Check against delivery

Many of us will be familiar, one way or another, with the following scenario. A passenger on a train has launched into a racial tirade against another passenger. Some people in the carriage pause to watch the unfolding scene. Others avert their gaze. There is an air of nervous discomfort.

This genre of racism has become more prominent in recent years at least, media appear to report it with increasing frequency. But increasingly, it seems the case that people are standing up and speaking back against bigotry.

In April, for example, on a Sydney train a young woman witnessed a fellow passenger abusing a Muslim husband and wife. The young woman confronted the abuse, and uploaded footage of the incident on to social media.

A few weeks later, in May, on a train in Melbourne, a young man saw a group of tradesmen vilifying three women wearing Islamic headscarves. The young man intervened. He is assaulted, punched in the face. But when asked whether he would do it again, he said he would change only one thing: that he had said something sooner.

The stories of this young woman, Stacey Clark, and this young man, Jason Cias, are signs – signs that a generational change is happening on matters of race.

I begin with the stories of Stacey and Jason because this year we reflect on the changes in our race relations that have occurred over the generations. It was 40 years ago that the Commonwealth Parliament passed the Racial Discrimination Act, Australia’s first federal human rights legislation.

As we mark the Act’s fortieth anniversary, it seems only appropriate for us to ask: How far we have come on matters of race? How much farther do we have to go? What should be the role of the law in shaping our attitudes and conduct? And might it be time for our Constitution to prohibit, rather than permit, racial discrimination?

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As with so much of our democratic history, the story of the Racial Discrimination Act was not a revolutionary one. Unlike America, where a long civil rights struggle culminated in the Civil Rights Act – in a nation believing that it could fulfil a certain dream – the Racial Discrimination Act wasn’t the product of protest. Nor did it inspire grand visions of a society reversing injustice.

Thus, on the occasion of the Act coming into effect in 1975, Gough Whitlam conceded that the legislation lacked ‘the rhetorical grandeur’ of American documents. Even so, Whitlam hoped that it would ‘entrench new attitudes of tolerance and understanding in the hearts and minds of the people’. He hoped that it would have ‘compelling and lasting force’.

Few would dispute that it has had such force. The Racial Discrimination Act was a landmark achievement. Its effect was to be profound.

For the first time, Australians had an official statement that discrimination wasn’t to be tolerated. For the first time, people could seek a legal remedy for being wronged. For the first time, those who were denied a job or turned away from being served because of their race could say: ‘The law is on my side.’

It is true that the Racial Discrimination Act was enacted with bipartisan support from the Parliament. But this didn’t mean it enjoyed an easy birth – far from it. There was stiff resistance. One senator argued that the law would create ‘an official race relations industry with a staff of dedicated anti-racists’ that would be intent on persecuting white Australians. Others argued the law would ‘exacerbate the tensions which they were expressly designed to avoid’.

Such predictions haven’t come to pass. The Racial Discrimination Act has been an instrument not of persecution but of protection. And it has promoted racial harmony, rather than undermine it.

The Act has formed the legislative backbone of Australian multiculturalism. A multiculturalism admired around the world and endorsed by Australian society.

From time to time, some will decry multiculturalism’s failure. But there is little evidence for such failure. Ours is a society where the children of migrants on average outperform the children of native-born Australians in education and employment; a society where immigrants are eager, and are encouraged, to become citizens and claim their place as an equal among us. It speaks volumes that 85 percent of people believe that multiculturalism is good for the country. Contrary to what the likes of Dawn Fraser might say, most Australians do not tell migrants and their children to go back to where they came from.

Multicultural success hasn’t been the result of fortune, but of design.

This is because our multiculturalism has been based on the contract of citizenship. The contract says this. Every Australian should be able to feel relaxed and comfortable in their own skin, whatever its colour. But every Australian also has certain responsibilities. Our multiculturalism has always been based on civic expectations. As contained in the citizenship pledge taken by every new Australian, every member of our society should share our democratic beliefs, respect our liberties, abide by our laws. Be loyal to this country and its people.

