Australia marked this March 21, Harmony Day; which is otherwise known as the International Day For The Elimination of Racism¹, with the announcement that the Cabinet has officially taken the position that it wants to replace the words "insult, humiliate or offend" in Section 18 C of the Racial Discrimination Act 1975 with the single vague and mostly unenforceable word "harass".
Can I just say here and now that I am deeply ashamed of the Federal Government because in doing this on this day, it exactly sends out the message to the world that despite 117 years of nationhood, we have progressed nowhere in terms of race relations. This is the same nation who took 91 years to recognise native title; this is the same nation which in the history of the world is the only nation to have enacted exact and complete genocide of a race, with Truganini being the last Tasmanian Aboriginal and dying in 1877 after government policy to exterminate all of them; this is the nation that actively sends refugees and asylum seekers to Pacific island nations because we want to be seen as tough in defending our borders.
Yesterday the Cabinet may as well have announced that as a nation, we are a bunch of cruel cruel knaves, who value the right to "insult, humiliate and offend" people more than we value whatever inherent dignity they might possess. We also saw how weak willed the Liberal Party is because they've just rolled over and had their policy dictated by News Corp and the IPA. Unless of course this does in fact accurately reflect the will of the people; in which case Australia truly is an awful country.
Australia had its founding as a nation with a vote and not a war; as such we are possibly one of only two countries to have arrived at their current form of government before the country came into existence. Admittedly we inherited the Westminster System of government and so that form was already established but the one thing that we didn't inherit but had to argue out was the constitution. One of the features of the Constitution Act 1900 that is remarkable is that it doesn't contain a bill of rights and the reason why it does not is because it was decided that such a thing would blinker the people against the rights not specifically enumerated within the act. As a result, rights in the legal framework of Australia are assumed to exist and are hedged in by law.
On that point, I personally think that this is brilliant. Rights should always be assumed to exist but be bounded by relevant laws. I also happen to believe that rights should in almost every case be hedged in by law because human nature is such that absolute rights invariably lead to bad outcomes.
The right to privacy should be tempered by the need to investigate crime. The right to bear arms should be tempered by the public's right to go about their business safely. The right to free speech should be tempered by the right of other people's rights to dignity and decency. Those words "offend, insult, humiliate or intimidate" draw the line at a point where someone's dignity and decency has been violated. I don't think that that's unreasonable and those who wish to remove this restraint in my opinion, only wish to do so because they wish to be free from the results of their actions.
Essentially this is principally about the exercise of power and if you seriously consider those who are calling for the removal of 18C, without exception they are in positions of relative power and don't want to be held to account for the abuse of that power and their abuse of people.
If you imagine a strong man who has powerful fists, he would probably argue that he has the right to swing those fists anywhere he likes. If we assume that this is correct, then presumably his right to swing his fists ends at the point of someone else's face. If it does not, then he has the right to punch people in the face; without consequence.
This is what section 18C of the Racial Discrimination Act 1975 is akin to. Just like the laws of defamation which say that the right to free speech ends at the point where someone else's reputation is injured, 18C says that where something is going to " offend, insult, humiliate or intimidate" someone on the basis of race, then that is the point where free speech ends there. If you remove those words and replace them with the singular word "harass" which is both vague and as yet undefined within the Racial Discrimination Act, which is exactly what the Cabinet has suggested, then the point at which the right ends moves beyond the point of injury. Changing the Act in this way is like placing the right of the strong man to punch someone in the face within the bounds of what is allowed. That's fine if you happen to be the strong man but if you happen to be the one whose eye socket is cracked then you no longer have any ability to hold the abuse of power to account.
We aren't talking about hurt feelings here either. The High Court case of Creek v Cairns Post Pty Ltd (2001) defines those three words more accurately:
Pursuant to the section the nature or quality of the act in question is tested by the effect which it is reasonably likely to have on another person of the racial or other group referred to in par (b) of the subsection. To “offend, insult, humiliate or intimidate” are profound and serious effects, not to be likened to mere slights. Having said that, the court would of course be conscious of the need to consider the reaction from that person or group’s perspective. If par (a) of the subsection is established, as it is here, it is necessary then to consider the additional requirement relating to the reason for the act.
- Creek v Cairns Post Pty Ltd (2001)
Notice that this specifically ruled that "mere slights" aren't grounds for prosecution under the Act. This case also applies a test of the so-called reasonable person. This test has a very long tradition at common law and "the man on the Clapham Omnibus" has almost passed into cliché because it is so often used in the legal profession.
What I find almost incredulous about this is that less than a fortnight after One Nation was roundly rejected at the polls in the Western Australian state election, where many of their members have espoused racist and religiously intolerant sentiments, the Federal Government picked it up and decided to make those things policy. This is basically telling the people of Australia that they have got it wrong, that the government knows better and that racism as defined by law and where it causes injury, is okay.
Unless I am in a minority and think that the current law is fine because racism is unacceptable, then the only logical conclusion that I can draw is that the country thinks that it is acceptable. If this is true, then please forgive me Australia when I look at you with contempt.
I see Truganini captured; I see the Australian flag in flames² and let it burn. If that causes you to be offended, insulted, humiliated or intimidated, then you had better turn the fault light back on yourself because you are the ones calling for racism to be acceptable at law.