The deadline for submissions has passed, but the backlash against the proposals to water down legal protections against racial vilification continues unabated. .
Approximately 25 per cent of the people of NSW were born overseas, while another 25 per cent have at least one parent who was born overseas, and the representative organisations of a large number of ethnic and indigenous communities have voiced opposition to the proposals. Not one has expressed support.
The safeguards provided by Sections 18C and 18D of the Racial Discrimination Act have been in place for almost 20 years, including during the 11 years of the Howard government, giving targets of hate speech a peaceful and legal avenue of redress. These laws have helped resolve hundreds of cases that would otherwise have been left to fester.
Yet it would be a mistake to conclude that the opposition to the changes is about protecting cultural diversity, as suggested in a recent column in a mainstream newspaper. It has nothing do with protecting diversity and everything to do with protecting and enhancing social harmony and inclusion. Sections 18C and 18D do not only protect minority communities; by prohibiting the dissemination in Australia of imported, as well as home-grown, forms of racial vilification, these laws protect all Australians.
Proponents of the proposed changes have claimed that they would introduce new protections, specifically against racial vilification. This is disingenuous. Both supporters and opponents of the proposals have stated publicly that the proposals would in fact weaken the existing protections.
First, the proposals do not define “vilify” according to its ordinary dictionary meaning and common usage, which is “to speak evil of, defame or traduce”. Instead, the proposed definition would be limited to “inciting” third-party onlookers. Vicious racist verbal abuse that does not “incite” others to hatred can nevertheless have a devastating effect on its victims. This would not be covered.
Second, the proposals give the word “intimidate” an artificially narrow meaning - “to cause fear of physical harm”. The dictionary definition of “intimidate” covers a broad range of situations in which fear is caused, beyond fear of physical harm. Such situations might include fear of social stigmatisation and loss of social standing and acceptance, fear of loss of friendship and support networks, fear of exclusion from employment opportunities and fear for the well-being of loved ones. The courts have adopted the dictionary definition of “intimidate”, and the proponents of the change have provided no good reason for adopting a narrower definition. Nor has anyone articulated exactly what it is they would like to say that the law as it stands is preventing them from saying.
Third, even if conduct amounts to vilification or intimidation under the proposals, it would enjoy complete exemption if it occurs in the course of “public discussion” about virtually any matter. A “public discussion” would likely include anything said or written in the print and electronic media, on websites, in social media and at public meetings.
The changes would mean that a successful effort against Facebook in 2012 which succeeded in it removing or making inaccessible in Australia hundreds of crudely racist images and comments that had appeared on 51 Facebook pages would have failed. In the US, which has no laws against racial vilification, efforts to have Facebook remove such material have failed.
There is extensive research and literature concerning the harms of racial vilification. These extend well beyond mere hurt feelings or injured sensibilities and can include disempowering victims by excluding them from society, limiting their personal liberty and intimidating them into silence. Racism desensitises society to the humanity of its targets, often as a precursor to violence.
If passed, the proposed changes to the law governing racial vilification would send a dangerous signal that hate speech is sanctioned as a form of freedom of speech and that bigotry has a place in our society. Such changes would give succour to those who harbour bigoted views and would reassure them that they may bring those views into the public domain, aware that their targets would have no alternative but to suffer in silence or dignify their tormentors with a response.
The practical effect would be that far fewer cases of racist behaviour would be deemed unlawful, and many cases would not only be excused, but even celebrated as a demonstration of freedom of speech. The question for all of us is whether this is the kind of society we want Australia to be.
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