Exposure Draft of Amendments to Racial Discrimination Act 1975 (Freedom of Speech)

 A Submission to the:

Attorney-General, Senator the Hon George Brandis QC

And

Human Rights Policy Branch
Attorney-General’s Department
3–5 National Circuit
BARTON ACT 2600

 By:

Murray McLeod-Boyle of Reformation Ministries;

PO Box 1316, Wangaratta, Victoria 3676.

Phone: 0357270502; 0427797229.

Email: Murray@Reformationministries.com.au

 On the Topic of:

Exposure Draft of Amendments to the Racial Discrimination Act 1975 (Freedom of Speech)

 Summary:

Whilst the repeal or positive modification of this flawed legislation is welcomed, the proposed changes must eradicate the philosophical faults that form the foundation of the present legislation. If it does not, then the whole process is an exercise in futility. Building something new upon a faulty foundation; completing renovations without rectifying problems in the foundation will amount to similar problems ‘down the road’.

Thus, it is our contention that not enough has been changed to bring about a superior piece of legislation that will allow it to serve and only serve the purpose for which it was supposedly intended.

1.0 Repeal.

At the outset, let me congratulate the Government on seeking to keep its promise to look at this faulty legislation. A full repeal would have been more in keeping with the promise given and such repeal is, indeed, in order. However, a revision that leads to positive change is most welcome.

Repeal and change are most necessary because these insidious pieces of legislation are having a detrimental impact upon our society. We have seen too many instances of these laws being used to bully and harass people, which is indeed the true irony given that these laws were intended to stop such behaviour.

2.0 Problems.

If the repeal or change is to be effective then the weaknesses and faults with the existing legislation must be identified and eradicated from any new legislation. To replace the existing legislation with that which simply expresses the same error in different language is an act of futility.

In this respect, the Exposure Draft Amendments to the Racial Discrimination Act 1975 fails to truly break free from its predecessor. Whilst the proposed legislation eliminates some of the perceived and actual problems, it does not eliminate them all. Thus, it may restrict abuses of this law, but it will not eradicate such abuses.

2.1 Subjectivity:

The essential problem with these modern laws is that they are all too often subjective. They are based in “feeling” rather than actuality. An innocent statement, an attempt at humour, and any such like, can all be labelled as an attack upon a person when such was never the case. The problem here is that we can never really know the true intent of a person’s comment. So why do we legislate in favour of the “feelings” of the person that believes they were aggrieved and not in favour of the person who “feels” that their comment was harmless?

In making laws and acting upon laws like the one before us, we are immediately in breach of those laws because our starting point is to discriminate against the intent of the person who spoke and rule in favour of the “feelings” supposedly hurt. Then, the speaker has an obligation placed upon him to prove the true intent of his comment. Yet, the question must be asked, “How can this be done objectively?” I mean to say, if such a machine exists, the politicians would be the first to ban its use!

Consequently, we must face this “elephant in the room”. Whose feelings are right? Do we follow the feelings of the speaker who believed in what he was saying? Do we believe the feelings of the hearer who felt that he was maligned? Do we lean toward the feelings of the judge deciding the matter? My point is simple. Law has never existed on subjectivity and feelings until a few decades ago. A police officer or plaintiff cannot stand in court and say, “I feel that this person is guilty of …!” They cannot claim that it is their heartfelt belief that, “So and so did …!” No. They must furnish proof (fact) of their claim. Thus, we come full circle. Who is the final arbiter in regard to the subjective?

2.2 Truth:

The other false presupposition that undergirds this legislation is that truth is denied. This is all very Postmodern and “hip”, but, once again, it has no place in law. Should a person be convicted for speaking that which is true? Should a person be allowed to waltz through society and spread lies? In short, do we really believe that the ideal of “freedom of speech” was conceived of so as to allow liars and deceivers to go about their business untouched?

The point here is simple. Some races, as one example, have either character, behavioural, or genetic distinctions. Is it wrong to be able to state that as a fact? As an example, a personal example, I have been called “my fair-skinned brother” by a person of Islander descent. Could I in turn refer to him as “my dark-skinned brother” without fear of reprisal from some quarter? Should I, as an Australian, be deeply offended when the truths in regard to our beer drinking or our high water usage are published? I may not like these facts, but if they are facts and therefore truth, how can I object to them – even if my feelings are hurt?

