Discrimination based on a person's racial origin is quite simply unacceptable and wrong.
Australia is blessed to have a pluralistic society, one in which our country is constantly enriched by an ever-expanding cultural diversity. But as with any blessing, the cultural diversity that makes this country great is not something we should ever take for granted. As Frank Lowy warned in his inaugural Australian Multicultural Council Lecture in 2012 "we should resist the temptation to view Australia's multicultural experience through rose-coloured glasses." Self-delusion can be a dangerous trap and we must be ever vigilant in protecting the values that we consider define us as a nation.
As the daughter of Italian immigrant parents, I am proud of my migrant heritage and grateful for the opportunities this country has given me and my family. And while Australia can arguably claim to be the most successful multicultural nation in the world, we are far from perfect and regrettably not immune from the scourge of racism. It would be a tragedy if we were to ever permit one of our great strengths – our racial and cultural diversity – to become something that divides us.
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It is for this reason and as someone who has been on the receiving end of racial hatred speech for most of my life that I am most concerned we take the time to get the balance right on the changes being proposed to the Race Discrimination Act.
This issue goes to the heart of what kind of society we have in Australia; whether we are a society that builds on the strength of our multicultural heritage, or whether we become a society that is characterised by intolerance and bigotry.
While we cannot legislate to stop people's thoughts, we can legislate to stop people's conduct. To this end, I am most pleased that the proposed Bill does include some significant changes, in particular the proposed amendments will be the first time that racial vilification has been specifically identified in Commonwealth legislation as an illegal activity and sends a clear message that it is unacceptable in the Australian community. This is a significant step forward.
In this regard, I do agree with the recent statement by the Attorney-General, Senator the Hon George Brandis QC that freedom of speech and the need to protect people from racial vilification are not inconsistent objectives. Laws that are designed to prohibit racial vilification should not be used as a vehicle to attack legitimate freedoms of speech.
The key to achieving this balance lies in determining what are "legitimate freedoms of speech"?
And it is here that I must admit to being particularly confused by what appears to be the contradictory exception contained in the proposed sub-section 4 to the Bill, which states that the new vilification provisions do not apply to:
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" … 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."
If the purpose of this Bill is to prohibit racial vilification while at the same time protecting legitimate freedoms of speech, I am at a loss to see how racial vilification of any kind, anywhere could ever be seen as a "legitimate freedom of speech".
The issue of free speech, however, has always been a highly emotive and contentious one, not just in this country, but all around the world. Consistently people embrace the concept of freedom of speech in terms of promoting their own freedom, but want to see the freedom of others, especially to the extent that they may be critical of them, curtailed.
The concept of free speech appears to be almost universally misunderstood. Speech is only 'free' to the extent that is does not infringe on other rights.
While Australia does not have an explicit right to free speech, in 1992 the High Court found representative democracy to be constitutionally entrenched and recognised an implied right to freedom of communication on all political matters applying to all three levels of government, local, state and federal. It should be noted, however, that the Court did stress that this freedom is not absolute.
Australia is also a signatory to the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).
The qualified nature of the right to free speech is recognised by article 19 of the Universal Declaration of Human Rights, which states that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 19(2) of the ICCPR states that:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
However, this is followed by article 19(3), which qualifies this right:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals.
It can be seen, therefore, that the application of any notion or expectation of free speech will inevitably be subject to a balancing act between competing rights. Is it any wonder then that this legal labyrinth creates confusion?
In this context, I am concerned that the consultation period (which closed on 30 April 2014) for the Freedom of Speech (Repeal of s.18C) Bill 2014 (Cth) has been insufficient in terms of allowing concerned Australians an opportunity to be heard on these proposed amendments. To this end, I have written to both the Prime Minister and the Attorney-General requesting that this deadline be extended. Democracy should not be subject to an egg timer and there should never be a deadline on any government's willingness to listen to its people.
In many respects it galls me that freedom of speech and racial hatred speech are even being considered as competing concepts, but such is the level of confusion that appears to pervade the country.
Some have interpreted my concerns with the proposed Bill as effectively promoting support for what has been described as the "hurt feelings" provisions of the existing legislation. I specifically refer to Andrew Bolt's blog in the Herald Sun on 27 April in which Andrew asks the rhetorical question as to whether I "really think we need laws that would have let her (me) sue the children who teased her at school?"
Andrew went on in his blog to 'ask' me two further questions:
"If (sic) Gambaro seriously saying she would have used those protections? In her case, wasn't success really the best revenge?
"And if playground insults are evidence for needing such laws, why not extend these protections to cover insults lite (sic) "fatty", "shorty", "loser" and other kinds of abuse so damaging to children?"
Despite not contacting me directly to discuss any of these issues, as a courtesy to Andrew I am happy to provide the following responses to his questions: (1) No; (2) No; (3) I am motivated by a desire to live in an Australian society which has tolerance at its heart not revenge – so No; (4) I consider that this final proposition as posed by Andrew trivialises and to some extent ridicules the need for a line in the sand to be drawn somewhere on what is acceptable and what is not in terms of what constitutes racially vilifying speech.
Let me be clear, I do not claim to have all the answers as to what is a difficult public policy issue – balancing competing public interests always is. This is why the debate that we are having now is not only important, but vital – more Australians need to be heard.
As for any perceived need to regulate the school yard, there is an adage that comes to mind - from small things big things grow. My own personal experiences of being subjected to racial hatred speech certainly started in the school yard, but regrettably did not stop there.
With all due respect to Andrew, it is disappointing that he sought to trivialise the personal experiences that I touched on. While I will not expand on the extremely cruel and malicious behaviours that I have been subjected to in the school yard and beyond, I will say this - in the normal course of events children graduate from school and some learnt behaviours graduate with them manifesting themselves in less than desirable ways.
I do not for a moment advocate that we should wrap Australian society up in a strait jacket of political correctness to such an extent where claimed sensitivities extend to the ridiculous. But I do believe that collectively we need to embrace a greater understanding of what racism looks like and how it expresses itself, rather than in our ignorance assuming what the experiences of others are whether they be in the school yard or elsewhere.
The laws of our country should not only set standards of behaviour, they should also provide the framework for a more far reaching set of values that pervades throughout society – even into the playground. We need to take the time to get this balance right; it is after all about shaping the law that will govern us all.