>
<p>The announcement below fails to acknowledge there are any questions about benefits of the program. The budget statement <a href="https://www.dss.gov.au/sites/default/files/documents/05_2015/2015_budget_fact_sheet_-_income_management_-_final_0_0.pdf">claims</a>:</p>
<blockquote>
<p><strong>Income Management 2015 Budget</strong></p>
<p>Income management is a tool that helps people better budget their welfare payments and ensures they are getting the basic essentials of life such as food, housing, electricity and education.</p>
<p><strong>What was announced in the 2015 budget?</strong></p>
<p>Income management will continue for another two years in all locations where it currently operates, with possible expansion to four new communities. This $144.6 million investment will build on the positive impacts of income management; giving participants more control of their welfare money, improving family stability, reducing stress and financial hardship. It will also give Government time to fully test alternative approaches to welfare payments quarantining.</p>
</blockquote>
<p>Returning to the evaluation report, there are further clear statements, backed by data in the <a href="http://caepr.anu.edu.au/others/Report-1418859519.php">body of the report</a> by the Social Policy Research Centre at UNSW, that do not recommend continuing the program in any of its current forms:</p>
<blockquote>
<p><strong>Summarising the impact</strong></p>
<p>Taking the results as a whole, the conclusion is that there is no evidence of any consistent positive impacts on problematic behaviours related to alcohol, drugs, gambling, and financial harassment, in the extent to which financial hardships and stresses are experienced – for example, running out of food, not being able to pay bills, or on community level outcomes such as children not being looked after properly, school attendance, drinking, and financial harassment. (p.307)</p>
<p>Despite the magnitude of the program the evaluation does not find any consistent evidence of income management having a significant systematic positive impact. (p.317)</p>
<p>Data on spending point to continued major problems of diet and poor levels of fruit and vegetable consumption, in particular for Indigenous people living in remote communities. There is no evidence of income management having resulted in changes in spending or consumption, including on alcohol, tobacco, fresh fruit and vegetables. (p.317)</p>
</blockquote>
<p>Given the report was delivered to the government last September and released publicly in December, it is puzzling that there has been no acknowledgement of the flaws. In late March, the <a href="http://www.smh.com.au/federal-politics/political-news/healthy-welfare-card-trials-to-tackle-violence-and-alcohol-abuse-20150322-1m4uk2.html">government announced</a> that welfare recipients would be given cashless cards to stop them spending money on alcohol and drugs in a bid to combat violence against women and children. Parliamentary Secretary to the Prime Minister Alan Tudge said the government was planning trials of the cards “in a small number” of places, which were yet to be decided, later this year. </p>
<p>And now it is in the budget. This decision clearly ignores the findings of the evaluation report, which seriously undermine any government claims that quarantining incomes is effective in changing behaviour or that its new card will affect spending positively and reduce drinking. The report does not recommend continuing the program in any of its current forms.</p>
<h2>Prejudice makes it easier to ignore evidence</h2>
<p>The question arises: why does this particular policy change receive so little attention or objections? Despite the threat that controlling income may well alter the basis for general income support, the possibilities stay beneath the public debate radar. Few in the welfare sector have raised objections or questions.</p>
<p>One can only assume an element of racial and wider prejudice is operating, as the original and many ongoing recipients have been Indigenous. Income management started as part of the Howard government’s NT Emergency Response to a child sexual abuse report. </p>
<p>Originally, the income management program was targeted at all Commonwealth payment recipients in 72 Indigenous communities, controlling 50% of their spending. It required suspending the Racial Discrimination Act. There was no explanation as to how financial controls would fix child abuse.</p>
<p>When the ALP took office some months later, it expanded the numbers and set up a review. Despite the <a href="http://www.abc.net.au/stateline/nt/content/2006/s2400936.htm">Yu report</a> raising some questions and doubts, the new government extended the scheme to the rest of the NT. It was de-racialised but still covers mostly Indigenous recipients in the NT, with smaller mainly non-Indigenous and Indigenous pilots elsewhere.</p>
<p>Now, eight years on and despite all the evidence to the contrary, the budget papers state clearly:</p>
<blockquote>