Consequently, there should never be any legislation that stops the truth from being spoken. When such laws do exist, then we have fallen into tyranny and more than the “freedom of speech” will be lost.

This aspect cannot be overlooked or denied when the Government itself has affirmed the need to pursue truth, saying “Still, a “hurt feelings” test is impossible to comply with while maintaining the fearless pursuit of truth, which should be the hallmark of a society such as ours.”[1] Elsewhere, the Coalition has stated, “Speech that has to be inoffensive would be unerringly politically correct but it would not be free.”[2]

Consequently, if this is what the Coalition truly believes – and they should – why do we persist in upholding laws that deny veracity as a key component? Growing up with a Biblical worldview we were taught to always tell the truth. Scripture exalts the man who, “swears to his own hurt, and does not change” (Psalm 15:4).

In the final analyses, we have forced people to accept a culture in which lying and mistruths become the norm. We dress this up in terms of discrimination, but this façade does not alter the reality of that which is concealed. Biblically, if I truly love someone, I will tell them what they need to hear; not what they want to hear! Such truth may offend; it may hurt that person’s feelings, but those subjective reactions do not alter the fact that objective truth has been spoken. More importantly, those truths will, when taken on board, produce a better person and, in turn, produce a better society. Thus, by constraining people to lie about the reality of a situation, we are condemning persons and culture to exist at a lower level.

It is at this point that we encounter the real problem. We have shifted, as a Culture, from a Biblical worldview to a Postmodern worldview. This change is fundamentally a change from the objective to the subjective. It is the movement from command or ought to feeling. With the influence of psychology this has only intensified the subjective nature of our society with the consequence that subjective “feelings” are magnified and overemphasised. The “truth” of the matter is no longer considered. In fact, the whole concept of truth is attacked openly and it is forced into a subjective mould. Thus, we hear statements such as “that is your truth” or “that may be truth to you”.

This then brings us to the precipice. If truth is not objective, then truth does not and cannot exist. If truth does not exist, then there is no objective standard and all must, of necessity, be subjective. If all is subjective, then law and order cannot exist for there is no standard at all by which to judge any action or process. Therefore, if truth is denied, it is an exercise in absolute futility to make laws that speak to discrimination.

This then means that the Coalition must fulfil its obligation to uphold the concept of truth as objective and knowable. It equally means that it should not have any part in promulgating law that explicitly denies truth.

2.3 Reasonable:

The former points come together here when we discuss the proposed standard. What, pray tell, is an “ordinary reasonable member” of the Australian community? Now, I am happy that the old standard is to be removed; yet, as we saw above, there is no sense replacing a defective standard with an equally defective standard. What, then, is the real gain here? Yes, the judgement is moved further from the group claiming to be wronged and is thus a move toward the objective – and this is good. However, I ask again, “What is an ordinary reasonable member of the Australian community?” Who is going to make that determination?

As an example, I would consider that I am such. However, as a Bible believing Christian, there would be many who would argue that I should be precluded from such a definition. If we asked a chapter of the “Hell’s Angels” to define such a person, “What would they say?” Then, if we make any comment about their standing or lifestyle, we become guilty of these very laws because we are adjudged to have discriminated or to have cast aspersions about a particular group!

So, what is the standard? Who will judge? Who will be the final arbiter that clarifies these definitions for codification?

Scripture teaches us that, “Righteousness exalts a nation, but sin is a disgrace to any people” (Proverbs 14:34). Here is God’s discrimination. He tells us plainly that there are a set of beliefs and behaviours that are acceptable and a set that are not. How do we then pretend that all beliefs and behaviours amount to exactly the same thing?

This is where our society has become truly schizophrenic. We have laws saying that certain things are wrong. Those laws were derived from God’s revelation in the Bible. They were taught by God’s Son, Jesus Christ. They came down to us and formed the basis for our society. What is more, they served us very well. They differentiated for us between the behaviours that brought God’s blessing and those that saw us fall under His righteous judgement. Now, we throw out some of these laws; we keep some, and, like here, become hypocritical in regard to others.

Again, we ask, “If God is not allowed to be the umpire, who will be appointed; by whom, and on what authority?”

