When considering contemporary human rights issues in Australia – our denial of refugee rights, the disproportionate number of Indigenous children in juvenile detention and racial vilification on public transport and at football matches – we might be wise to think about the importance of simple civility and respect for each person.
Civility is both a complex and simple idea. Most of us were brought up to respect others so, on that level, it is relatively straightforward.
Yet our society is replete with examples of behaviour that lacks basic civility, especially the racism and xenophobia that currently infuses the refugee debate. In a diverse society such as Australia, it is deeply worrying that we continue to mistreat people because of where they come from, their skin colour, gender, age, sexual preference or because they live with a disability.
We can’t hope to ensure basic human rights until we learn to respect our differences and welcome diversity in society. It is far easier to solve problems when parties mutually respect each other, because respect allows us to discuss differences fruitfully.
Freedom of expression
As a society, we won’t always agree on how to tackle human rights issues. But civility isn’t about agreeing, it’s quite the opposite: civility is about how to behave when we disagree.
One aspect of civility that has attracted public debate over the last few months has been the rising level of racial vilification. The Australian Human Rights Commission has seen a 59% increase in complaints about racial hatred over the last year, many alleging breaches of the Racial Discrimination Act. Section 18 prohibits acts in public that “offend, insult, humiliate or intimidate” another person on the grounds of race, colour or national or ethnic origin.
Central to the debate is whether such prohibited acts unduly restrict the right to freedom of expression. Judges of the High Court have taken differing approaches to this issue. Some have argued that civilised political discourse serves to protect the quality of public discussion, to encourage political participation and to achieve an informed and balanced debate.
Others stress that robust, even aggressive, political debate leading to hurt feelings or offence, are costs to be borne, but not avoided, in the interests of a healthy democracy.
Testing the balance
The Australian High Court recently tested the balance between the right to freedom of speech and the need to prohibit racial and religious abuse in an extreme case of incivility – though no clear outcome was achieved.
In the case Monis v The Queen, two people were prosecuted for using the postal service to send letters to the families of men killed while on military service in Afghanistan. The letters were described by the High Court as “denigrating and derogatory” in their effect on the families.
The legal questions were, first, whether the letters are protected by the implied constitutional right of political communication and, secondly whether the letters were reasonably appropriate to “serve a legitimate end”; the “end” in this case being the author’s political objective in ending the war in Afghanistan.
The High Court was split three to three on the question, the Chief justice considering the terms of the legislation to be too wide. By contrast, three judges - all the women members of the court - found the law was an acceptable limit on the right to political communication.
The practical result is that the convictions remained in place. More broadly, acceptable limits to incivility remain to be clarified.
A new, courteous debate
Over the past decade, there has been a trend in political debate towards derisive rhetoric and personal attack. This has been coupled with a significant increase in racial abuse and cyber bullying through social media and the internet, prompting a 21st century challenge to reintroduce civil discourse.
One possible solution is to develop protocols to encourage courteous exchanges that respect differing views. In the meantime, we can change the destructive tenor of current human rights policy and value civility as one of our principle tenets.