There is, of course, ongoing debate about our current citizenship laws. The Federal Government a few weeks ago released a discussion paper about citizenship. The paper explores possible new powers to strip citizenship from people who engage in terrorism-related activities. Through the Australian Citizenship Amendment (Allegiance to Australia) Bill, the Federal Government is also proposing to expand the provisions for the automatic revocation of citizenship – namely, for dual citizens who act contrary to an allegiance to Australia.

The current Act already provides for the revocation of citizenship from dual nationals who serve in the armed forces of a country at war with Australia. It may be reasonable, in my view, for citizenship also to be revoked from dual citizens who engage in terrorism – so long as adequate due process safeguards are in place.

But we must be cautious about making any dramatic changes to our citizenship regime. Any change should be the subject of careful deliberation. If people are to be exiled or banished from the Australian community, it must only be because of the gravest conduct and in the most exceptional circumstances. It should not be done through the exercise of a power held by a Minister.

As a general principle, let us be clear about one thing. Citizenship is the keystone of our national unity, the formal statement of our national identity. While we must respond to threats to national security, we should be careful not to create division. We should be careful not to make people feel that their standing as citizens is vulnerable. We should remember that civic security strengthens our national security.

In more general terms, our debate about citizenship must also answer some fundamental questions about the meaning of allegiance. Can people still express dissent as part of their citizenship? When might patriotism be used to justify an intrusion into the rights of citizenship?

I ask these questions because I believe patriotic citizenship must leave room for debate and disagreement. There must be room for robust expressions of opinion. Because there will be times when patriotic citizenship demands that we be critical of our country or of government.

That oft-invoked phrase, ‘My country, right or wrong’, may come to mind. But it should be, ‘My country, right or wrong: if right, to be kept right; and if wrong, to be set right.’

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On matters of race, there remain many things to be set right. It is not good enough that close to one in five Australians say they have experienced racial or religious discrimination during the past 12 months. Prejudice and discrimination are blights on the lives of far too many Australians. They blight our neighbourhoods, our shopping centres, our workplaces – everyday places where people go about their everyday business.

Some groups encounter more racism than others. Aboriginal and Torres Strait Islander people experience it in the most systemic form: we see it in the alarming rise in incarceration rates; the marked inequalities in health, education and employment.

We know as well that racism particularly affects those from non-European backgrounds. Research shows that, when it comes to applying for a job, it might help to be called Wilson rather than Wang, or Morris rather than Mohammed. And whether it is in corporate boardrooms or on the floor of our parliaments, there is a relative absence of leaders from non-European backgrounds. Such lack of representation prompts us to ask: are there limits to our embrace of cultural diversity?

There are, as well, emerging threats to our social cohesion. I hold serious concerns about a deterioration of community harmony – a deterioration that warrants close attention from governments and leaders.

Anxieties about the threat of Islamist extremism have fed a rise in the harassment of Muslim and Arab Australians, many of whom feel under constant suspicion. There has been a marked increase in reports of anti-Semitism, part of a global resurgence in anti-Jewish feeling. There are signs of rising anti-Chinese sentiment, increasingly expressed in the realm of heated property markets in Sydney and Melbourne.

Organised racist movements, having been in retreat, appear to be revitalised. The internet has made it easy for fringe-dwellers to spread messages of hatred and division, and to find willing audiences lurking online.

Amid all this, the Racial Discrimination Act has only gained in importance. It stands to remind people that their country will protect them from discrimination and vilification. That their country will guarantee that freedom is not a privilege of the powerful, but something to be enjoyed by all.

This effect of the Act is both symbolic and practical. But it comes down to the educative nature of the legislation. Earlier this year, at a conference I convened in Sydney, Governor-General Sir Peter Cosgrove described the Act the following way: it was a ‘crucial enabler that speaks in tones of empowerment, not reprimand, one that seeks to educate and unite’.

Despite what some commentators say, you cannot be prosecuted or convicted under the Racial Discrimination Act. Complaints about racial discrimination and vilification are conciliated. Only when conciliation fails may a matter be taken to court.

