It was an election “promise”. Most turned a blind eye, or maybe people just didn’t care. The coalition were elected and people warned that it would happen. Everyone was told to calm their respective farms because it hadn’t actually happened yet. Now it has. Amongst the many social issues that the Abbott government have labelled as not being a “priority” in their first term of government, they have made repealing section 18C of the Racial Discrimination Act (1975) of primary importance.
Why all the fuss? In 2009, Andrew Bolt wrote an article titled “It’s so hip to be black” that suggested that Indigenous Australians’ utilise their race in order to be more “fashionable” in the arts and political arena. Not only did the article spark outrage from the Aboriginal community, but it resulted in a controversial court case still debated today.
Essentially, the court case held that Bolt’s article was in breach of s18C of the Racial Discrimination Act (1975) which deems a person’s actions unlawful where they are reasonably likely to “humiliate”, “offend”, “discriminate” or “insult” someone based upon their culture, race or religion. Note that this piece of legislation does not limit individuals expressing their opinion “in private”. It is primarily aimed at those expressing offensive opinions in public. This ruling sparked widespread discourse within the executive and judicial arm of government.
The debate came to a blazing head following Bolt’s trial in 2011. The Liberal party stated that the basis of democracy is founded upon the principle that society (including business owners) have the right to discriminate upon someone based on their race. The freedom from someone offending your culture, religion race and identity is a right recondary to the freedom of speech
Australia’s Attorney-General, George Brandis is the man behind these proposed changes, insisting that ”it [s18C] enables the censorship of free speech”. In defence of these changes, Tony Abbott has declared that the right to the freedom of speech supersedes the right to be free from oppression, hatred, vilification and discrimination because the Australian people are entitled to be “passionate”. He argues, “It’s the freedom to write badly and rudely. It’s the freedom to be obnoxious and objectionable. Free speech is not bland speech. Often, it’s pretty rough speech because people are entitled to be passionate when they are arguing for what they believe to be important and necessary. Speech that has to be inoffensive would be unerringly politically correct but it would not be free.”
The Race Discrimination Commissioner, Helen Szoke has hit back at these proposed changes, asserting that in a nation as multi-cultural as Australia, the need to provide legal protection for those who suffer at the hands of racial discrimination is necessary. Former Attorney-General, Mark Dreyfus wrote an open letter to the coalition’s promise prior to the election, indicating that it contravenes Australia’s international obligation to the London Declaration on Combatting Anti-Semitism (which Tony Abbott signed himself). In fact, it also technically contravenes Australia’s signatory to the International Covenant on Civil and Political Rights (ICCPR) and to the International Covenant on Economic, Social and Cultural Rights (ICESCR).
It goes without saying that this is an extremely contentious area of the law, just as all human rights focused debates are. Is it possible to argue that one human right is more important than another? Is it possible to have one law without violating the other, or is that what currently existed before the proposed changes?
Possibly the most uncomfortable part about this proposal is that the Australian population are now faced with a government deciding what human rights are more important to us.
Article by Cyndall Mcinerney, a Law and Advertising student who aspires to one day live in a world where racial, sexual, cultural and gender-based discrimination are not areas of debate, but fundamentally recognised freedoms. Failing that, she will move to Antarctica to live with the penguins.