<p>The Government is investing $147 million to deliver more streamlined and cost-effective income management. Around 25,000 people will continue to benefit from this programme designed to support vulnerable Australians.</p>
</blockquote>
<p>Why? How about some serious economic rationality, both to save taxpayers’ money and improve social well-being?</p><img src="https://counter.theconversation.com/content/41816/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eva Cox does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Various studies, culminating in the final evaluation report of income management in the Northern Territory, have found such programs don’t achieve the claimed benefits. Why did the budget extend them?Eva Cox, Professorial Fellow Jumbunna IHL, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/362442015-01-15T01:02:18Z2015-01-15T01:02:18ZSpeech in France is not so free as Section 18C critics would have it<p>Recent commentary about the so-called “French” idea of free speech is fuelling confusion and misinformation in the debate about <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/consol_act/rda1975202/s18c.html?">Section 18C</a> of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/">Racial Discrimination Act 1975</a> in Australia. </p>
<p>Human Rights Commissioner Tim Wilson <a href="http://www.theaustralian.com.au/in-depth/terror/being-charlie-with-18c-in-place-australia-says-non/story-fnpdbcmu-1227182736935">has said</a> that a publication like French satirical weekly Charlie Hebdo, target of <a href="https://theconversation.com/au/topics/charlie-hebdo-attack">last week’s terrorist attack</a>, would be “shut down” in Australia under Section 18C. New South Wales Solicitor-General Michael Sexton <a href="http://www.theaustralian.com.au/opinion/those-who-say-they-are-charlie-should-support-changes-to-18c/story-e6frg6zo-1227181491474">has written</a> that:</p>
<blockquote>
<p>… those who say they are Charlie should support changes to 18C. </p>
</blockquote>
<p>Wilson and Sexton join the likes of News Corp columnist <a href="http://www.news.com.au/national/are-we-really-all-charlie-no-no-and-shamefully-no/story-e6frfkp9-1227180871950">Andrew Bolt</a> and Liberal senator <a href="http://www.theguardian.com/australia-news/2015/jan/11/cory-bernardi-says-18c-changes-should-be-revisited-following-attacks-in-france">Cory Bernardi</a>, who have similarly argued that publications such as Hebdo wouldn’t be permitted because of Section 18C. </p>
<p>There is at least some truth to these claims. A publication like Charlie Hebdo wouldn’t survive in Australia – not because of 18C – but because two major corporations dominate our mainstream media. We simply don’t have the same plurality of the press as they do in France. Anyone who has travelled in France would know of the diversity of French print media – with an impressive total of some 15,000 titles – which operates largely thanks to <a href="http://www.editorsweblog.org/2009/11/16/subsidising-the-french-press-is-it-working">generous government subsidies</a>. </p>
<h2>France is tougher on hate speech</h2>
<p>As for Section 18C, hate speech is subject to much stricter regulations in France (under both civil and criminal law) than in Australia. </p>
<p>In July last year, for example, Front National politician Anne-Sophie Leclère <a href="http://www.lemonde.fr/societe/article/2014/07/15/taubira-comparee-a-un-singe-9-mois-de-prison-ferme-pour-l-ex-candidate-fn_4457839_3224.html">was sentenced</a> to nine months’ imprisonment and fined 50,000 euros for comparing Attorney-General Christiane Taubira (who is black) to a monkey on her Facebook page. The criminal penalties imposed on Leclère seemed to pass without uproar or outrage. What did arouse public debate for going “too far” was the court’s decision to impose an additional fine of 30,000 euros on Front National. </p>
<p>Recall also French comedian Dieudonné, whose shows were banned last year because of his controversial quenelle gesture (an upside-down Nazi salute). His <a href="https://firstlook.org/theintercept/2015/01/14/days-hosting-massive-free-speech-march-france-arrests-comedian-facebook-comments/">latest arrest</a> came just 48 hours after the <a href="https://theconversation.com/a-million-march-in-paris-with-not-a-dog-whistle-between-them-36207">massive march</a> in Paris in support of freedom of expression. His Facebook post, “Tonight, as far as I’m concerned, I feel like Charlie Coulibaly” – linking one of the Charlie Hebdo killers to the tribute “Je suis Charlie” – reportedly prompted the charge of being an <a href="http://www.theguardian.com/world/2015/jan/14/dieudonne-arrest-facebook-post-charlie-coulibaly-paris-gunman">“apologist for terrorism”</a>. </p>
<p>Dieudonné has been the subject of <a href="http://en.wikipedia.org/wiki/Dieudonn%C3%A9_M%27bala_M%27bala#Court_actions">numerous court proceedings</a>. In February 2014, a French judge <a href="http://www.lexpress.fr/actualite/societe/la-justice-ordonne-a-dieudonne-de-retirer-deux-passages-d-une-video-sur-internet_1323138.html">found him guilty</a> of incitement of ethnic or racial hatred and denial of crimes against humanity over videos on his YouTube account. In October 2009, Dieudonné was fined 10,000 euros for “public insult of people of Jewish faith or origin”. The following year he was again forced to pay 10,000 euros, after the International League against Racism and Anti-Semitism brought <a href="http://www.bbc.com/news/world-europe-26159048">defamation proceedings</a>. In February 2007, a French court found his remarks in an interview printed in Lyon Capitale to be offensive and hence a necessary restriction on the freedom of speech.</p>
