Racial vilification bill: the real agenda

Editorial, News Weekly, 2 July 1994

The Keating Government's planned Racial Vilification  bill is one of the worst pieces of legislation ever put up in this country. Not only is it unnecessary for achieving its stated purpose —  which is in the words of the Prime Minister to "safeguard our record of tolerance" — it is also a direct threat to the rights of Australians to freely hold and express their own political opinions.

The bill has been widely condemned by the press. That is not necessarily a valid reason for opposing it — journalists are frequently as prejudiced in their own ways as any other interest group — but the arguments raised in relation to this particular piece of legislation are overwhelming.

The concept of incitement to racial violence or hatred —which the court wants to outlaw — is an extremely difficult one to enshrine in law. Unlike clear-cut  anti-social acts like destruction or defacement of property, or creating a public nuisance in the streets (all of which are already illegal, and rightly so), the concept of incitement relies "as much on intention as attitudes as on spoken words". In other words, what is to be outlawed under this legislation is certain kinds of ideas. This is a thought control bill.

Intimidation And Control

This is the real agenda of those who are promoting racial vilification legislation — to use the law to intimidate, and thus to control the expression of opinions with which they disagree. No credibility can be placed in the claim by supporters of this bill — because no evidence has been advanced for it — that there has been any recognisable increase in racial vilification of ethnic groups which might justify a new law. The Minister for Immigration and Ethnic Affairs, Senator  Bolkus, has made an unsupported assertion that the offences to be outlawed by the bill "are of such magnitude that the criminal sanction is the most appropriate one". But remarkably, he did not say what these offences were.

It is true that at the time of the Gulf War there was a brief spate of attacks on some Islamic communities in Australia. Nevertheless it is notable that it is not the Arab or Islamic communities which are strongest proponents of the racial vilification bill. Where Australian Arab community representatives have publicly addressed the issue of Mr Keating's bill, they have generally emphasised the importance of education, not criminal sanction, in overcoming racial prejudice. Mr A Elkotrib, chairman of the Australian-Arabic Brotherhood Charitable Association, went further: "We are concerned that the proposed legislation will limit the democratic right of freedom of speech that is accepted as the foundation of Australia's multicultural society."

According to former Labor Cabinet Minister Peter Walsh, impetus for the racial vilification bill comes from a "cell of social engineers in the Attorney-General's Department who, with a few other fringe groups, have been pushing for such legislation". He also says the bill is aimed at limiting what it is permissible to think, rather than what it is permissible to do. Criticising the Prime Minister for his support of the bill, he wrote:

"Both violence and incitement to violence, racial or otherwise, is already a crime — a fact acknowledged in Keating's May 28 speech by reference to long-term jail sentences handed down in Perth. He went, however, seemingly to deplore the fact that these people were prosecuted only for what they did, not for what they believed."

A further important argument advanced by Peter Walsh was that whatever little racial conflict or violence does exist in contemporary Australia, most of it is "between ethnic groups , rather than immigrant groups and the mainstream population, against which the social engineers are aiming this legislation." The conflict over Macedonia is a prime example of this point.

What's more, responsibility for some of this conflict can fairly be sheeted home to the very Government which is promoting racial vilifcation legislation. This was pointed out by Monash University political science lecturer Max Teichmann, in a further attack on the bill:

"The only real threat of racial violence here was created by the Federal Government when it played off the Greeks and Macedonians and then welshed on them", he said. "The Immigration Minister, Senator Nick Bolkus, was a key actor in that fiasco.

The main occasion for racist utterances here was when 50 000 Greeks charged down Bourke Street looking for Bolkus, with important sanctions in mind; only pausing occasionally to slag the Macedonians.

"Luckily, they ran into our Jeff [Victorian Premier, Mr Kenntt], who promised them sunshine right through winter and a mini-GP in every back yard. Otherwise the souvlaki could have hit the fan."

Max Teichmann said it was "either obtuse or insulting" to Australians to suggest that events which took place in Germany after 1930,and in parts of Europe since, could happen here. "To use the new lingo of Mark Leibler, it is on the edge of a racist slur."

It is significant that Mr Teichmann chose to mention Mr Leibler in this context, because it is Mr Leibler and other prominent representatives  of the Australian Jewish community who have been among the most important backers of the racial vilifcation bill. Nor is it coincidental that when Mr Keating chose recently to re-ignite debate on the bill, he did so at the conference of the Zionist Federation of Australia. Remarkably, the Liberal's Deputy Leader Peter Costello who was also in attendance at the conference, refrained from distancing his party from Mr Keating's bill. Thus it appears to have bipartisan political support.

Those who have cause to publicly disagree with these Jewish representatives — as this newspaper did in criticising certain aspects of the push for war crimes legislation a few years ago — have in the past found themselves unjustly castigated as "anti-Semitic". If those who are willing to toss around such labels without just cause are to be allowed to enshrine their own political agendas in Australian law, we are all in trouble.    

