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Period: Towards the New Millennium »
Commentary on: Race hatred legislation »
Prof Andrew Jakubowicz.
Text Commentary
The right to be different without fear...
1995 - The Race Hatred Act passed... but debate over punishment continues
Campaigns to counter racism in Australia, such as the one illustrated in this poster, have been limited in scope and power - in part because there is no criminal sanction in federal law against race hatred statements. However, in the mid 1960s the international community, through the United Nations and its Convention on the Elimination of Racial Discrimination (CERD), recognised that governments should make acts or behaviour based on racial hatred or superiority unlawful (eg racist propaganda or racist violence). When Australia signed the Convention in 1966 it did not agree to this clause. A debate was set in train which slowly grew into a major national issue.
By 1975, when the Government sought to ratify the Convention, it was unable to gain Senate support for this element. The Opposition would not agree to limiting the rights of people to say what they wished about race, however uncomfortable such language or actions might make members of minorities feel. Since then three major inquiries – the Australian Law Reform Commission’s Report into Multiculturalism and the Law, the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into Racist Violence - have all called for a federal law against incitement to racial hatred, though their detailed proposals differ.
Some examples of the sorts of acts that might be covered by such legislation include written and printed racist propaganda, spoken words used in public meetings and other public places, radio and TV broadcasts, filmed or staged material, gestures (such as forms of salute), prerecorded telephone messages, the wearing or display of special clothing, signs (such as graffiti), flags, emblems, and insignia. Exemptions do exist in a number of instances if those actions “were done reasonably and in good faith”, for example, public discussion about public policy such as multiculturalism, an artistic work, or a fair and accurate report by the media on a matter of public interest.
In 1995, the Government tried to pass racial vilification legislation (amendments to the Racial Discrimination Act 1975). Again the Opposition opposed having criminal sanctions for people who advocated race hatred, proposing only that there should be a community awareness and education campaign. The Racial Hatred Act was passed in October 1995. It makes public acts based on racial hatred (words, sounds, images) unlawful. The sanctions are civil, not criminal, which means people are only able to make a complaint to the Human Rights and Equal Opportunity Commission. If there is no resolution there, HREOC can issue an order, through a formal hearing process, which may then need to be enforced through the Federal Court. Some commentators believe that the legislation passed by the Parliament still failed to meet the obligations Australia undertook when it first addressed the issue thirty years before.
The debate around the racial hatred legislation raises a number of issues. How free should speech be? Are we free to say anything we like, on any topic, anywhere, which includes the freedom to vilify others because of their race, colour or ethnicity? There are limits on free speech already, eg blasphemy, defamation. Should those limits be extended to make incitement to racial hatred illegal?
Opponents of the legislation regard it as a serious attempt to muzzle open debate on serious issues such as multiculturalism and immigration. They quote Voltaire who said: “I disapprove of what you say but I will defend to the death your right to say it”. They believe democracy is vigorous enough in Australia to withstand racist sentiment publicly expressed.
It should be noted that in 1989, NSW became the first state in Australia to outlaw incitement to racial vilification. This amendment to the Anti-Discrimination Act focused on conciliation, but allowed for a case to proceed to a tribunal and, for serious offences which involved threats of violence or property damage, to be referred to the Attorney-General for criminal proceedings.
Further reference:
Vasta, E and Castles, S (eds) The Teeth are Smiling: the persistence of racism in multicultural Australia, Sydney, Allen and Unwin, 1996.
There are many websites, originating both in Australia and overseas, and which change from time to time, on issues surrounding racism.