Monday, November 18, 2013

OPINION: Coalition's change to racial vilification laws kowtows to media mates

Political conservatism is such a wonderful thing. The status quo is worth maintaining because it obviously works. If it didn't, people wouldn't allow it to remain the status quo. But if you find the status quo doesn't work, change it gradually. It recognises that the populace are human beings not accustomed to radical change. Evolution always makes more sense than revolution, unless your preference is the rule of guillotines.

Since 1975, the Commonwealth has had in place the Racial Vilification Act, which seeks to implement our international legal obligations including the International Convention on the Elimination of All Forms of Racial Discrimination. Twenty years later, the act was amended to introduce provisions on racial hatred.

These provisions, contained in Section 18C, make it unlawful for someone to publicly do something that is reasonably likely to offend, assault, humiliate or intimidate someone or a group. Now it isn't just any action that could be unlawful. It must be an action that is done because of the other person or group's race, colour or national or ethnic origin.

The provision makes such an action unlawful but not necessarily a criminal offence. An offended party or group must first make a complaint to the Human Rights Commission, which will then try to conciliate the matter.
The provisions were passed with the support of the Keating government and the Howard-led opposition. Tony Abbott sat in the same Parliament.

In its 2008-09 publication Federal Discrimination Law, the body we now know of as the Human Rights Commission stated: ''Racial hatred provisions were introduced into the RDA in 1995.

''The majority of cases decided under the RDA in recent years have involved consideration of those provisions.''

In other words, Section 18C has represented the vast majority of cases decided by the Federal and other courts. This in itself is not a bad thing. Judicial decisions make up a fair chunk of our common-law system.

So what is the purpose of such, or indeed, of any law? During his first speech on August 14, 2000, Senator George Brandis spoke of the importance of civil and other liberties. ''It follows from what I have said that the first duty of any government is to protect the liberty of the citizen to choose his own ends - and that includes protecting the liberty of the citizen from government itself.''

But as a relatively ''wet'' or ''small-l'' liberal, Brandis emphasised that ''of all the obligations of government, perhaps the most fundamental is this - the obligation to protect the weak from the strong''. No doubt this is exactly what parliamentarians at the time had in mind. The legislative consensus was that individuals and groups can be, and often are, subject to vilification by the more powerful. Such vilification has real effects on the lives of real people.

This begs the question as to why the provision has all of a sudden become known as the ''Andrew Bolt law'' and why it is all of a sudden so contentious?

 When it comes to the strong versus weak binary, Bolt was hardly in the category of the latter. He is the main columnist of the most widely read newspaper in the country. He has a TV show which, despite poor ratings, still commands a bigger audience than all the allegedly ''white'' Aboriginal complainants in the Bolt case combined. He has the ear of Coalition parties.

On December 7, 2009, Bolt blogged: ''Our traffic last month smashed all our previous records. The blog registered more than 2 million page impressions from more than 300,000 unique browsers.''

In the rare event Bolt's writings land him in a spot of legal bother, he has the benefit of in-house lawyers and external counsel all paid for by Rupert Murdoch.

The existence of Section 18C of the Racial Discrimination Act hasn't stopped Bolt from vilifying Africans, refugees, Muslims, Lebanese and other groups. Nor has it stopped the moderators of his blogs from publishing violent, paranoid, racist and even genocidal remarks.

Yet now, for the benefit of Bolt and his employers, Brandis is prepared to abandon his own principles, allowing Bolt to use his substantial power to trample on the weak and vilify minorities.

On May 7 this year, Brandis asked an audience at Gerard Henderson's Sydney Institute: ''Who defends freedom of speech in Australia today? Is it really to be left to a few conservative commentators like Andrew Bolt and Janet Albrechtsen; a couple of think tanks like the Sydney Institute and the Institute of Public Affairs; and the Liberal Party?''

Perhaps a better question to ask would have been: Why should an allegedly conservative government introduce revolutionary legal measures to protect the ''right'' of powerful columnists and shock jocks to abuse their freedom of speech to vilify others?

Sadly, this is nothing new. Readers may recall the adverse 2007 report of the Australian Communications and Media Authority about Alan Jones. ACMA's 80-page report had criticised Jones' broadcasts in the days leading up to the 2005 Cronulla riots.

What was the Coalition government's response? Then-communications minister Helen Coonan effectively threatened to gag the independent watchdog she appointed. Coonan, a former barrister like Brandis, said: ''Alan Jones has made an indelible mark on broadcasting during his long and outstanding career and I encourage the industry to address any concerns that they might have with the current code with a review to ensure it best reflects community standards.''