The art of political lying has received considerable public attention recently. But one form of it has been raised to a high point by the Federal Government virtually without notice. This is the legislative lie, whereby a piece of legislation is introduced into Parliament and pushed through as if it were of great urgency, while all the time the Government keeps on reassuring us that all the critics of the legislation are exaggerating or being paranoid and alarmist. If there should prove to be problems, why then, amendments will be introduced to deal with them.

Much the same argument has operated when new international conventions and treaties have come into force - there is nothing really to worry about. We are just doing what any good international citizen would do. The fact that very few other "good international citizens " in fact give international obligations the domestic force that we do, or use them to change the distribution of power laid down in a federal constitution, is airily dismissed. Indeed, most of the "good international citizens" who have happily signed international conventions have done so with not the slightest intention of implementing them domestically.

The racial hatred bill is the latest example of this. It was never given to the Opposition to read, and yet it is being told that there is really no threat to free speech in it. Why not then have discussed it with the Coalition in draft? Those critics of such legislation who cannot be categorised as being part of the Opposition are told that they are making far too much fuss, that the bill will really not prevent anyone from the free expression of ideas, especially if they bare sincerely held. Whoever thought that racists were insincere?

The Government really has no justification for legislating in this way, by promise and reassurance. Careful legislative drafting and thorough parliamentary and public examination of any proposed law are needed before anyone can say with any reasonable assuredness what its effects might or might not be.

Even then nobody can predict exactly how the courts will construe the legislation when it is in force, and what parts of it they might find to be valid or invalid on constitutional grounds. It may indeed emerge that an act of Parliament could turn out to have quite draconian implications whatever the bland reassurances given by the Government. And without proper examination of the law in draft, it is difficult to know exactly what the Government really does intend as well as what the actual effect of the law will be.

There is a certain cavalier evasiveness which has become the stock in trade of the Attorney-General, Michael Lavarch, and his colleagues responsible for various laws. Lavarch does not have the legal knowledge, training or experience  to know what most of the laws his department produces for him in fact mean. So we do not know, and no private-sector lawyer is allowed to know in good time, what the effect of any law is likely to be. It often takes months or years to work this out.

When the Government is caught out in its various grubby attempts to interfere with civil liberties it pretends  that it is quite happy about it.

Thus the Political Broadcasting Act was intended to muzzle those critics of the Government who felt that their views were not adequately reported by the media, and who therefore would buy advertising space or time to present their views as they wished. This was a cynical device intended to save the Labor Party money by preventing the presentation of the views of its non-party critics. it would also have greatly magnified  the powers of the media, especially TV, where Labor is notorious for bestowing favours on those who favour it. Fortunately, for free speech, the High Court decided that this was just not compatible with democracy.

What happened? The minister responsible immediately said that this was a wonderful thing, and pointed the way to a Bill of Rights, guaranteeing free speech and political liberties.

What happened to the Bill of Rights? A Human Rights (Sexual Conduct) Bill was introduced to prevent interference in the bedroom antics of Tasmanians. What did the rest of the community gain by way of extension and protection of their rights? Nothing at all.

The mealy-mouthed Lavarch began by saying that prosecutions were unlikely under his new racial hatred legislation. If so, why introduce it?

Yet he also conceded that somebody of American origin might have a case for compensation if he was called a "septic tank" in public. But he also claimed that the law would have  a mainly educative function, even while proposing that the accused might be faced with hearings by the Human Rights and Equal Opportunity Commission. He argued that the fact that there has been no prosecutions under the NSW act meant that there was  no evidence that free speech had been stifled.

Well, there have been few prosecutions under the Tasmanian law, which is supposed to have such a terrible impact on homosexuals in that State - none at all in recent years. In fact even full and graphic confessions by homosexuals have failed to evoke prosecution. By his own logic, therefore, the Attorney-General would have to admit that there was nothing to worry about in the Tasmanian law. It is just there to educate people.

Of course the urgency of action against the Tasmanian law did not spring from the dishonest determination of the UN Human Rights Committee, but from the hope of gaining the support of the gay and lesbian lobbies and fomenting dissention in the Coalition, particularly in the Liberal Party, where there is an active gay lobby. However, there is indeed a danger that a less civilised Tasmanian government of the future, or a government stirred into action by populist extremists, might misuse the law if it is on the statute book.

It is equally possible, indeed likely, that once a racial hatred law is on the Federal statute book it will be misused at the behest of some lobby group which has successfully stacked a few branches of the Labor Party and wants to silence views which it finds offensive, even if they are expressed moderately and in the course of ordinary debate.

The only guarantee which can be believed in the good faith concerning civil liberties of a party which has tried to censor political free speech, which has tried to introduce a national identity card, and which recently commissioned a report (of the committee on the centenary of Federation chaired by Joan Kirner) which blithely proposed the establishment of a complete photographic record of the whole population.

What wouldn't a future authoritarian government give for a database like that!

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