Since 1975, there have been more than 6,000 complaints successfully conciliated under the Act. That’s more than 6,000 occasions when people have been able to talk through their conflict without resorting to the courts. Only very rarely do complaints in fact end up in litigation: for example, during the last financial year (2014-15), just 3 per cent of complaints concerning racial discrimination proceeded to a federal court.

As we all know, there has been extensive debate about the Racial Discrimination Act during the past 18 months. Like many, I welcomed the Federal Government’s decision not to proceed with repealing the Act’s racial vilification provisions under section 18C.

As things stand, the law strikes a balance between freedom of speech and freedom from racial vilification. Section 18C does make it unlawful to offend, insult, humiliate or intimidate another because of their race. But through section 18D, the Act protects anything that is done reasonably and in good faith that is artistic work, scientific inquiry, and fair comment and reporting.

Repealing section 18C would have sent a very dangerous signal. It would have given licence to prejudice and bigotry, to the idea that you can vilify others without any consequences; that you can have freedom without responsibility.

The many communities that spoke out in defence of the Act – Indigenous, Jewish, Muslim, Arab, Chinese, Vietnamese, Indian, Greek, Armenian, among many others – share these concerns. As do the vast majority of Australians. A Fairfax poll last year showed that 88 per cent of people believed that it should remain unlawful to offend, insult and humiliate others because of their race.

All this should serve as a reality check for all those who continue to advocate for a watering down of the Racial Discrimination Act. If we take a sober look at the debate about section 18C, we see this. Supporting the rights of bigots is a fringe minority cause rejected by the overwhelming majority of Australians. The overwhelming majority of Australians accept that the law should reflect our values of civility and tolerance. The overwhelming majority accept that we should hold people to account for racial vilification.

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To be sure, some libertarians argue that the best antidote for racist speech should be more speech. These voices say we should respond to racial vilification only through debate and criticism. We should welcome flushing out racism into the open, rather than let legislative prohibitions push it underground.

Now, one’s position matters a great deal when talking about race. Someone who has never experienced racial discrimination may benefit from being an observer seeing having hatred exposed for the first time. They may benefit from having for the first time to speak out against racism and articulate why it is unacceptable.

It’s rather different for those on the receiving end of racism. I’ve not yet encountered anyone who has experienced racism tell me that they are grateful for having bigotry or discrimination brought out into the open. No one has ever said to me that they are grateful for having been abused as a coon or a gook or a sandnigger. As for good speech overcoming bad speech, not everyone may have the power to speak back. One of the effects of racial vilification is precisely that it silences the speech of its targets.

In any case, the law can play a role in facilitating debate and discussion.

Recently I read about the story of Daryl Davis, an African-American musician. In 1983, after a gig in Maryland, a member of the audience offered to buy Davis a drink. The man was a member of the Ku Klux Klan. He told Davis that it was the first time he had ever spoken to a black man.

Davis befriended this member of the Klan. He decided to befriend many other Klan members as well. He invitied them to his gigs, invited them into his home. Davis believed in challenging the beliefs and practices of the Klu Klux Klan – not through confrontation or even argument, but by patiently listening to Klan members, by gently persuading them to change their ways.

In Davis’s case, it worked. Over some two decades, he managed to talk more than a dozen men to quit the Klu Klux Klan. Today, Davis has in his home a prized collection of old Klan wardrobes, given to him by reformed Klansmen.

For the libertarian, this may be regarded as proof we don’t need legislation in order to achieve social change. But it seems odd to rely on such an unusual example as Davis. There aren’t many African-Americans who would befriend Klansmen. I imagine there wouldn’t be many Asian- or Muslim Australians out there befriending neo-Nazis, either.

And to expect that there must be would involve an unjust division of labour. It would amount to saying that the responsibility of combating racism must ultimately lie with the victims of racism.

Which brings me back to the role and effect of legislation. We shouldn’t rely on zealous heroism as our only weapon against bigotry.

Having laws against racism in place allows for the kind of conversations that Davis had with his Klansmen friends to happen at the level of society. It ensures that the responsibility of social change becomes a collective one. It educates people en masse, rather than just one person at a time. It is foundational in educating our not just our personal sensibilities, but also our deepest civic sentiments.