<p>It is worth noting that these were criminal penalties, not civil as with Section 18C. The point is that the portrayal of the French legal system put forward by some conservative commentators is simplistic and misleading. So too is the portrayal of Section 18C as draconian. </p>
<h2>Australian lacks strong right to free speech</h2>
<p>In France, freedom of expression has been protected since the <a href="http://en.wikipedia.org/wiki/Declaration_of_the_Rights_of_Man_and_of_the_Citizen">Declaration of the Rights of Man and Citzen</a> of 1789. Also, as in other liberal democracies, the right to free speech is not absolute, but must be balanced against other competing rights with reference to the circumstances of each case. Hence the <a href="http://en.wikipedia.org/wiki/Law_on_the_Freedom_of_the_Press_of_29_July_1881">Law on the Freedom of the Press of 29 July 1881</a>, which offers protections from racist and defamatory declarations, anti-terrorism legislation, Holocaust denial and insult and incitement to discrimination, hate or violence against individuals. </p>
<p>Charlie Hebdo itself has a chequered history of legal proceedings. French <a href="http://mobile.lemonde.fr/societe/article/2015/01/08/charlie-hebdo-22-ans-de-proces-en-tous-genres_4551824_3224.html">media report</a> nearly 50 court cases, or one every six months. These include criminal proceedings brought in 2007 against then editor Philippe Val by the Grand Mosque of Paris. Val was acquitted. As in this 2007 court case, Charlie Hebdo won the majority of these decisions not due to freedom of speech tout court, but thanks to the protections on caricature, droit a la caricature.</p>
<p>It is also worth recalling that the case that fuelled opposition to Section 18C, <a href="http://www.austlii.edu.au/au/journals/IndigLawB/2011/52.pdf">Eatock v. Bolt</a>, concerned printed articles – not cartoons or caricature. <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">Section 18D</a> of the Racial Discrimination Act includes various exceptions, including for fair comment, artistic work and performance. In the Bolt case, the judge found against fair comment in the public interest because the articles contained significant factual errors.</p>
<p>Australia, unlike France and other democracies, has only an implied right to freedom of speech on political affairs in the constitution. Those with genuine concerns about <a href="https://theconversation.com/section-18c-and-unravelling-the-governments-freedom-agenda-25021">lack of free speech protections</a> in Australia would do better to campaign for a bill of rights rather than pursue misdirected battles against Section 18C.</p>
<p>When the anti-18C campaign does not extend to other legislated restrictions – for example, <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s578c.html">section 578C</a> of the Crimes Act, which includes publication of offensive or indecent articles, or <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/asioa1979472/s35p.html">section 35P</a> of the ASIO Act – there is good reason to be cynical. When couched in terms of one’s <a href="https://theconversation.com/race-act-changes-are-what-you-get-when-you-champion-bigotry-24782">“right to be a bigot”</a>, even more so.</p>
<h2>Context and facts are missing from debate</h2>
<p>What conservative commentators don’t seem to understand is that they are not Charlie Hebdo; such a comparison is laughable. It is a satirical left-wing magazine that makes fun of all religions, political parties and themselves.</p>
<p>More importantly, Charlie Hebdo is part of France’s rich comic culture. Accordingly, its articles and cartoons must be understood in terms of parody, satire and, above all, with <a href="https://theconversation.com/we-are-all-charlie-hebdo-or-are-we-36044">reference to political and cultural context</a>. </p>
<p>This last point seems to have been missed entirely in the debate on Charlie Hebdo in Australia. Other things that are missing include reference to actual legislation and court proceedings. </p>
<p>A debate on reforming Section 18C should be informed by research and reason, not ideological cheap shots.</p><img src="https://counter.theconversation.com/content/36244/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amanda Porter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Recent commentary about the so-called “French” idea of free speech is fuelling confusion and misinformation in the debate about Section 18C of the Racial Discrimination Act 1975 in Australia. Human Rights…Amanda Porter, Researcher, Jumbunna Indigenous House of Learning, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.