Asia Pacific Forum of National
Human Rights Institutions - Regional Workshop on National Human Rights
Institutions,
Human Rights Education, Media and Racism
Racial Vilification and the Limits of Free Expression
Address by Dr William Jonas AM,
Race Discrimination Commissioner and Aboriginal and Torres Strait Islander
Social Justice Commissioner,
Australian Human Rights and Equal Opportunity Commission
15 July 2002
One of the great challenges that we face as national human rights institutions is that we often perceived to be the arbiter of what is an appropriate standard of conduct in society. We are often seen as stifling people's freedoms by imposing 'political correctness' and deeming particular behavior to be unlawful, offensive or inappropriate.
Tension about this role is no more difficult that when it relates to the outlawing of hate speech or racial vilification. Balancing the right to free speech and freedom from intimidation and racial hatred is a difficult and complex role.
Attribution to us of such a weighty role as deciding community standards is not an accurate description of our role - here in Australia, for example, we operate within the legislative framework that our elected representatives have endorsed rather than establishing the standards ourselves. But nevertheless, our role is one of great importance and seriousness and one for which we often face much opposition or resistance.
To give an example, in the lead up to the World Conference Against Racism last year, HREOC undertook preparatory consultations with civil society which included a national summit and youth summit on racism, 26 regional consultations and focus groups across the country, as well as an internet bulletin board for discussion on racism issues and an issues paper for written submissions.
The records of our consultations were posted on our website and summarised in a publication titled "I want respect and equality": A Summary of Consultations with Civil Society on Racism in Australia. The purpose of the booklet was very much to reflect the broader Australian community's understanding and concerns about the state of racism in Australia.
One of the trends that came up throughout the consultation process was the role of the media in inciting racism and alternatively in combating it or challenging it through the reporting of issues. Many good examples were cited of initiatives by media to promote tolerance and understanding of different cultures, and to challenge race hate. But concerns were also expressed about the media's role in perpetuating racism and the need for a regulatory framework to ensure that media 'more accurately reflects Australia's demographic and social reality and thus reduce(s) the perpetration of negative stereotypes.'
On the issue of regulation, the booklet concluded that 'there were contrasting views in terms of either providing a more prescriptive legislative response to complaint handling in the media industry, or reinforcing the self-regulation regime by including community members on review panels and opening up the deliberations and process to public hearings'.
The booklet ultimately identified as a matter of broad consensus during the consultations the proposal that the Federal Minister for Communications require the development of a media code of conduct which positively promotes cultural diversity, and includes community representation and transparent complaint mechanisms and enforcement provisions.
That booklet was widely and I think mischievously misrepresented by some media as a report which put forward HREOC recommendations. The Daily Telegraph editorialised, under the title "Democratic freedoms threatened", accused the Commission of requiring a "sweeping media code of conduct to prevent racial prejudice" and damning us accordingly.
This small example illustrates the sensitivity of the environment in which we perform this most difficult of roles. And what I want to discuss in the next fifteen minutes, using the Australian legislative framework as an example, is to look at how we have gone about balancing rights to free speech with those of freedom from discrimination, racial hatred and intimidation.
Freedom of expression [1] can both enhance democracy and human rights - and impede the rights and freedoms of others. Racial vilification is a type of expression that is intended to offend, insult, humiliate or intimidate others because of their race.
Freedom of expression is, of course, a central tenet of democracy. It is one of the freedoms which define whether a country is democratic. For example, the freedom to criticise government or politicians enables open competition for elected office, and ensures government accountability. Totalitarianism crushes freedom of expression precisely because it promotes political dissent and competition. Because of the importance of this freedom to a healthy democracy, there is great scope for free expression on matters of government [2]
Furthermore, freedom of expression is of critical importance to those of us who work in the field of human rights. This freedom enables human rights defenders to reveal and critique corruption, injustice, inequality and oppression.
Yet freedom of expression is not always an instrument of liberty. Racial abuse, vilification and the dissemination of racist propaganda are forms of expression that violate the rights and freedoms of others. Racial vilification can take spoken or written form, and may also include images, which offend, insult, humiliate or intimidate others because of their race. Where these expressions are extreme, they can generate such fear as to prevent others from living or working in certain places, from taking up employment, travelling to work, and other activities that many take for granted. The psychological damage of racial abuse and vilification has also been captured by one writer, who described it as "spirit-murder". [3]
Racial abuse and vilification can also lead to more overt racism, such as discrimination, physical attacks and even racial homicide. [4] Racial prejudice is usually converted into some form of behaviour [5] and, as one writer put it, "Racist actions are cultivated by the acceptability of racist speech…". [6] Therefore, limiting racial abuse and vilification not only protects the victims from such behaviour. It can also prevent the escalation of racially motivated crime and safeguard the longer-term stability of society.
