WHEN the parliamentary Human Rights Committee inquires into Section 18C of the Racial Discrimination Act it should recall the quote from President-elect Donald Trump about Mexicans.
Announcing his quest for the Republican nomination he said:
“When Mexico sends its people, they’re not sending their best. . . . They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”
Section 18C says:
“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.”
“Unlawful” does not mean “criminal” but it can give rise to a right to a complaint to the Australian Human Rights Commission and, if not resolved there, a right to seek damages in the Federal Circuit Court.
The law provides a fairly broad public-interest exemption for genuine public debate.
Prime Minister Malcolm Turnbull said the committee would look at the Act to see if it imposes unreasonable limits on free speech and whether the Human Rights Commissioner should be given greater powers to dismiss frivolous or vexatious claims.
It took a long time (75 years) for Australia to make racial discrimination in things like employment and housing unlawful and a further 20 years to make race-hate speech unlawful.
We did it presumably because we thought on balance that the human right not to be verbally abused or intimidated on grounds of race was more important than the freedom say whatever you like.
But the US election shows us why it is important to maintain the unlawfulness of race-hate speech.
In his book Political Order and Political Decay, US political scientist Francis Fukuyama wrote about a natural human trait to revert to tribalism. In the political realm it is a tendency to trust only family and friends (people who have done you favours and for whom you do favours in return).
This human reversion is always just under the surface and poses the threat of nepotism and corruption replacing the rule of law and appointment on merit or election alone. These are bedrocks of liberal democracy.
So race-hate speech not only threatens the human rights of those vilified, it also gives succour to the reversion to tribalism that could threaten political order itself.
Similarly with discrimination on grounds of sex. It not only affects the rights of those discriminated against, it also weakens the society because it undermines appointment on merit. Society is worse off because it does not get the best from people.
Trump’s attitudes to women and immigrants are thus not only odious but dangerous.
Fukuyama says not to assume that there is a steady progression to liberal democracy and, once there, there is no going back. He presciently warns that tribalism, patrimonialism, clientelism, nepotism and looking after your friends are always only just below the surface.
All this does not mean that Section 18C and related legislation cannot be touched. It seems apparent from the Queensland University of Technology case that there is room for improvement.
But Prime Minister Malcolm Turnbull did not seem to be across the legislation or the constitutional question when he attacked the Human Rights Commissioner Professor Gillian Triggs for not throwing out the case because it was trivial rather than letting it drag on at great cost and inconvenience to the students who were complained out.
Well, the commission does not have the power to throw cases out. The commission only has the power to receive complaints and the duty to attempt to conciliate them. The courts can only become involved if the commission fails to mediate a reconciliation.
The commission and other bodies like it could never be given power to dismiss complaints on whatever ground (frivious, vexatious, no prospect of success, etc). Once someone has a right to sue for damages under Commonwealth legislation only a court can dismiss the claim. That is because dismissing claims is a judicial act and the Constitution vests the judicial power of the Commonwealth exclusively in the High Court and other federal courts created by the Parliament.
It is an important protection for citizens that their legal rights are determined by independent judges.
The downside is that once a court proceeds judicially, it usually means invoking the rules of evidence and rules of practice and procedure. That in turn necessitates hiring lawyers if you are not going to be done over in court. That adds to cost and delay.
Perhaps one way of dealing with it would be to empower the commission to warn complainants if their case is hopeless. If they still went to court, the court could consider the warning in any costs order. That should deter the frivolous and vexatious.
A conciliation by the commission, on the other hand, is not an exercise of judicial power. It would be enforceable as a contract, not as commission decision.
Whatever, it recommends, the important thing here is that the parliamentary committee does not remove the character of unlawfulness from race-hate speech, even if it clarifies the language or streamlines the process.
And by the way, it or come other committee could also consider some far more serious freedom-of-speech impediments: the gags on people working in immigration detention centres; the whole national-security secrecy apparatus; the skewing of political debate through secretive and poorly regulated campaign funding; restrictive defamation laws; and a freedom of information system that acts more like freedom from information.
After all, these impediments detract from institution-building and nation-strengthening. The slight impediment in Section 18C does exactly the opposite.
CRISPIN HULL
This article was first published in The Canberra Times and other Fairfax Media on 12 November 2016.
I would have thought the election of Donald Trump (and Hanson candidates here) illustrates, among other things, exactly why it is risky for one section of the community, however self-righteous they feel, to attempt to impose its values on what is apparently as yet the majority. Unless one proposes to remove their right to vote, the “wrong-headed” section will need to be persuaded to more progressive values by more nuanced means than legal sanctions.
This article is nonsense.
Freedom of expression,freedom to criticize, is not negotiable in a democratic society.
At present it is the PC Pixies who dispute this axiom. In the past,and probably in the future,in the West, it is totalitarian regimes.
Take a look at China,Russia,every Islamist nation and see,if you can, what political correctness leads to.
Morning Crispin’
Interesting take, except that ‘Mexican’ is not a race but a nationality.
There is only one race – the human race – and so-called ‘race hate’ legislation perpetuates
the fallacy. I suspect it will be a long time before this is accepted, since half the population of America still rejects evolution, but it should not be beyond the wit of lawyers to address the legislation correctly.
Robert