Submission to the 2016 Parliamentary Joint Committee on Human Rights
1 December 2016
This submission deals with the issue of human rights and in particular focuses on the Racial Discrimination Act 1975, Section 18. It examines the role of language in terms of layers, spanning grammar and syntax, semantics, and semiotics. It continues with the problem of detail vs generality and how this applies to the law. A general set of rules is suggested to overcome the potential clash between too much detail and general circumstances. In conclusion the submission advocates the abolition of the Racial Discrimination Act since any pertinent problems are already taken care of, thus preserving the practicality of the law in general.
Debates about the law, its nature and purpose, are arguably as old as law itself. Since the law is essentially an administrative instrument that features a set of rules, their implementation and their subsequent effects on society's members, the ground is prepared for controversies spanning all three aspects.
In ancient Greece Socrates debated the issue with Euthyphro, a seer and expert on religion . In this case the subject was 'piety', and Socrates argued that when it comes to measurable things such as the size of two numbers or the size of an object there can hardly be a dispute since a settlement can be reached very quickly. On the other hand, a concept such as 'piety' or 'honour' is subject to one's interpretation and therefore can be right or wrong, or pious or impious at the same time.
A controversy is less likely to occur if there is a commonly accessible standard such as a unit of length, it is more likely if a measure is under the influence of commonly held opinions, where even the word 'common' can be disputed should representative population numbers be taken into account. The relationship can be expressed in terms of abstraction: the more abstract the concept, the more varied the set of bases from which an interpretation emerges.
Controversy works both ways: it creates dissension within society in relation to a rule, and it also creates concern within the governing authority about how the rule is being observed. Foucault sees a parallel between the proliferation of agencies, their administrative domains and their respective laws, and the increase in the number of punishments laying the groundwork for today's prisons in 18th century France . Complexity accompanies abstraction and vice versa.
In Australia the nation's Law Reform Commission (ALRC) deals with the question of freedom and its potential encroachment by the law in its 2015 Report 129 . Speech per se involves the process of abstraction from an observed event leading to a form of conceptualisation and further comments. The more complex the society, the greater the number of sources of comments and hence potential discontent. Not surprisingly, the freedom to engage in this process represents a significant topic in legal discourse as well as arguments in wider society.
In the above report Professor Adrienne Stone questions whether a single "theory" or "set of values" can be applied given the "sheer complexity of the problems posed by a guarantee of freedom of expression" . Yet the report also mentions "long recognised" limitations to free speech such as obscenity and blasphemy .
On the other hand, referring to the First Amendment to the United States Constitution, the report presents a case where the US Supreme Court declared debate on public issues should be "uninhibited" and "robust" which "may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials" .
Clearly, despite considerable efforts at clarification, neither legal professionals nor the general public have managed to arrive at a satisfactory standard.
Since the current invitation extended by the Parliamentary Joint Committee on Human Rights (PJCHR) lists the Racial Discrimination Act 1975 and particularly Section 18 as one of its terms of reference, this submission deals with the Act in terms of conceptual layers of language beginning with grammar and syntax (ie, structure) and moving on to semantics (sense and meaning) and semiotics (symbols and their interpretation). It concludes with an observation on the consequence of a priori detail vs generality and a suggestion for overcoming the problem.
2. General observations
An action is a crime if the law has defined it as such. Every law carries a cost, and so does crime. For society's ledger to remain in the black, the overall costs of establishing, implementing and following through with a law's tenets would have to be less than the costs incurred by crime and its consequences, provided the crime does in fact undermine the efficiency of society.
Should the rewards from crime be so high that getting caught and sentenced pales into insignificance, the law has not achieved its purpose. While the total equation may be bolstered by those law breakers who for some reason do not benefit as much as some others and therefore are more affected by a law's threatening aspect, in the end the costs still matter. They do influence the budget bottom line of governments.
The rewards from crime may not necessarily be of the monetary and/or material kind. Answering to some ideal can be more important than one's personal well-being, especially if there is a law which is antagonistic to that ideal. In such cases the above equation becomes meaningless; while costs are still incurred by society, transgressing the law could be the reward itself, and the overall costs are entirely negative. The greater the number of rules which derive from ideology and which therefore are not concerned with the effective running of human activity systems, the greater the costs to society. Not only will those costs not be recouped, the subsequent dissonance usually requires more and more rules, all of which have the same deleterious effect. This would be the main reason why dictatorships do not last; authoritarian regimes run their society and eventually themselves into the ground.
