Protecting people from harm

By Hector Sharp in conversation with Mark McMillan | 01 May 14
On the 25 March Attorney General George Brandis proposed changes to the current Racial Discrimination Act 1974 (Cth) (the Act) in the form of the Racial Discrimination Amendment Bill, which proposes to amend sections 18C, B, D and E. The changes seek to “strengthen protections against racism while at the same time removing provisions which unreasonably limit freedom of speech.” According to Brandis these same provisions led to the unreasonable conviction of Herald Sun columnist Andrew Bolt in 2011 by the Federal Court for contravening section 18C. Mark McMillan, one of the successful plaintiffs in that case, joins Right Now to discuss the proposed changes to the Act.

Right Now: “In a free country people do have rights to say things that other people find offensive, insulting or bigoted.” How would you respond to this comment from Attorney-General George Brandis?

Mark McMillan: Yes we do have those rights but individual rights do not exist in a vacuum. We can say things that are offensive, we can say things that are bigoted but if you do there is a consequence. George Brandis failed to contextualise the comments as to how rights are enjoyed in Australia, not only enjoyed but what is the obligation on the state to make sure that rights are protected and anti-racial discrimination is a protection mechanism not a positive mechanism. By not explaining how rights function in Australia he has actually sent the wrong message. You might be able to say things but know that if you do say certain things that offend, insult and intimidate and humiliate others, there could be legal recourse to stop that.

The implementation of section 18 in 1995 came after numerous inquiries and reports during the early 90s on racial vilification. Do the current proposals have any grounding in similar research or is it purely based on the result in the Federal Court case; Eatock v Bolt and Herald & Weekly Times Pty Ltd?

I would say it is the latter because when you actually look at the evidence that led the Keating government to bring in section 18, there was a lot of research showing that racial abuse and racial vilification was rampant in Australia. It was of sufficient magnitude that the federal parliament thought that it needed to intervene to put racial vilification as the “suite” of racial hate type of speech and recognising the harm that that has done to people based on race, colour, national or ethnic origin and in a lot of instances now with religion. None of those statistics have actually gone away; in fact we have had since the implementation of [section 18] very little use of the Act  but I think that was its intention, which was to know that its there and it has had the deterrent effect. But we have had spikes where racial vilification and the harm that racial vilification causes has become quite public, I mean we only have to look at the Cronulla riots, and the response from the public sphere showing how racial intolerance manifests in racial vilification.

To be fair to the Government I don’t think they are actually basing this on anything other than a political response to “a mate” [Andrew Bolt]. It’s not based in research, it’s not based in law, its not based in any approach, other than, for me, [the Government] responding to a particular court ruling.

The latest Fairfax-Neilson Poll released on April 13th showed that 9 out of 10 Australians disagree with changing the Racial Discrimination Act. What can this tell us about Australia’s current attitude to racial discrimination?

I can tell you that the response I received after being part of “the case” as a matter of fact that the level of abuse, racial abuse and racial vilification [that] was targeted at me personally has escalated. Nobody would deny that there are elements of Australian society that think that they have a right to say things based on race but I think you have to draw a very clear between research and polls because polling in not research.  However there is research from the University of New South Wales showing that Australians are not racist, in fact when you look at the research it is suggesting that people have no appetite for racial discrimination in Australia. I think that the Government has pretty much missed the mark on every level, which reinforces my view that [changes to the Racial Discrimination Act] are not anything other than politics of appeasement.

The focus on section 18C and the lack of willingness to focus on section 18D [Exemptions to section 18C] is the biggest problem with the commentary on the proposed changes. Section 18D is the public interest defence, which is the free speech defence. [In the case] Justice Bromberg tried to put Bolt in[to] section 18D but because he was so wanting as a journalist, the context, the manner, the facts were so far removed from anything that could be deemed legal [under section 18D] he couldn’t “get there”. What section 18D currently provides is the freedom of speech defence and yet he just couldn’t “get in it”. I worry that people who are propagating this notion that section 18C is this sort of Trojan horse, I don’t think that a) They have read the case, b) don’t understand the way that the courts, since 1995 have dealt with public interest. A proper reading of these judgments including Justice Bromberg’s suggests that freedom of expression and particularly freedom of the press is so fundamental to Australia’s democracy. You can say what you like, but there is a threshold test, I cannot be just merely offended as a person, nor can it be just the group in question. That’s the problem here, that now we have a concept of racial superiority.

The proposed threshold test for vilification and intimidation is, “to be determined by the standards of an ordinary reasonable member of the Australian Community” and not by the standards of any particular group within Australia.

In this case it would not be whether the ordinary fair skinned Aboriginal person who would be offended by the slurs, it’s would a white person be? In the absence of anything else, what could we say is an ordinary, reasonable Australian other than a white, middle class Australian? If you are putting the qualifier on it, which is: the reasonable person by sheer definition of what they’ve said or what has been put in [section 18C] cannot be something that is not based on colour, race or national/ethnic origin, what does that leave you with? We are back to white.

If these provisions had been in place before the Andrew Bolt case, in your opinion would the Judge have found in the way that he did?