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In fighting racism, we needn’t choose either a legislative response or one based in civil society. To be effective, we must have both.

This is why much of the work that I do at the Australian Human Rights Commission is centred on the National Anti-Racism Strategy. Since 2012, through the Strategy, we have educated people about how to prevent and reduce racism.

We have developed curricular material for teachers to use in history and physical education classes in primary schools and high schools. We have helped about 140 organisations to diagnose who well they are taking advantage of cultural diversity, through a cultural diversity workplace tool that was the first of its kind. Last month, we launched a new resource for local governments to guide them on how they can build social cohesion.

But civil society features prominently. Through the Racism. It Stops with Me campaign, we called upon organisations across the country to take a stand against prejudice, bigotry and discrimination. So far, more than 360 organisations have joined as supporters – spanning business, sport, local government, education and the non-for-profit sector.

Today, I am happy to announce details of the Second Phase of the National Anti-Racism Strategy. The Second Phase will begin this month, and will be based on two themes: (1) supporting diversity and inclusion; and (2) combating prejudice and discrimination. These themes reflect the need not only for us to respond to racism, but also our responsibility to cultivate social cohesion.

In supporting diversity and inclusion, the Strategy will work closely with those in corporate Australia who are embracing cultural diversity.

This afternoon, I welcome Westpac as a new supporter to the Racism. It Stops with Me campaign. In recent months, I have had the opportunity to work with CEO Brian Hartzer and Westpac’s leadership, for instance supporting their new focus on Asian leadership. Westpac is also joining the University of Sydney Business School and PwC as part of an expert working group I have convened to develop a blueprint for cultural diversity and leadership in corporate Australia.

In the area of sport, the Australian Human Rights Commission has renewed its partnership with the National Rugby League. We will be helping the NRL to develop its policies on social inclusion and cultural diversity.

And in our work combating prejudice and discrimination, we will continue to take the fight online. We will be working with Twitter to empower people to counter hate speech and prevent it from gaining a new digital foothold.

We are grateful to have the ongoing support of Adam Goodes as our Racism. It Stops with Me ambassador. In speaking up against racism, Adam has started many new conversations and challenged many old attitudes. It is in no small part due to Adam that we are increasingly seeing spectators at sporting matches report racial abuse to authorities. A cultural change is happening.

And the change is also happening outside sport. People in their everyday lives are standing up – as in the cases of people like Stacey Clark and Jason Cias, whom I mentioned at the start of my remarks.

I am delighted to have Stacey and Jason here today in our audience. People like Stacey and Jason embody the citizenship that we need in our society. As citizens, they were prepared to stand up for others – to stand up for decency, fairness and equality. It is men and women like them who should inspire all of us to respond with courage when confronted by racism. Their examples remind us what citizenship really is all about.

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Let me conclude on the note of patriotic citizenship. Any patriotism should be about improving one’s country. If you love your country, you should want to make it better.

On matters of race, for all of the successful incorporation of immigrants into Australian society – for all the triumph of multicultural nation-building – there has been one lingering shortcoming. Australian nationhood has always, as some have put it, been defined by a great silence about Indigenous people, ‘a cult of forgetfulness practised on a national scale’.

There is one obvious opportunity for us to do better: the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution. Such recognition would redress one of the moral deficiencies of the Constitution. In its current form, the document says nothing about Indigenous people as the first Australians. Furthermore, it contains two sections which permit discrimination on the ground of race.

These aspects of the Constitution reflect its history. They reflect a different time. A time when our first prime minister Edmund Barton could say that Australians didn’t believe that ‘the doctrine of the equality of man was really ever intended to include racial equality’.

But constitutions shouldn’t exist as historical artefacts – they should exist as living documents.

Today, we have an opportunity to right old wrongs. We have an opportunity to make a statement about racial equality.

And it is time that our Constitution is purged of ideas about racial superiority and the natural order of imperial power. It is time that we also guarantee that all Australians have a protection from racial discrimination. Because our Constitution should speak more truly in the spirit of our democracy – one committed to equal citizenship and to our rejection of racism.

ENDS