Furthermore, the wording points toward an individual and not a group. So, at what point do I cease to be identified as an individual and become identifiable with a group. As stated, I am a Christian. That makes me to be part of a very large group. Does this mean that Christians are to be considered unreasonable? Does this mean that I cannot be a reasonable individual because I belong to a wider group called Christian? Now we arrive at a really tricky spot. I am an individual, a Christian, but I also belong to another group called “Australians”!

3.0 Private.

One other concerning aspect of the current and proposed changes is that it does not directly apply itself to the individual in the “private” setting.

Whilst it has become common today to try and differentiate the “private” man from the “public” man, the simple reality is that such a demarcation is impossible. Scripture states, “For as he thinks within himself, so he is” (Proverbs 23:7). In other words, the public man may be restrained, but he is no different to the private man for the same heart governs both.

God’s command to both is:

… whatever is true, whatever is honorable, whatever is right, whatever is pure, whatever is lovely, whatever is of good repute, if there is any excellence and if anything worthy of praise, let your mind dwell on these things.(Philippians 4:8)

Hence, we should not be encouraging error in private and then seeking to control it in public. We should be training people in right behaviour and morals so that they act aright in every situation, whether or not they are being watched.

As it stands, Section 3 of this Act does not define the terms “private” or “group”. The Exposure Draft uses the term “private” but does not include some of the definitions of the current legislation. This lack of definition is a little disturbing. At any rate, our aim should be to teach people how to live moral lives, not to coerce them by force of law.[3]

So as to be clear, I am not arguing that laws should extend to the private. I am arguing that we should eradicate the false distinction between “private” and “public” and that instead of coercing by law, we should be teaching morals and ethics.

4. Contradiction.

Another legitimate concern is in regard to the limitations within this legislation; limitations that are not going to be addressed.

Section 18 F of the current legislation does not limit the States. The proposed legislation says, “This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.” Yet Section 8 of the Victorian law states, “A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.”

The proposed Federal law, aimed at truth, says that I can have a discussion in which the truths of the situation can be laid out for all to see. The Victorian law says that I cannot. Yes, it is to be admitted that the scope of these laws is slightly different. The reality, however, is that these laws cover much of the same ground and the proposed changes will introduce a blatant contradiction.

My position is that the Victorian law should also be repealed, however, that is irrelevant here, being outside the scope of this draft. So, the genuine question is, under whose jurisdiction will I fall? If these proposed changes are adopted, what will be the real implication for me? Will my lot improve in terms of freedom of speech or will I still be hamstrung by another set of legislation? Again, is this proposal an act of futility?

5.0 Public Discussion.

A further point of concern is that the exemptions are based on the criterion of “public discussion”. Again, this term is undefined. What is actually intended here? Does this only have relevance to an organised public debate or will it have relevance to things such as the case involving Andrew Bolt and statements made in his column?[4]

As a Christian, my concern revolves around what we term as “public worship”.  If worship is being conducted and someone enters the gathering and hears things that they deem as offensive, do these exemptions apply?

This is not a trivial matter. Given the political climate in our nation, it is of the utmost importance that the lines of demarcation be clear and distinct. Much of the trouble already experienced has arisen because of the lack of specificity. Again, if the proposal does not eradicate the dangers already present, then it is of little use.

6.0 Conclusion.

In the end, the simple reality is that whilst the proposed legislation is an improvement, it simply leans too heavily upon the faulty philosophic underpinnings of its predecessor. As such, it leaves the door to abuse open. As such, it is to that degree an exercise in futility.

The Coalition, cited in this document, has made public comment in regard to the reality and necessity of truth being allowed into the public square. Similarly, they have acknowledged the fact that Political Correctness is an enemy of “free speech”. This begs the question as to why both of these propositions are explicitly absent from the proposed legislation. Writing these propositions into this legislation would give a firm context, which would forever illustrate the intent and context of the law making abuse near nigh impossible.

Therefore, whilst the Coalition is to be applauded for this attempt, the reality is that a much more sincere and genuine attempt is required, if it is to truly honour its promise and the intent on which it made that promise – namely the recognition of truth and the limitation of the destructive nature of Political Correctness.

With this said, I would urge the Coalition to further refine this proposal so that the legislation is never able to be used to bully and harass; so that freedom of speech is not undermined, so that truth is recognised, and so that this nation may be improved by no longer having the fear of tyranny hang above its head akin to the Sword of Damocles.