History repeatedly shows us that social conflict readily forms along the 'fault lines' of race, and racial abuse and vilification are the tremors that point to these potential shocks. September the eleventh illustrates how, in the after-shock of a crisis, particular racial groups can become the targets of aggression, even from their own fellow citizens. In Australia, Arabic communities reported an escalation of attacks - especially against women and girls - in the weeks following the September crisis.
For these and other reasons, the right to freedom of expression must be limited by the rights of others, and particularly the right to freedom from racial vilification and abuse. The Universal Declaration of Human Rights states that the rights and freedoms of the individual are limited by "the rights and freedoms of others" and the need to meet the just requirements of morality, public order and welfare.[7] In addition, the International Covenant on Civil and Political Rights, like the Declaration, states that freedom of expression can be limited by law where this is necessary to respect the rights or reputations of others, or for the protection of public order, and so on. [8] Therefore, international human rights instruments do not assert freedom of expression as an absolute right. Rather, this right must be limited by accepted legal exceptions, and particularly the rights of other individuals.
Of course, in reality, the right to freedom of expression is never absolute. In Australia, as in many other countries, many types of speech are against the law, such as threats of violence, sexual harassment, defamation, blackmail and so on. [9] What is a common element to all of these types of expression is the harm they can inflict upon those they are directed against. This harm necessitates the protection of the law. So we see that the rights of others place limits upon freedom of expression in a range of different contexts.
As many of you know, the International Convention on the Elimination of All Forms of Racial Discrimination obliges states to prohibit racial hatred, [10] incitement and propaganda. In addition, the International Covenant on Civil and Political Rights requires that incitements to racial discrimination, hostility or violence are prohibited by law. [11] Accordingly, the right to freedom from racial vilification is one of the accepted rights that can limit freedom of expression.
I will now consider how Australia tries to protect freedom of expression, while also protecting its citizens from racial abuse and vilification. In 1995, the Australian Commonwealth government enacted the Racial Hatred Act 1995 and this national legislation made racial vilification unlawful. Similar, and in some cases better, laws have also been enacted by the Australian state parliaments, but today we shall focus on the federal Racial Hatred Act.
In 1991 the Human Rights and Equal Opportunity Commission conducted a National Inquiry into Racist Violence. This Inquiry found that, while racial violence was not as serious in Australia as in many other countries, it still occurred at unacceptably high levels. In the same year, there was a Royal Commission into Aboriginal Deaths in Custody, and in 1992 the Australian Law Reform Commission released a report into Multiculturalism and the Law. Each of these three initiatives found that racial abuse existed in Australia, and recommended an extension of Commonwealth laws to prohibit racial vilification and abuse. Consequently, the federal Racial Hatred Act 1995 was enacted.
It is important to note that this Commonwealth legislation does not fully meet Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. [12] For example, Article 4 of the Convention requires the prohibition of organisations which incite racial discrimination, [13] and this obligation has not been enacted domestically. Physical violence and other serious offences are currently prohibited under Australian criminal law, however, it is argued that criminal legislation should be specifically tailored to the problem of racism. [14] Currently the civil remedies of the Racial Hatred Act are the only Commonwealth provisions specifically directed against racist behaviour. So, whist the Racial Hatred Act moves Australia closer to meeting our international obligations, it does not fully meet the standard required.
Let us now consider this law in more detail. Under the Racial Hatred Act it is an offence to insult, humiliate, offend or intimidate another person or group in public on the basis of their race. Such action must be done in public in order for the law to apply. This can include racist abuse yelled from one person's house to their neighbor's house, for example. On the other hand, a private action, for example, a conversation between two individuals, is not unlawful in Australia - even if the discussion is racist.
In order to protect freedom of expression, the legislation sets out certain circumstances in which the racial hatred laws will not apply, providing the person has acted reasonably and in good faith. Firstly, if the action is part of an artistic work it is not limited by the racial hatred law. For example, a play where racist attitudes are expressed by a character is not affected. Secondly, academic work and debates which are in the public interest are not limited by the racial hatred law. This permits a range of public policy issues to be debated such as multiculturalism, affirmative action for migrants and so on.