It matters therefore whether the law addresses a need, constitutes a preventative measure, and adds to a society's overall efficiency.
3.1 Grammar and syntax
In speech (including written expression) grammar and syntax define its structure. The structure needs to be commonly recognised in order to ensure an equal degree of understanding by anyone reading this or that sentence.
That may seem trivial were it not for occasions where the structure, however well formed at that level, lends itself to ambiguity if the reader is not supplied with further references from which to deduce its intended meaning. In such a case the reader's interpretation is open to references beyond the range at hand, be they of a personal nature or coming from other conceptualisations, ideologies even.
Section 18C of the Racial Discrimination Act 1975 (RDA) contains such a passage. Graham Perret, Deputy Chair of the PJCHR, informs us that under Section 18C a breach occurs if someone feels offended, insulted, humiliated or intimidated. He writes, "The words, 'offend, insult, humiliate or intimidate' in 18C are not determined individually but instead are treated as one offence. There is only one test to determine whether 18C has been breached and that includes all of the words together" . The actual wording in the Act is, "..the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people.." .
The problem stems from the number of interpretations possible in sentences featuring the word 'or' in contrast to 'and'.
Consider the sentence "My car should be red or blue". The commonly understood meaning is that I prefer a car which is either red or blue, in other words I am satisfied with a single car but it should be of two possible types. On the other hand, the sentence "My car is red and blue" is usually understood to mean that I have one car and it has two colours, red and blue.
These common interpretations lead to an ambiguity in 18C. If 'or' means 'this or that with either one being possible' then the breach does not involve "all the words together" according to Perret but needs only one of those listed; otherwise the sentence would be "offend, insult, humiliate and intimidate". The common meaning involving 'or' is underlined by the following words "person or a group of people" (the italics in the above are mine). Since obviously a single person is not a group and vice versa, to be consistent the same meaning should be attached to the word 'or' in the previous phrase. Hence in terms of grammar and syntax the Act defines as a breach any sentiment covering offence, insult, humiliation and/or intimidation. Any one of those constitutes a breach of the Act. Indeed, its further subsections are consistent with the common meaning of 'or' as described above.
A further common use of both words is in internet search phrases. Searching for "red and green and blue" produces results where all these words occur, whereas the phrase "red or green or blue" delivers results containing any or all of those words.
The meaning of a text is defined by the words, and the words have acquired their meaning through ongoing usage. Meanings can and do change, or can be lost altogether over time. Ozwords, a publication from the Australian National Dictionary Centre, regularly features many examples (eg, 'gnarly', 'metallician', 'dog bagger' ).
A contemporary shift of meaning relates to the difference in context.
On a more trivial level, to say to someone fixing some plumbing, "Everything you know is about electrics" could be interpreted as a form of insult, yet said to an electrician working on some wiring would be quite the opposite.
The context circumscribed by the RDA involves matters of race (as per its very label), and by its further definitions the possible details derived from an interpretation of what constitutes racial characteristics.
The word 'race' is ambiguous in itself. If the definition is based on genetic testing the sheer variety of tests as well as their historic delineations point to the problematic accuracy in the derived result . Yet equally the evident existence of people around the world does fall into broad patterns of appearance as well as behaviour which in turn define their respective societies.
Unfortunately, the word 'racism' as a corollary to the Act's purpose has suffered from misinterpretation over the years. It is essentially a form of presumption, but the applied meaning is often quite the opposite. To say, "This person is of race X and therefore must be Y" is presumptuous, hence racist. To say, "This person is Y and happens to be of race X" is not, especially if both, X and Y, can be confirmed. It is the latter usage which increasingly has attracted the label 'racist'.
Various societies around the world produce various outcomes, the aggregate results of their respective values, priorities, rules, and accomplishments. The differences are clearly visible. Should the overall societal characteristics be combined with a - however broad - definition of race, the interpretation of bias by someone in relation to such a statement can lead to the kind of scenarios the Act tries to prevent in the first place.
