No change to Section 18C of the Racial Discrimination Act

The Australian Senate has sent proposed changes to section 18C of the RDA to the shredder.

The three words “offend “insult” and “humiliate” planned to be replaced with “harass” in relation to racial comments to others stay in law.

The law has been in place for 20 years and moves to change it have been making news for three years.

The proposed changes were opposed in the Senate by Labor, the Greens, Nick Xenophon, Jacqui Lambie and others.

Procedural changes in 18C remain to be dealt with.

Shadow Attorney-General Mark Dreyfus said: “Last night’s defeat of changes to section 18C in the Senate is a victory for multicultural Australia of which we should all be proud.

But the fight to save Australia’s protections against racist hate speech isn’t over – it’s only just beginning.

Weakening protections against racial hate speech never made sense. The backlash to the government’s proposals was immense.

Multicultural communities around Australia rose up and said “no” to more racism in Australia. We thank them for their efforts – they made all the difference.

Section 18C of the Racial Discrimination Act is a good law which has functioned well for 20 years. It never needed to be changed, and the Senate agreed.

The bulk of the procedural changes in the bill have not yet been dealt with. The government is still refusing to accept the sensible advice of the Human Rights Commission and the Law Council of Australia, that several proposed changes will be damaging and counterproductive.

Labor always agreed that some changes had to be made to the processes of the Human Rights Commission – they just did not have to be tied up with weakening of protections against racial hate speech.

Shadow Minister for Multicultural Affairs Tony Burke said: “This win will be felt by anyone who has experienced racism and knows that racism is more than just words.”

Shadow Attorney-General Mark Dreyfus said: “The Liberals were defeated when they tried to repeal section 18C entirely in 2014 – and yet here we are, and they have tried and failed to weaken it once again.

“This government has an ideological obsession with section 18C and Prime Minister Turnbull’s right-wing masters won’t give up easily. Labor will always fight to keep section 18C safe for good.”

Dr Andre Oboler is the CEO of The Online Hate Prevention Institute and has J-Wire an analysis of the end of the Section 18C proposed changes, what lead to the vote and what may happen next…

 

Executive director of The Executive Council of Australian Jewry Peter Wertheim told J-Wire: “This is a gratifying outcome.   All of the proposed changes to the Racial Discrimination Act were defeated in the Senate, and will not go ahead.  Section 18C of the Act will remain unchanged.  The two proposals to water it down were rejected.  For the Jewish community and other communities, this is a most important outcome.  It means that a key tool that we use on a regular basis to combat racism will remain at our disposal, and the ECAJ will not have to re-litigate issues concerning the unlawfulness of antisemitic hate speech that it fought and won in previous cases under the existing law.

The government also put forward proposed amendments to the Australian Human Rights Commission Act.  These are intended to improve the Commission’s processes for handling  complaints.  In general we supported these changes, and they have now been passed by the Senate with some amendments.  It is likely that they will be passed by  the House of Representatives today, and become law.

All in all, the position advocated by the ECAJ from the outset, and by allied organisations representing other ethnic communities,  is exactly where we have landed.  This is a victory for common sense.  

The Jewish community owes a debt of gratitude to Coalition MPs, both in the Cabinet and on the back bench, who resisted the push from their colleagues to water down section 18C, as well as to Labor and to the Greens.  We extend a special thank you to the Nick Xenophon Team, with whom we were in close touch throughout, and to Senator Jackie Lambie, for their principled stance which was critical to achieving this outcome.

For the second time in three years, the Jewish community, in co-operation with the Indigenous, Greek, Chinese, Armenian, Arab, Vietnamese, Korean and other communities, have seen off a determined campaign to repeal or emasculate section 18C.  Even though polls have repeatedly shown that the vast majority of Australians support the retention of section 18C in its present form, we cannot rule out the possibility that further attempts will be made against it in the future.  We must and we will remain vigilant.

Michael Danby spoke in 18C in parliament yesterday…

From Dr Andre Oboler:

Protecting Australians and our values

The campaign to change S18C was pushed by the Institute of Public Affairs (who in the past have pushed an agenda denying global warming and opposing plain packaging of cigarettes) and was based on misrepresentation and misinformation. It was also pushed by Andrew Bolt, a person with an extreme amount of power in society through his media roles, who was found by a court to have misused his role in attacking others on the basis of their race. This was a case of people representing powerful interests wanting to remove any semblance of a check on their ability to abuse others.

As Attorney General George Brandis said in an earlier debate about weakening this (already fairly weak) law, “people have a right to be bigots”. People can think what they like. In private they can say what they like. What S18C does, and has done well for over 20 years, is to regulate what is said and published in public so that speech that attacks minorities on the basis of their race or ethnicity, and has a profound or serious impact on them, is unlawful (but not criminal). This means the victim can ask for a meeting, hosted by the Australian Human Rights Commission, who will try get the parties to agree a solution that will put the matter to bed. That usually involves the person who made the offending remarks learning why what they did would have such a huge impact on the people they mentioned, and as a result of that they usually give an apology and if it is online they remove the content. And there the matter ends.

