18C: still no answer…writes Tony Burke
Parents started to keep their children inside the house, and would personally escort them to school. Adults would avoid leaving the home alone unless they absolutely had to. A woman who used to ride to her evening classes stopped going altogether, because she couldn’t face the insults hurled at her as she cycled.
These are some of the findings of the National Inquiry into Racist Violence in Australia – one of a series of inquiries and reports that lead to Section 18C of the Racial Discrimination Act being established 25 years ago.
The hard right of Malcolm Turnbull’s party demanded that this law be weakened. He promptly threw this particularly hot potato to a parliamentary inquiry for them to deal with. After months of debate and community submissions, the committee recommended no changes to our racial hate speech laws.
Malcolm Turnbull has been left holding the potato.
We didn’t need to have another inquiry to figure out that 18C is a necessary law. That fact was established 25 years ago. The overwhelming finding of that National Inquiry into Racist Violence was this: many victims considered the sub-physical forms of racial violence – the insults, intimidation, harassment and aggression – had a more severe impact than actual cases of physical assault. The violence of words could be as debilitating as physical violence.
The psychological effect of continual exposure to abusive and insulting language cannot be overlooked. Racial hate speech can result in insecurity and depression, preventing people from participating fully in society.
A major hurdle for this early inquiry into racist violence was that people who had experienced it were too afraid to come out and talk about it. Some said they feared retribution. Others said that nothing could be done to make the racial violence – the abuse, insults, and harassment – stop, so they’d rather not draw any attention to themselves. The inquiry had to create an outreach program to assure them they would be safe to talk.
Through this early inquiry they also found that verbal violence often precedes physical violence. So section 18C was born. It functioned well for 25 years before being attacked by the Abbott and Turnbull Governments.
In those 25 years, only 1.8% of racial vilification complaints have ended up in court. Most are withdrawn, rejected or, most often, conciliated by the Australian Human Rights Commission. The Andrew Bolt, Bill Leak, and QUT cases may have dominated the news cycle in recent years, but the latter two cases were withdrawn and dismissed respectively. We’ll get to Bolt.
Opponents of 18C like to stylise themselves as champions of ‘free speech’, and will point to the Bill Leak case to declare that 18C is broken. But the Bill Leak case proves the exact opposite. That case was withdrawn, but even if the case had progressed to court, it would have failed because section 18C does not function alone. There is section 18D, which defends statements that are in the public interest, in creative works, in debate or if they are genuinely held belief. Even though Bill Leak’s cartoon was tasteless, and offensive to many, 18D covers artistic purpose.
What’s not covered by 18D? Let’s take the famous Andrew Bolt case. Bolt lost the case for two of his articles. In one of the articles, titled ‘It’s so hip to be black’, he individually names several fair-skinned Aboriginal people conveyed imputations they only claimed their Aboriginal heritage for personal benefit.
He did not lose this 18C case because he questioned issues of Aboriginal identity, as he claims. That conversation might have been found to be of genuine public interest, and covered by 18D. The court ruled his articles unlawful because they contained “erroneous facts, distortions of the truth and inflammatory and provocative language.”
Twenty per cent of Australians say they have been subject to verbal racial abuse. That figure soars to 90 per cent for Aboriginal Australians. This law provides assurance to Australians of all backgrounds that, in the eyes of the law, they are not fair game. It says that public acts of racism are not tolerated. But this inquiry has sent the message that, under a Liberal government, the right to racial hate speech must be protected.
There’s a sentiment that running through this debate that says racial hate speech is “just words”.
Tell that to the woman who comes home in tears because she was abused on a train. Tell that to the child who is trembling because they’ve just watched their parents be harassed at the shops.
Since when did the person spouting racist hate speech become the victim?
Tony Burke is the Federal Labor member for Watson
He is: SHADOW MINISTER FOR THE ENVIRONMENT AND WATER, SHADOW MINISTER FOR CITIZENSHIP AND MULTICULTURAL AUSTRALIA and SHADOW MINISTER FOR THE ARTS