The phraseology employed in legal documents may appear lengthy and cumbersome, but it serves the purpose of explicitly defining a set of circumstances such that anyone, in any situation, can use its terms should they be found applicable. The applicability test itself is made possible by the wording.
Given the widening scope of definitions regarding race created by science and the ever more complex global demographics, a legally precise definition of 'race' is just about impossible. For example, if one considers a 'European' to be of a different race than someone from the Middle East, how would that apply to a member of Iraqi society? The SBS World Guide lists Arabs, Kurds, Persians and Turks as part of the country's ethnic composition . Could a Kurd complain about racism coming from an Arab, a Turk from a Persian, or could it be feasible for an Iraqi to describe a Kurd as racist? Australia contains members of all those groups. And furthermore, when the label of 'race' is wrongly yet persistently applied to the Islamic religion, and a vexatious complainant uses the Act to sue anyone making critical comments about Islam, the problematic name itself of the Act comes to the fore.
Closer to home the problems with racial identification have been a continual source of contention when it comes to indigenous people and issues such as elections, welfare and specific government policies, as outlined in "Defining Aboriginality in Australia" .
As words have their meaning, such meaning can be delineated in turn under the auspices of semiotics. Entertaining examples can be found in Umberto Eco's books such as "The Name Of The Rose" . Eco was a semiotician .
Words are symbols and therefore subject to interpretation. As the variety of traffic signals around the world demonstrates, they are useful yet need to be commonly understood for what they stand for. If they are not commonly understood, not only do the symbols become meaningless, they can become counterproductive.
The variety of cultures with their own interpretations of values and morals, some going back centuries, produces the equivalent in the meanings of words defining those very same values and morals.
When the Act seeks to delimit its applicability to situations which are "reasonably likely, in all the circumstances" then that definition is a contradiction in itself. What is "reasonably likely" may be different for someone in France compared to Australia, let alone for an Italian-Australian compared to a newly arrived Somali. "In all circumstances" comprises the range of situations which are the very reason for possible differences. The two expressions cannot sit side by side because one eliminates the other.
If the phraseology of a legal document is meant to provide an explicitly defined set of circumstances applicable to any citizen, it cannot contain words, ie symbols, which unseat the document's definition.
All the words in the Act, 'offend', 'insult', 'humiliate', and 'intimidate', are dependent on a specific form of interpretation based on the innate conceptualisation that has emerged in this or that culture over generations. While there would be overlaps (there is a kind of human experience shared by all), the differences multiply the conditions in which the mutual relationship has become the trigger for the Act. The result is a potential openendedness where perceived negatives become the prompt for costly administrative and legal processes which by their very nature can never satisfy all.
There are two alternatives. Either a population comprises only members who can be expected to adhere to one set of meanings and no other (a truly homogenous society), or any law which feeds on a variety of sometimes mutually exclusive meanings is abolished altogether. Which alternative is more feasible in contemporary Australia should be obvious.
4. Detail vs generality
Human activity systems are non-linear systems since they feature mutually interactive members who produce outcomes based on their respective qualities via an ongoing feedback process. Any biological system is non-linear, and society is a human activity system. Outcome-producing actions are responded to and become the source of further actions.
It matters therefore whether action X precedes action Y or vice versa. Since actions can be performed by individuals or groups, they can contain sometimes more, sometimes less detail, and the result is reflective of such a degree of detail.
For example, a town may decide to establish a park, or it may decide to create a traffic hub. Arguably the former contains less detail, the latter features more. The results include the effect a park has on the surrounding residents, and they include the effects coming from cars, taxis, buses, trains, all converging on a particular location and reaching into neighbouring suburbs in terms of generated traffic volumes. Note that a traffic hub will interfere with already established infrastructure if the latter's capacity has been underestimated in relation to the newcomer. Good town planning takes care of such eventualities.
The law, while more abstract, nevertheless follows similar principles. If the detail of a statute is such that already existing rules are undermined, or circumvented, or simply rendered useless, then, assuming the law is meant to be obeyed, it will lead to circumstances that interfere with the harmonious running of society.
