The following opinion pieces have been published by the President and Commissioners. Reproduction of the opinion pieces must include reference to where the opinion piece was originally published.

Freedom of speech should not trump the right to safety

Author: Dr Helen Szoke, Race Discrimination Commissioner at the Australian Human Rights Commission

Published in The Punch, Wednesday 29 August 2012

Many people will be familiar with the recent “Aboriginal memes” page on a popular social media site, in which images of Aboriginal people were published with highly derogatory captions. 

At the Race Discrimination Commission we heard from many outraged Australians who found the images appalling and who recognised the harm and the hurt they caused a group of people on the basis of their race.

A question I have been asked in my capacity as Commissioner is ‘where do you draw the line’ and make such behaviour unlawful, as opposed to simply treating it as in extremely poor taste?

The Racial Discrimination Act 1975 makes unlawful public comments that cause offence, insult, threat and intimidation based on race. The provisions were carefully drafted to balance the right to freedom of expression and the protection of individuals and groups from harassment and fear because of their race.

Most human rights are not absolute. They involve a fine balancing act of the rights and freedoms of different people. The general rule of thumb is that one person’s rights and freedoms should not infringe on the rights and freedoms of others.

This is particularly so in relation to freedom of speech. My right to freedom of speech should not extend to racial hatred.

The Racial Discrimination Act includes a number of exemptions, such as in relation to media reporting, to ensure that the balancing act is done appropriately. So if what is published by media is a fair and accurate report in the public interest, or comment made reasonably and in good faith as a genuine belief held by the person making it, it will not be unlawful under the Act.

There are many other limitations on freedom of speech that exist where words cause harm: defamation, copyright, obscenity, censorship, contempt of court and consumer protection to name a few. We rarely question the importance of providing for these limitations.

And yet when the provisions of the Act are used to prohibit public expression that constitutes racial hatred, there is a debate about whether these provisions are justified.

What is missing in this debate is an acknowledgement of how the provisions actually work in practice and the important role they play.

I know, from the number and tenor of the complaints received by the Commission, that those who make use of the protections afforded by section 18C of the Racial Discrimination Act do so to help them feel safer and more secure as they go about their daily lives.

Increasingly, these complaints involve what is published online – cyber-racism. I am often made aware of websites on which members of racial and ethnic communities are regularly abused, threatened and denigrated because of their race.

Consider, for example, the landmark case under the legislation of Jones v Toben. This case concerned material published on the internet which cast doubt on the occurrence of the Holocaust and the existence of homicidal gas chambers in Auschwitz, and implied that Jewish people who were offended by such denials were of limited intelligence or driven by financial gain.

The Australian Jewish community has the highest percentage of Holocaust survivors of any Jewish community in the world outside of Israel. The judge concluded that such material would make Jewish Australians feel treated contemptuously, disrespectfully and offensively.

This type of hate speech has no place in modern Australia. The use of the Racial Discrimination Act provisions to condemn its expression is perfectly reasonable.

I am all for a debate to make sure we have the balance right when human rights compete. But we should be mindful of the importance of protections from behaviour that creates a climate of fear, a climate in which discrimination can thrive, and a climate in which violence can take place.

We must also be mindful of the safeguard that we take away from the victims of this behaviour if we were to conclude that such protections are not important.

Dr Helen Szoke is Australia’s Race Discrimination Commissioner. This is an edited extract of Dr Szoke’s speech to the National Press Club at which she launches the Agenda for Racial Equality.