And finally, the media are given considerable scope within the third exception, which permits fair and accurate reports, and 'fair comment', on matters of public interest. This last exception enables the media to report on public issues, such as racial incitement or racially offensive conduct. It also allows editorial opinions and the like, providing they are done without malice.
It is important to note, however, that evidence must support the application of these exceptions. For example, in one Australian case, a Holocaust Revisionist website was found to contravene the Act, despite the respondent's claim that that Revisionism was part of genuine academic enquiry. No evidence was available to support this claim, and so the material on the website was found to contravene that Act, and the Commission ordered that it be removed.
You will note that, again, freedom of expression is given great scope in matters of public and political concern. There are many people, and I am one of them, who believe that the exceptions to the Racial Hatred Act are sometimes too wide to prevent racial injustice. Yet this is the balance that the Australian legislation has attempted to achieve between freedom of expression and protection against racial abuse and vilification.
As to the effects of the racial hatred laws in Australia, there is no evidence that these laws have diminished freedom of expression in the ways feared by opponents of the legislation. [15] Furthermore, it is unclear whether racial hatred laws have reduced racial prejudice, or have simply made it more unacceptable to express this prejudice. [16] Yet this does not defeat the principal achievement of the legislation, which has been to give the victims of racial vilification an avenue of redress for their injustice. [17]
In conclusion, Ladies and Gentlemen, I have affirmed today the importance of freedom of expression, particularly in the political arena, to both democracy and to human rights. I have argued that freedom of expression can, and should, be limited by the rights and freedoms of others, and particularly the right to live free from racial persecution. There is a need to continue to improve anit-racisim education in order to reduce the prejudice that fuels racial vilification. Nevertheless, racial hatred laws remain an important anti-racism strategy in our struggle against racial injustice.
1. The right to "freedom of expression" includes the "freedom to seek, receive and impart information and ideas of all kinds…either orally, in writing or in print, in the form of art, or through any other media…": International Covenant on Civil and Political Rights, Article 19(2).2. Sections 7 and 24 of the Commonwealth Constitution contain an implied protection to freedom of expression in this regard. See the so-called "free-speech cases": Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Theophanous v Herald & Weekly Times (1994) 182 CLR 104; Cunliffe v Commonwealth (1994) 182 CLR 272.
3. Patricia Williams, "Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law's Response to Racism" (1987) 42 University of Miami Law Review, 127 as cited in Luke McNamara, "The Merits of Racial Hatred Laws: Beyond Free Speech" in Griffith Law Review (1995), vol.4, No.1, p.50
4. Gordon Allport, The Nature of Prejudice, 1958. More recently, Luke McNamara, op.cit, p.42.
5. What McNamara calls 'pre-violent conduct' which perhaps distorts the violence involved in verbal abuse: Luke McNamara, ibid, p.42.
6. Brad Jessup, "Five Years on: A Critical Evaluation of the Racial Hatred Act 1995" in Deakin Law Review, Vol.6., No.1, 2001, p.93
7. Article 29(2) Universal Declaration of Human Rights.
8. ICCPR Article 19(3).
9. Fiona Kerr, "The Policy Implications of Enacting Legislation Prohibiting Racial Vilification", Australian Law Students' Association Academic Journal, 1998, p.61-69
10. ICERD Article 4. This must be done in a way that is consistent with a democratic, constitutional system of government. Specifically, the Convention states that due regard must be had to the Universal Declaration of Human Rights and Article 5 of the Race Convention.
11. Article 20 of the International Covenant on Civil and Political Rights requires any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence to be prohibited by law.
12. It is well known that Australia noted reservations to the International Convention on the Elimination of All Forms of Racial Discrimination (Article 4(a) and the International Covenant on Civil and Political Rights (Article 20), postponing the fulfillment of the obligation to prohibit racial hatred, incitement and propaganda.
13. Article 4(b)
14. Saku Akmeemana and Melinda Jones, "Fighting Racial Hatred" in Race Discrimination Commissioner, Racial Discrimination Act 1975: A Review, AGPS, Canberra, December 1995, p.139
15. Brad Jessup, op.cit, p.110; Luke McNamara, op.cit.
16. Brad Jessup, ibid, p.109
17. Luke McNamara and T Solomon, 'The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?' (1996) 18 Adelaide Law Review 259 as cited in Brad Jessup, op.cit, p.109
Last updated 19 September 2002