For example, if a type of business is declared legal which requires a manufacturing process that needs ten hours of operation, then establishing another law which makes it illegal to work for more than eight hours undermines the law related to businesses.
Similarly, if there is a law that allows the existence of criticism (from commentators to politicians to whistleblowers and so on), then creating another which disallows criticism under a wide range of circumstances has the potential to clash with the former, already established one.
Should a society incorporate conceptual elements of a diverse nature (such as a number of religions, historical precedents, and contemporary shifts in perspective), laws which contain enough detail to touch upon any of such notions are bound to become problematic sooner or later.
Just as in town planning where major projects need to be planned with due diligence directed towards future developments, so does the area of law require the same degree of diligence in terms of what rules refer to which detail in possible conceptualisations. Since conceptualisations of the religious, moral and personal kind are fluid and sometimes even mutually exclusive, the law cannot enter such realms if it wants to be implemented in practice.
There is an advantage therefore in having a set of general rules which at the very beginning define what can and what cannot be subject to further juridical frameworks.
Some nations have come up with a Bill of Rights, such as the one referred to in the ALRC's report, or involving "long recognised" limitations to free speech such as obscenity and blasphemy as observed by Professor Stone, mentioned earlier. Yet notions such as 'obscenity' and 'blasphemy' are the very concepts laws try to prevent by resorting to impractical limitations which effectively create the concepts to begin with.
What is needed is a Basic Charter, a preliminary framework defining the scope of any laws that may follow. To wit:
1. The ultimate goal of any nation must be the mastery of its environment, whether that be naturally given or artificially created.
For this to be successfully accomplished the intellectual character of the community has to be of a quality that supersedes the demands of present systems. Within the privileges of every fully functioning citizen is incorporated the fundamental duty to uphold this quality to his or her best ability and knowledge.
2. It is the inherent right of every human being to express freely any ideas or thoughts deemed necessary. The judgment of this necessity must always be the property of the originating person and must be defensible.
3. Every citizen, regardless of age and gender, has the right to happiness and the quest towards it. This includes education; medical care; erotic fulfillment; meaningful employment; and social care.
It is the duty of every citizen to utilise these rights in such a manner that no-one else's pursuit of happiness will be jeopardised objectively.
4. No endeavour which seeks to influence and define people's lives may be enacted that has as its basis and justification the dogma of any religion, culture, or tradition.
Similarly, no activity pursued by any individual or individuals may be prohibited through justifications derived from the realms of religion, culture, or tradition.
5. The governing process of the nation must at all times be open and accessible to any citizen, and the justification for access must be the sole property of the initiator. It is the duty of every governing body to utilise the best available technology in order to facilitate such access.
6. The purpose of the law is to enable any course of action to proceed harmoniously and efficiently. Notwithstanding any previous paragraph only those laws are allowed that contain the following structure: the objective goal; the relevant event; and the principles underlying that event.
Any law that seeks to achieve its purpose through discrimination against any human characteristic is invalid. The only justifiable limiting measure is the degree of capability in relation to the goal, the event, and/or its principles.
Similarly, no person or group of persons is entitled to claim special privileges on behalf of anyone due to race, religion, or cultural background.
7. This text is the binding document defining the basis for the existence of all individuals who freely and unhindered subscribe to its tenets as the framework of their lives, their intellectual and materialistic endeavours; and who have thus established the geographical extent of their activities by virtue of territory and boundaries.
For further explanatory texts see the document "Basic Charter" .
Based on the considerations applied under (2) the RDA appears to fall short of all three aspects - need, prevention, and efficiency.
It is questionable whether the RDA addresses a need. Since the Act correlates to the issue it is meant to address, its wording and hence the definition of racial discrimination is vague and ambiguous. If this is what 'racial discrimination' can stand for, then given those categorisations it may well not exist. Just as there are no more witch trials because we no longer define witches.
The Act is further undermined by its lack of preventative potential. There is no material gain in racial discrimination - certainly not a direct one, and notwithstanding the Act's precarious definition to begin with. There are however possible occasions where concern or criticism is raised due to however justifiably perceived problems related to persons of particular ethnic backgrounds. Australia receives immigrants from many demographics, and many happen to be of a lesser standard than their current host; indeed, it would be the major reason they chose to come here in the first place. Such standards include governance, administrative frameworks and general infrastructure, health, education, and human rights.
