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Abbott’s temporary reprieve for hate speech prohibition

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Moira Rayner |  07 August 2014

We wish to inform you that tomorrow we will be killed with our families.

That is the title of a book of stories from Rwanda written by New Yorker staff writer Philip Gourevitch.

The quote comes from a letter written by seven Tutsi pastors to their leader, Pastor Ntakirutimana, on 15 April 1994. They asked him to intervene and save their lives, ‘The same way as the Jews were saved by Esther.’ 

He didn’t.

Gourevitch paints a detailed background to the 1994 Rwandan genocide: the slow build of hate speech; the ubiquitous anti-Tutsi ‘discussions’ by Hutu spokesmen, including the 1990 publication by charismatic Hutu extremist, Hassan Ngezea of the ‘Hutu Ten Commandments’. These were premised on a fabulous and deadly doctrine of Hutu ‘racial’ purity, their 1959 revolution, and the necessity of solidarity against ‘our common Tutsi enemy.’ The most often cited commandment was, ‘Hutus must stop having mercy on the Tutsis’.

This immensely popular and widely spread work was championed by then-President Habyarimany as proof of Rwanda’s freedom of the press. 

The radio broadcasts did the rest, in April 1994.

Fresh from the war-crime trials about the effect of anti-Semitic ‘racial purity’ propaganda on humanity after WWII, the UN and most countries have made laws prohibiting stirring up racial discrimination.

Australia’s Racial Discrimination Act 1975 has from the beginning, read:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (Section 6)

There was no explicit ground of ‘racial harassment’ in the Act. It is just a form of discrimination. There is a sexual harassment remedy in the Sex Discrimination Act 1984 and a harassment provision under Disability Discrimination act 1992. 

The RDA Act was later amended to include a new Section 18C prohibiting:

‘Offensive behaviour because of race, colour or national or ethnic origin

(1)  It is unlawful for a person to do an act, otherwise than in private, if:
 (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
 (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.

The next section gave exemptions, on which the a careless and opinionated newspaper columnist, Andrew Bolt relied, and failed to establish that he had acted:

“(R)easonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
  (i)  a fair and accurate report of any event or matter of public interest; or
  (ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Bolt failed, because many of his ‘facts’ were not, his language was intemperate and the judge said it wasn’t a fair and accurate report. He wasn’t fined or made to apologise. His employer had to correct his misleading words and paid his legal costs. 

The Coalition thought this was a frightful blow for ‘freedom of speech’. Early this year the federal Attorney General published an alternative regime:

1. “It is unlawful for a person to do an act, otherwise than in private, if:
 a. the act is reasonably likely:
   i. to vilify another person or a group of persons; or
   ii. to intimidate another person or a group of persons, and
 b. the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.

2. For the purposes of this section:
 a. vilify means to incite hatred against a person or a group of persons;
 b. intimidate means to cause fear of physical harm:
  1. to a person; or
  2. to the property of a person; or
  3. to the members of a group of persons.

3. Whether an act is reasonably likely to have the effect specified in sub-section (1)(a) is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.

4. This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”

Quite rightly, the bill was seen to remove all limits on ‘freedom of speech’ without regard to the vulnerability of those targeted. It also applied an explicitly racist test of what might be ‘reasonably likely’ to offend or intimidate.

Applied to the Bolt circumstances, only someone who wasn’t an Aboriginal person – with all the dispossession and disadvantage that include – could stand in the shoes of a ‘pale-skinned’ Aboriginal, and pretend to know what would be ‘reasonably likely’ to offend him or her. 

Andrew Bolt was infuriated, Senator Brandis lost face and his new Human Rights Commissioner Tim Wilson was ‘disturbed’ by the bill being shelved. The IPA is rabid. But the PM is a pragmatist, and there are obvious risks of running both this and his new ‘anti-terrorist’ legislation at the same time. That is aimed at radicalised Muslims who might participate in ‘jihad’-like activities, and removes traditional civil rights, such as being considered innocent until proven guilty. It will apply to other radicalised groups, too. Think about it.

Prime Minister Abbott shelved, didn’t withdraw, this new provision. It will come again. Abbott said he did it because everyone should be part of ‘Team Australia.’ He obviously hasn’t seen the brilliant animated feature, ‘Team America.’  

Team Australia? “Feck, Yeah!”


Moira Rayner headshotMoira Rayner is a barrister and writer.

 



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Submitted comments

It is good that the Prime Minister withdrew the proposed changes, and Moira Rayner clearly explains why. I would add that in a multicultural society such as Australia, the withdrawn legislation's tests of offensiveness as "determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community" is dangerously loose language, that many ethnic and/or religiously based groups in Australia - including, significantly, Australian Jews supportive of present Israel Govt actions in Gaza - rightly felt could limit their legal protections from majority-sanctioned incitement of hatred. That sensitivity was seen in response to the Le Lievre cartoon illustrating Mike Carlton's piece in the Fairfax press criticising Israel's mass bombings and shellings against Gaza. Many 'ordinary, reasonable' Australians would have thought that article, and even the cartoon, fair comment. But many Australian Jews clearly did not. Brandis's changes would have left them vulnerable, and the same can be said of many minority groups - including Muslims - in our blessedly multicultural country. In the end, it was the Jewish community's apprehensions about the new law that were most politically persuasive. In fact, their quiet advocacy of leaving the law unchanged has done us all a favour. In 1933-45, a majority of "ordinary, reasonable' Germans had been taught to hate and fear Jews. And look where that led.

Tony Kevin 08 August 2014

I think the Cronulla Riots on Australia Day some years ago should alert us to the risks of "dumbing down" the Racial Discrimination Act. My wife is of Asian origin having now lived here over 30 years. We were subjected to an incident in Sydney shocking ,very hurtful . My children have told us of incidents while they were at school. I remember being told by a staff member at the school I taught at while my children were in Primary School,that my children were not welcome to come to the Staff Room to wait for me as I completed my teaching duties. I was shocked as the school was a Catholic College. Sadly racism and bigotry are very much alive in this country and we need strong law to regulate such unacceptable behaviour.

Gavin O'Brien 08 August 2014

The Race Discrimination Commissioner Tim Soutphommasane was prominent in the chorus of Left-wingers who approved the prosecution of Right-winger Andrew Bolt under Section 18C. But when the Left-winger Mike Carlton made racist and abusive comments about Jewish people Soutphommasane was equivocal with the statement that he is “agnostic.” It is politics not principles that now govern the once intellectually formidable Left. Section 18C diminishes free speech while promoting a new “right” not to be offended. It diminishes free argument in matters of public interest and makes it harder to defend the national interest by enabling minority groups to claim to be offended by anyone who expresses opinions they feel to be against their own interests.

Ross Howard 08 August 2014

Fortunately, there has been a reprieve. Lets hope this dont get up ever again. I am also a volunteer and can provide details of appalling experiences. Honesty and truth are a fickle commodity in Australian public life and with the law based on interpretation (not explicit definition of human rights), the deteriorating plight, effect and consequences on dark skinned educated Indian professionals of Australian citizenship are distant from most Anglo Saxon Australians. Many Indian-looking Australian citizens have not immigrated as refugees but on skilled visas from a high socio economic demographic.

Jackie 09 August 2014

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