It is only a tiny number of cases, like that of Andrew Bolt, where the people who made the racist statements didn’t get that what they did was wrong, and the victim had the time and resources to proceed to court. If you proceed to court, even if you win you will end up out-of-pocket, it isn’t something people do lightly and it isn’t something that happens very often. There have been no cases decided by the courts which anyone feels were wrongly decided. Under the existing law, which will now continue as is, the courts have consistently rejected cases where the racist statements were merely offensive or insulting. The law requires a much higher standard. The much talked about QUT case LOST at court under the EXISTING law. Claims by some that the bar in S18C needs to be raised were  based on messages pushed by those wanting the bar raised so high that minorities in Australia would have no protection at all.

Protecting freedom of speech

The messages about a need to protect “free speech” used fear and bigotry as people tried get their own way. Those promoting these messages spread the myth that the changes were needed so people would speak about Islam without fear. This is clearly tapping into a level of fear in society as a result of terrorism over recent years. but also a level of bigotry which promotes the idea that it is Muslims in general and not the extremists (Muslim or otherwise) who are responsible for the terrorist attacks.

We’ve seen how people latch on to the promotion of anti-Muslim fear and bigotry at any excuse. The Burke Street attack in Melbourne, for example, had nothing to do with Islam nor was the attacker Muslim, yet that didn’t stop some (and not only on the far right) from misrepresenting the facts and using it to stoke further hate and fear. It’s appalling that similar tactics have been used to promote the watering down of one of the few laws which actually protects freedom of speech.

The Racial Discrimination Act has never prevented people attacking others on the basis of their religion as it is explicitly and exclusively about racism – not religious vilification. As much as we may wish it were otherwise, specially in the current climate, Islam and Muslims are simply not covered by this law. Further, S18D (which goes with S18C) explicitly and completely protects any necessary violate S18C which is done for the purpose of journalism, research, the arts, or indeed in the making of any statement in the public interest. The only requirement is that you must be acting reasonably and in good faith, in other words, you must genuinely be seeking to engage in journalism, research etc and not just trying to use your position to deliberately attack people because you think you can get away with it.

The Racism Discrimination Act ensures all Australians are able to feel a part of our society. It ensure people from minority communities can engage in political discussion without fear their ethnicity will be used to silence them. It ensure a huge number of Australians can go about their lives, be it work, study or their free time, without feeling hatred is being incited against them or that they, as Australians, are unwelcome here in Australia. The Racial Discrimination Act ensure a large number of Australians can freely form political views, express them, and hear the views of others. Protecting this is essential to protecting freedom of speech in Australia, in fact, it is the basis on which our free speech (or more accurately, our constitutionally implied freedom of political communication) is based. From a freedom of speech point of view, attacking S18C never made any sense in the first place.

Where to next?

A huge amount of effort by hardworking politicians and parliamentary staff went into running an inquiry into Freedom of Speech and S18C. The resulting report from the Parliamentary Joint Committee on Human Rights is available and has a number of recommendations, the first of which centers around public education given the level of misinformation about the existing law and the level of misunderstanding that is generating. This needs to be a priority. 

While the changes were defeated in the Senate, they remain party policy for the coalition. That creates a clear political divide in Australia on the basis of race politics. This is incredibly unhealthy for our multicultural society. The choice will eventually revert to the Australian people at the next election. The result, as seen in the Western Australian election, may end up being decisive. Particularly given we already know 80% to 90%  of people disagree with the policy of changing S18C and this is likely to grow as the issues of misinformation and misrepresentation are tackled.

Following the defeat of this legislation in the Senate it is not simply back to life as usual. Our way of life has been threatened by those with extreme views. Our values as a society have been attacked. The people are angry, organised, and distrustful of those who seem so out of touch with the reality of modern Australia. The Liberal and National Parties need to review their position on S18C and consider the poisonous and existential threat this ongoing saga poses not only to them but to our society as a whole. They have continually underestimated, or been mislead, on the depth of feeling on this issue in the community. It is time they opened their eyes, assessed the damage, and held those responsible for that damage accountable. It either happens now, or in the postmortem after them next federal election. This is not something that will be easily forgotten.

A quite part of the agenda against S18C has been the under-funding, or lack of government funding, for those agencies and charities tackling racism in Australia. This has helped the misinformation spread. It has also led to groups representing far more people and segments of the community coming together to pick up the slack. It’s time to reverse the funding trend. We know a huge amount of the racism and promotion of extremism occurs online. Australia has only one charity dedicated to this space, the Online Hate Prevention Institute, as the Federal budget is prepared, it’s time the Federal Government starts to provide funding for this work rather than empty praise and excuses.