Problems with assimilation therefore can and do occur. Voicing concerns in that area may first and foremost not be an exercise in racial vilification but an expression of concern, perhaps frustration, anger even, and subsequently worded in ways that can differ from erudite language. To classify such expressions as a priori crime would not only complicate matters further regarding the facts, they would instill expectations on behalf of the complainant which eventually could be found to be baseless.
Parallel to the RDA Australia has the Human Rights Commission (HRC), an entity designed to deal with grievances related to the Act. The HRC notes that, while it received a fifty-nine per cent increase in complaints under section 18C, during 2012-13 fifty-three per cent of racial vilification complaints were resolved at conciliation, four per cent of such complaints were terminated or declined for being trivial, misconceived or lacking in substance, and less than three per cent proceeded to court .
It seems the RDA had (a) been the juridical trigger for complaints of that kind, (b) the HRC is well suited to deal with them, and (c) only a tiny minority progressed to evoke the procedural mechanism of a court of law. Hence the RDA neither prevented such situations nor was it hardly instrumental in resolving them. Furthermore, should some action have been prompted by someone's deepest conviction it is unlikely an entity such as the HRC - which is not a court of law in any case - would have made any difference.
Since the RDA does not produce the expected resolutions by itself and an additional body is required for positive outcomes, the efficiency of the Act is questionable as well.
Although Australia's immigration program may well be modified in the future, given the ongoing challenges in terms of employment and vacancies alone, as well as pressures from beyond the nation's borders, it is reasonable to assume the country will receive migrants in the years to come. Accompanying the sheer numbers is the variety of cultures and values that pose additional challenges in themselves. A law such as the RDA is a potential contributor to those challenges, not a mitigator, and should be abolished.
In ancient Greece Socrates was sentenced to death. So far Australia's laws do not incorporate capital punishment, the tension is not sufficiently high. Impractical laws however do raise the tension.
1. Plato, new ed. 1977. The Last Days of Socrates, Penguin Books Ltd, Middlesex, England. (p. 19)
2. Foucault, M., new ed. 1991. Discipline and Punish, The Birth of the Prison, Penguin Books, London. (p. 73)
3. 2015, Traditional Rights and Freedoms - Encroachments by Commonwealth Laws, ALRC Report 129; https://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc_129_final_report_.pdf. Accessed on internet 27 November 2016.
4. ibid, (p. 86)
5. ibid, (p. 78)
6. ibid, (p. 85)
7. Perret, G., Tell us your view on free speech, The Courier Mail, Brisbane, 23 November 2016.
8. Racial Discrimination Act 1975, No. 52, 1975 as amended, Canberra; https://www.legislation.gov.au/Details/C2014C00014. Accessed on internet 25 November 2016.
9. Ozwords, Oxford University Press, Melbourne, October 2016, Volume 25, No. 2. (pp. 4, 5)
10. Genetic genealogy, Wikipedia; https://en.wikipedia.org/wiki/Genetic_genealogy. Access on internet 27 November 2016.
11. 2007. SBS World Guide, 15th Edition, Hardie Grant Books, Prahran Victoria. (p. 342)
12. Gardiner-Garden, J., 2003. Defining Aboriginality in Australia, Current Issues Brief no. 10 2002-03, Parliament of Australia, Canberra; http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/cib0203/03Cib10. Accessed on internet 30 November 2016.
13. Eco, U., 1984. The Name Of The Rose, Picador, London.
14. Umberto Eco, Wikipedia; https://en.wikipedia.org/wiki/Umberto_Eco. Accessed on internet 28 November 2016.
15. Wurzinger, M., 1989. Basic Charter, On the origin of Mind website; http://www.otoom.net/basiccharter.htm.
16. 12 December 2013. At a glance: Racial vilification under sections 18C and 18D of the Racial Discrimination Act 1975 (Cth), Australian Human Rights Commission; https://www.humanrights.gov.au/our-work/race-discrimination/projects/glance-racial-vilification-under-sections-18c-and-18d-racial. Accessed on internet 29 November 2016.