Human Rights and the Racial Discrimination Act

There’s a debate running at the moment on Section 18C of the Racial Discrimination Act, in large part because the current government intends to repeal, or at least trim, 18C. The Coalition, along with other right-leaning entities like the Institute for Public Affairs, views 18C as too broad: essentially a ‘hurt feelings’ test which is injurious to freedom of speech. The right is fairly united in this opposition, but the left is more divided. Some support the RDA as it stands, while others are sympathetic to the freedom of speech argument.

I’m of the opinion that the RDA does a good job of balancing free expression with building a community based on respect and dignity, especially given the role of Section 18D. Tim Soutphommasane has written a great piece defending this position, as has Mark Fletcher.

Why oppose 18C? Many figures on the right, and numerous journalists, have argued that an unchecked ‘right to free speech’ is vital to the democratic process, and that 18C represents unacceptable censorship. A more rigorous argument of this sort comes from Prof. Sarah Joseph, who grounds her opposition to parts of 18C in terms of human rights. Prof. Joseph reasons as follows:

“Article 19(3) of the ICCPR anticipates that one’s right to freedom of expression can be limited by proportionate measures designed to protect the “rights of others”. Those “rights” should be other “human rights”, not lesser rights. And there is no human right to be free from offence and insults, even on the basis of one’s race.”
(Source)

This argument suffers from several interesting weaknesses that highlight broader problems within our collective public discussion of human rights.

One major problem we face in these discussions flows from how difficult it is to determine the fundamental nature of rights themselves. If human rights can only be limited by other human rights, and not by ‘lesser rights’, we need to be able to distinguish between those sets of rights.

The ‘lesser rights’ would presumably be merely legal rights (though exactly how even a ‘legal’ right is supposed to work is a messy area). In some sense, these rights are viewed as arbitrary – a State could simply create or remove them.

Contrastingly, ‘human rights’ are supposed to be rights that arise in a self-evident way from the characteristics of every individual person, and which are not created by States, but rather recognised. Human rights are meant to be universal, and presumably our account of human rights needs to be universally binding, since they are supposed to be of overriding significance in any conflict where they might be a relevant concern.

One of the issues with this assumed universality, and discussion of human rights more generally, is that the widely accepted account we use says nothing useful about how we justify their existence. Moreover, it does this deliberately. When the Universal Declaration of Human Rights was drafted, the authors intentionally avoided making any meta-ethical or foundational claims, to avoid the frequently intractable arguments that characterise this area. This pragmatic strategy allowed groups with wildly divergent beliefs and values to agree to a shared system. Unfortunately, the lack of foundation makes our system intellectually toothless. There is no clear reason to accept the rights asserted in the UDHR (or in the subsequent International Covenant on Civil and Political Rights) which does not immediately bring us back to exactly the same difficult discussions the authors attempted to avoid.

This becomes a real problem when we start arguing about human rights, particularly if we’re using them to determine what sort of actions should be lawful. If one side buttresses their argument by appealing to human rights, and the other side responds by either denying human right exist at all, or saying that the first party’s conception of human rights is incorrect, the discussion has to move into questions of what constitutes a human right, and why. We can’t just rely on some set of human rights as written – that confuses a descriptive argument (“The ICCPR says human rights are X, Y and not Z”) with a normative argument (“Human rights are rationally binding moral obligations to do or permit X, Y and not Z”).

When we appeal to human rights as they appear in the UDHR or ICCPR, we’re appealing to a specific, contingent set of rules that don’t have any better justification than, for example, the Racial Discrimination Act. So why should the RDA be required to change? Should Australia be bound by previous international agreements if it turns out that those agreements don’t adequately allow for us to defend people from racist abuse? If we are morally obliged to build a society doesn’t tolerate racially-based injustice, our conception of rights must change. If international human rights law protected some other kind of intolerable behaviour, we would rightly reject that law.

This is the problem with the ‘humans rights vs lesser rights’ claim. The claim ‘Right X is more important than Right Y, because X is a human right and Y is not’ makes no sense as a justificatory argument, since the distinction is itself unjustified and arbitrary.

Human rights law needs a rebuild from the ground up. We should accept the costs of justifying our ethical claims, because in doing so we make those claims both more resilient and more easily engaged with when we find ourselves in ethical dilemmas. We ought to be engaging with complex questions about the obligations we have toward one another, and tackling the question of whether our laws are morally valid, rather than appealing to their mere existence as the beginning and end of what individuals deserve in a just society.