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Why we need s18C

By Mariam, 3rd Year Law 

Writing this is probably the hardest thing I’ve had to do in a while. And it’s simply because I honestly don’t know where to start.

I don’t have a strong voice, I stutter when I’m nervous and I don’t like to make people uncomfortable.

One question I do get asked frequently when people see me (hello I’m quite hard to miss) is how I do it. I’m asked what it’s like to have to face the stares, the questions and the whispers for being so utterly visible and my automated answer has always been that I wouldn’t know from experience.

“It hasn’t happened to me”, I’d say confidently, “Maybe to some people I know but I honestly couldn’t tell you”.

I’m a notorious liar.

What I hadn’t come to realise, or better, what I couldn’t admit to myself is how I conditioned myself to please them.

When I was twelve, I refused to come into the city for two whole years simply to not to be looked at weirdly.

When I was thirteen, I refused to be around my parents for fear that they’d say something to embarrass me, or that they wouldn’t fit into the world I wanted to create for myself.

When I was fifteen, I slowly stopped wearing skirts, dresses or anything long so I make myself look more “normal”..

When I was f**king 19, I stopped writing “bomb” and “gun” in any context. I would stop mid sentence, rewrite and continue.

My immediate response to my actions was stupidity. “There’s something wrong with you, I don’t understand why you’d think like that” my mum would tell me after each of these phases.

But there wasn’t.

My youngest brother is twelve. Today he had to listen to Pauline call him a disease. Even though my dad reassured him that what she was saying was blasphemous and wrong, my brother is a mirror of me and the process will restart.

And this is why I’m upset, frustrated and disappointed.

On Tuesday, our Prime Minister, Malcolm Turnbull announced proposed changes to s18C of the Racial Discrimination Act. The changes will include replacing the current inclusions of “offend”, “insult”’, and “humiliate”,  with “harass”.. The only term that will remain will be intimidated. If this amendment passes the Senate, new powers will be able to terminate “trivial cases” and breaches as the amendments will also come with “a reasonable person” test.

 

“It inhibits free speech”

Before we EVEN begin this conversation, please refer to the laws of defamation, advertising and national security.

Restriction of free speech has been very well a part of our law since its conception to protect the right of individuals. So this argument is redundant and serves no purpose.

 

“We’re trying to protect cartoonists so they wouldn’t be hauled up and university students won’t be dragged through the Courts”

Here is where the issue in itself lies. Protection of public interest is always a flip of a coin. In this case, it isn’t protecting the rights of the people who have been victimised but the people in the wrong.

I understand and wholly respect the value of free speech but it shouldn’t be at the expense of others.

Free speech comes with responsibilities and it can be legitimately restricted. Governments have an obligation to prohibit hate speech and s18C afforded this protection.  Our government has obligations to implement protections against racial hatred under the International Covenant on Civil and Political Rights.

People imposing the restrictions need to demonstrate the need for them and they must be proportionate.

Before its introduction, there was little anyone could do in response to racial discrimination. If we take an examination of claims brought forward to court we can see that they don’t amount to a ‘substantively excessive number’ nor do they ‘clog’ our courts more so than they already are.  To exemplify this, only 20 cases have been brought forward on behalf of Aboriginal Australians since its introduction.

If we can also take a moment to examine these cases, we can see that notions of objectivity to what a reasonable person would be offended by have already been outlined in case law.  Everything that has been proposed for amendment hasn’t even been brought forward in a court and found contentious so the question is why?

Because the government is bloody great at hiding where the real issue lies.

 

“We’re trying to make the law clearer”

If we take a look at what has been proposed as to be the issue, in Turnbull’s own words, it’s in direct reference to how these matters are processed. A lot of talk has been around the administrative process itself in providing efficiency, clarity and procedural fairness. In order to fix this, shouldn’t we be more concerned about the Human Rights Commission Act itself?

But no, we’re more concerned about fixing something that doesn’t need to be fixed.

The law as it stands is quite clear. The section outlines an unlawful act rather than a criminal offence and monetary damages or an apology usually awarded to the persons or group being discriminated against.

The Courts have interpreted s18C and s18D to provide protection against “profound and serious” effects and not “mere slights”. It’s struck a clear balance between the freedom of speech and the freedom from racial vilification.

By proposing the removal of “insult, offend and intimidate” and their replacement with “harass” will further create confusion. Not only does it reduce the protection available against racial abuse, as suggested by MLN, but it also imports terms from the criminal law into the civil law.

The result?

IT DOESN’T FIX THE ISSUE ABOUT HOW IT’S PROCESSED FOR GOD’S SAKE IT MAKES IT WORSE.

So, if this does end up passing the senate and s18C is amended, it’ll give many people who already believe they have a free pass to offend protection to continue doing so.

The impact of this hateful rhetoric extends far. We might not face discrimination directly in our lives, but it doesn’t mean we aren’t affected by it at all. A lot of us have, whether it’s for our culture, how we look, for our sexuality or our gender.

We’re a nation that is fettered with hate speech that needs to be brought forward and addressed. We need to open the conversation and take action.

Law firms have come together to pledge to ensure they reach targets for cultural diversity. We’ve opened the conversation in our universities and collectives have stood, and continue to stand proudly against discrimination.

Our representatives need to do the same. We can’t keep being knocked back for the pleasure of a few conservatives sitting behind benches making decisions that impact the lives of millions. (FOR GOD’S SAKE CLIVE USE YOUR MEMES FOR THE BETTER GOOD M8)

So all in all, if the repeal is passed, it will spell huge disappointment for our nation. I don’t know and I can’t predict what the Senate will do because we do live in an era where Trump is President so let’s pray that it doesn’t go through. But even if it does, don’t forget your platform as a law student. We have a voice – a pretty loud one at that. I’m pretty sure if we can invest a fraction of the energy we put into our LawSoc Discussion Forum roasts into bringing this to the surface then we can make some noise.

No matter what happens, always remember that your voice is just as strong and more eloquent than One Nation’s. So use it. Use it and be proud of who you are no matter what walk of life you come from. Because it isn’t you that’s the problem, it’s them.

 

 

 

 

 

 

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