Freedom of speech is a right which throws up particular challenges as we seek to maintain, and indeed strengthen, social cohesion in contemporary Australia. It throws up those challenges because the balance between freedom of speech and other fundamental human rights needs always to be responsive to present circumstances.
An important present circumstance is that Australia is a strikingly racially diverse country. This has not always been the case; at the end of the Second World War well over 90 percent of the Australian population was of Anglo-Celtic stock. By 2011 46 percent of our population comprised first or second generation Australians with 27 percent of us being born overseas. Between 2007–2011 the leading country of birth for immigrants was India (13 percent) with the UK second (12 percent). Among settler arrivals in 2011–2012, immigrants from NZ and the UK ranked first and third; of the remaining seven top countries of origin, six were Asian and one was African.
Another relevant present circumstance is that in present day Australia, where swearing and even blasphemy is relatively common, the only actually taboo language left is probably that of racial insult; terms such as “yid”, “kike”, “boong”, “nigger” and “ape” to name a few.
So how should these present circumstances inform our thinking about freedom of speech?
Freedom of speech is a fundamental right critical to any liberal democracy. But, there are and always have been numerous exceptions to the right of freedom of speech. Freedom of speech is not an ideology. It is not the case that any argument against complete freedom of speech must necessarily be rejected by right-thinking people. Statements which imply “we’re for freedom of speech and you are for censorship and ideological tyranny” merely stigmatize counter arguments rather than meet them. We must be careful to allow free speech about free speech.
There will always be debate about what constitute reasonable limits on free speech. This means that the important questions about freedom of speech are questions about balance and limits; questions about whether any suggested limitation on freedom of speech constitutes an appropriate balance in a democracy between the rights of those who may wish to express themselves and the rights of those sought to be protected by the proposed limitation.
In considering whether it is reasonable to limit the freedom to engage in racial abuse it is important to pay particular attention to the impact of such abuse on those to whom it is directed. While the inclination of the rest of us might be to hate what is said but defend to the death the right to say it, the more critical issue is the impact of racial abuse on its targets and the damage done by it to the inclusive character of our society.
We should not be complacent about the inclusive character of our society. The Race Discrimination Commissioner in a recent speech revealed that in the year 2012–13 the Australian Human Rights Commission experienced a 59 percent increase in the number of complaints of racial discrimination received when compared with 2011–12.
The latest Mapping of Social Cohesion report from the Scanlon Foundation similarly reports a sharp rise in discrimination with 40 percent or more of new arrivals from Malaysia, India, Sri Lanka, Singapore and China having experienced discrimination because of their colour, race or religion.
The harm in racial abuse with which I believe we should be most concerned is its assault on inclusiveness and thus on our democracy. It undermines our democracy by its attack on the dignity and thus social standing in the broad Australian community of members of vulnerable minorities; its attack on their entitlement to justice and reputation, on their status as persons qualified to participate in ordinary social interaction on the basis of equality. It is ironic that by allowing those who wish to use such speech the freedom to do so, we may well allow those targeted by it to be intimidated into silence. An additional danger is that, feeling unable to speak as equal members of society, they might brood privately, perhaps with their friends, over possible retribution.
It is to be expected in a pluralistic society that there will be differences of view between those who incline to a more libertarian, and those who inclined to a more egalitarian, view of justice. Wide and respectful engagement by our political leaders on free speech is necessary but, at the end of the day, it seems to me that the views of members of those vulnerable racial minorities most likely to be the targets of race-based insult should be accorded very considerable weight. On 21 November 2013 a statement authorised by, among others, the Executive Council of Australian Jewry, the National Congress of Australia’s First Peoples, the Arab Council of Australia and the Chinese Australian Forum expressed strong opposition to any change to section 18C of the Race Discrimination Act. Those of us who belong to the privileged majority would, I suggest, be well advised to listen carefully to what those more vulnerable to racial abuse than we are have to say on this important topic.
The Hon Catherine Branson QC is a former President of the Australian Human Rights Commission and a former judge of the Federal Court of Australia. This article is based on the Inaugural Sylvia Walton Equity and Diversity Annual Public Lecture entitled “Can One Have Too Much of a Good Thing? Reflections on Freedom of Speech in a Diverse Society” delivered earlier this month. Catherine was recently appointed to the HRLC board.