Well, I don’t know if we could go to that …

The reason Andrew Bolt was going “after” us was that we didn’t fit with his “white” perception of what an Aboriginal person is, which is dark skin, requires the benevolence of white people to make different opportunities in life. The way he constructed the argument is that the reasonable Australian would already suggest that we were not Aboriginal. His point was that the “reasonable Australian” aka Andrew Bolt could not identify his perceptions of Aboriginal people in us, and so he said that we were only opportunists, that we were only asserting Aboriginality for political career or economic gain. So no they wouldn’t be offended, instead the average white person or Andrew Bolt was offended that we even identified as Aboriginal.

Which begs the question, who is the proposed amendments protecting, if it’s protecting anyone at all?

To ask ‘‘who’’ the Act is protecting is missing the point. Its called the “Racial Discrimination Act” and it is about protecting people from discrimination. When we say what or who the proposed amendments are trying to protect, they’re actually not protecting anybody. It’s trying to say that society now deems that people, on the basis of their race, should not be afforded protection. Who does it protect? Nobody, it actually does the reverse, it defeats the spirit of anti-discrimination.

We were surprised to hear Human Rights Commissioner Tim Wilson say that law is not the solution to all of society’s ills? He believes that social conventions and education should be enough.

That’s not on any pragmatic level at all. Commonwealth and state legislators had to actually implement legislation, anti-discrimination did not come up in a vacuum; what social norms had evolved to was the point where the law making body was actually saying, “its not okay to do this.” Because if we left it to the “market” what would there be? Social norms cannot control the situation, the fact that we have had to intervene, when I say “we” I mean society through our legislators, to pass sex legislation shows that the market is not providing equality on a number of issues from sex or age to race. That kind of statement [from Wilson] just falls flat. Law should be a reflection of society’s will, our parliaments are not there to do whatever they like, they are there to represent the people.

Professor Gillian Triggs alluded to the fact that there is something particular about the Racial Discrimination Act [in] that Australia went to the effort of domesticating our international obligations. That’s not so when we have other conventions that deal specifically with freedom of speech, however the common law has intervened, and now through proposed statute that freedom of speech is a fundamental tenant of our democracy but in a framework, it does not exist independently of other rights.

Does anti-discrimination legislation such as section 18C give comfort to people?

Absolutely, when you look at the responses, not just of Aboriginal and Torres Strait Islander organisations but of every multicultural, ethnic group, they have all said; “Do not touch this, don’t even ‘water it down’, just don’t touch it,” because until you are in a position when you experience discrimination on the basis of that “otherness” you don’t know the comfort of actually having it there.

How would you interpret the terminology of the proposed changes to section 18D, “…in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”?

From a lawyer’s perspective it would seem to defeat the purpose of the whole Act. Because anything can be public, the terminology goes so wide and this is deliberate. This is not drafting error. But this misses the point, whether you are saying it in the boot of a car or on a soap box, it is still going to cause harm, it’s about protecting people from that harm, not about saying “you can’t do that.”

Turning now to your personal experience. How did you feel in 2011 when Justice Bromberg handed down his judgment against Andrew Bolt?

It was a pyrrhic victory if that’s what you want to call it.  Because it didn’t undo the harm, my intention in participating in [the case] was to make sure outsiders to Aboriginal and Torres Strait islander communities do not have the authority to question our identity.

Andrew Bolt, in his article said you were, “confused about your identity.” Are you?

No, not at all. That is the irony of that kind of comment, did Bolt really think that the people he went after, including me, who were all quite public figures, wouldn’t be sure about our identity, about our Aboriginality or where we are connected to the Aboriginal community?

We didn’t fit into his view of what identity was.

Bolt’s article argues that money that is earmarked for Aboriginal people in financial need or who are underprivileged should be reserved for Aboriginal people in those categories. Bolt implied that you are neither in financial need nor underprivileged. How would you respond to those arguments?

[Long Pause]

Ok let me just be clear, and I want to be quoted as saying, What the fuck?

Do you, not you but [people posing this argument] know my background?

When I say Aboriginality, take away the skin tone, Aboriginality will actually determine: social status, economic status usually and so the fact is that it doesn’t matter where you are geographically located, if you are an Aboriginal person, chances are you are already starting from a position of disadvantage.

I do not know where this concept of advantaged black people comes from…

None of the money set aside for overcoming Aboriginal disadvantage is predicated on having to put in a financial statement of your life to prove that you’re deserving of your Aboriginality more than somebody else. We have to be careful not to stereotype Aboriginal people [as] only exist[ing] as disadvantaged people that require the benevolence of white people to overcome their disadvantage.

People put our Aboriginality in a context of which we were always less. Now because I have a Fullbright Scholarship somehow I was never disadvantaged. When [people] say that or when these questions are asked, I think: what’s the starting point? At what point do you start being advantaged?

Bolt’s image of Aboriginal Scholarships is that they are handed out in the “sticks” to black Aboriginals. If I were black this would not be a question because there would already be an assumption that I am “needy”. It doesn’t matter where you live whether its Fitzroy or Fitzroy Crossing, chances are just by being Aboriginal you’re going to be marginalised [both] socially and economically and that was my existence.

Do you think the changes will be implemented in its current form?

No, I don’t think it will pass in its current form. My hope is that [the Government] will start to listen to the polls instead of powerful people like Andrew Bolt and Tim Wilson.

Thank you very much for joining Right Now.