So if your buddies in the media fall foul of the law, no worries. Just change the law.

It doesn't sound like responsible, let alone conservative or liberal, government to me.
  • Irfan Yusuf is a lawyer, author and former Liberal candidate. First published in the Canberra Times on 18 November 2013.

Friday, November 08, 2013

CRIKEY: Should freedom of speech extend to God? A blasphemous debate

Federal Attorney-General George Brandis SC wants to amend section 18C of the Racial Discrimination Act to make it harder for people to make a legal complaint about race hate speech. The provision was introduced in 1996 during the last days of Paul Keating and with the full support of then-opposition leader John Howard.

When in opposition and during a speech to the Sydney Institute on May 7, Brandis proclaimed: “Who defends freedom of speech in Australia today? Is it really to be left to a few conservative commentators like Andrew Bolt and Janet Albrechtsen; a couple of think tanks like the Sydney Institute and the Institute of Public Affairs; and the Liberal Party?”

But at an IQ2 debate in Sydney last night, St James Ethics Centre executive director Simon Longstaff reminded us of another area of free speech that needs protection: insulting and lampooning religion and religious figures is still a criminal offence in most Australian states and territories. Laws allowing prosecution for blasphemy still exist in 21st century Australia, though under the common law such laws only protect the sentiments of Christians.

True, like the laws used to prosecute Andrew Bolt, blasphemy laws are hardly ever used. You’d think that the mere possibility of blasphemy laws being enforceable would be something for Brandis to immediately address. But then that would take away the chance for Tony Abbott’s favourite priest to seek injunctions against art galleries.

Longstaff chaired a debate entitled “God and his prophets (or his prophets for the less devout) should be protected from insult”. Malaysian Opposition Leader and former deputy PM Anwar Ibrahim was supposed to speak in favour of the motion, but he had to pull out at the last minute after prosecutors decided to appeal the quashing of his conviction under Malaysia’s medieval sodomy laws.

Julian Burnside QC was a last-minute replacement for Anwar. Joining him on the affirmative team was Uthman Badar, a PhD student in economics from the University of Western Sydney and a man whose freedom of speech our erstwhile government wants to take away by banning Hizb ut-Tahrir (“the Party of Liberation”), the organisation Badar represents in Australia. On the negative side was engineer Yasmin Abdel Magied and the awesome Thomas Keneally.

Believe it or not, the affirmative were not arguing that blasphemy should be an offence. They weren’t interested in using the law. Their focus was on what should be socially acceptable. Badar argued the starting point of any discussion on this topic should not be free speech — which he claimed was not a universal value but rather an ideological fetish often used by Western pseudo-liberals to brandish those regarded as inferior. Instead, the starting point should be civility. Unless you are rude and depraved, you don’t go out of your way to insult others. All too often freedom of speech is not about freedom of expression but rather the freedom of the powerful to offend others and incite discord.

Badar argued that, in Australia, Jesus is fair game but not the Anzacs. When you insult someone by attacking things they hold dear, you aren’t just screwing social cohesion; you’re also making a fool of yourself by projecting your own insecurities. Rupert Murdoch must be paying Bolt top dollar to go through all that.

Badar’s argument appeared sound enough, but it missed the point. The topic was about protecting G/god and H/his P/prophets. Yasmin Abdel Maguid pounced on this weakness by asking how pathetic creatures like us could protect so mighty and perfect a creator. And she argued that how you respond to an insult is really up to you. Free speech and religion must never be seen as mutually exclusive. None of the prophets (including Muhammad) insisted on protection from insult.

Burnside cited one of his law lecturers: “Your freedom to swing your fist stops at my nose.” My humble criminal law lecturer at Macquarie Law School would have argued that punching someone in the nose was not just a matter of offence. Burnside also spoke about anonymous letters he received which offended him, even though they were directed at Muslims. The same letter writer would claim Muslim extremists supported the ALP.

In response, Keneally argued that one man’s criticism is another man’s insult. OK, I admit there was more to the arguments of both Burnside and Keneally than that. They both argued that Muslims and other minorities needed protection from collective insults. But I wondered whether they were both underestimating the ability of minorities to form alliances and take the fight to the bigots. Or maybe I’m being too optimistic.

Plus I have to wonder what is more offensive — a 12-minute amateurish YouTube clip, or Murdoch claiming Muslims have lower intelligence because they marry their cousins? And should I be offended? Or should I just laugh it off as the idiocy of one businessman and not reflective of the editorial line of his powerful newspapers?

Around 80% of the audience supported the negative argument. I’m not sure how God voted, but then I couldn’t see Him anywhere amongst the crowd.