The need to protect Section 18C

Interview with Australia’s Race Discrimination Commissioner

The Race Discrimination Commissioner spoke to ECCV at the recent 2013 FECCA conference, on the government’s proposed repeal of section 18C of the Racial Discrimination Act, a section he considers strikes a good balance between freedom of speech and the need to protect against racial vilification.

The government has promised to repeal section 18C of the Racial Discrimination Act, what do you think the implications might be?

Well we need to see what is exactly being proposed, it’s not clear whether there will be a complete repeal of section 18C or whether it’s a change to some wording in the current provisions; but in any debate it’s important that we are aware of how the law has actually operated since 1995 and the way the courts have interpreted that section has been to balance freedom of speech against freedom from racial vilification. The provision does not refer to behaviour that causes slights or hurt feelings; it refers to incidents where people suffer serious and profound harm that is a point that is worth recognising in any debate. As is the fact that the legislation very explicitly protects free speech there are exemptions in the Racial Discrimination Act which are based on free speech as long as you say something that is in the public interest, that is done reasonably and in good faith you will not full fall of the law.  

How can we convince the government not to repeal it?

The government has made clear its intentions, it’s important that with any change to the law that we ask about the potential social impacts of the change. We have had laws concerning racial vilification for close to 20 years, they have been the expression of our values as a multicultural society that values racial tolerance. It will be important that Australians continue to enjoy effective legislative protections against racial vilification.

The 2013 Scanlon Report pointed to an increase in the number of people reporting having experienced racial abuse, does this means there has been an increase in cases or are people reporting more than in the past?

In the case of the Scanlon report that was a survey so it didn’t refer to actual complaints being made but at the Human Rights Commission in 2012/13 we received a 59% increase in racial vilification complaints. The Scanlon Foundation report finds a similar rise in the sentiment that people have experienced racial or religious discrimination during the past 12 months. It’s always hard to explain why these things happen or why there is a variation from year to year but I would be inclined to say that the level of our political debate and the tone of our political discussions can have a very big impact on how people experience social relations in everyday life.

You spoke a lot about multiculturalism in your speech and how we are a successful model of it here in Australia but can we have so many issues with racism and still be considered successful?

It’s a reminder that it’s an ongoing challenge, the task of realising a multicultural idea will never be fulfilled in one sense and that is because Australian society does not remain static - we still take in around 200,000 immigrants every year, so the issues we have had in the past will continue to be issues in the future. But if you take a long term view of Australian society and look at social cohesion we can be proud of the results that we have achieved. Australia does very well, we are a socially mobile society and the fact that the children of immigrants can participate in our society and in some places outperform Australian born children in education, is a real vindication of how open we are as a society and how opportunity is spread in our country.

In terms of standing up against racism the main advice is not so much for victims but for those who witness it. We advise witnesses to report incidents if victims don’t, what other advice would you give?

Standing up to racism is something that everybody can do and is not confined to victims or bystanders. When you see an incident happening you should think about the ways that you can intervene. This is not always going to be a case where you can physically intervene particularly if it’s a dangerous situation but you can report an incident, bear witness, you can give comfort to a victim and let them know that what has happened is not reflective of society more generally. For the perpetrators it is important that they think twice about the impacts of their words and behaviour. Quite often things can have racist implications even if they aren’t accompanied by malicious intent, quite often things don’t need to be intended in a fundamentally evil way to harm others , it’s about the impact that is important, that‘s ultimately what matters not the intention.

Do you think migrant communities are aware of the different types of racism or does there need to be more education or involvement from services providers and others to inform them and help them address the problem?

People should be aware of the legal protections that are available to them under the Racial Discrimination Act, we can always do more to increase awareness of that. People often experience episodes of racism, they may complain to a friend or family member but they won’t do anything more and in those serious cases where you have experienced discrimination you should be aware of what your legal avenues are. If you make complaints they will be conciliated by the commission, we resolve most of the cases we conciliate and it provides some means of redress for injustice when it happens. 

Dr Tim Soutphommasane, Race Discrimination Commissioner Human Rights, Australian Human Rights Commission  

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