tip off

On race, discrimination and white men’s privilege

White men don’t face racial discrimination. Advocates of reforming the Racial Discrimination Act should acknowledge their own privilege, and be more consistent in defending free speech.

Yesterday we looked at the basic argument behind the prohibition on racial vilification in section 18C of the federal Racial Discrimination Act (RDA). That prohibition is followed by section 18D, which provides for exemptions to 18C. Defenders of the RDA insist the exemptions are so broad that only the most egregious cases end up being prosecuted. That may be true, but misses the point that no exemption can make the restriction on free speech in 18C legitimate if it isn’t already so.

The exemptions in 18D are important for another reason. They exempt “anything said or done reasonably and in good faith” in the course of artistic, academic, scientific, or journalistic work (both reporting and commentary, if it’s the expression of a “genuine belief”). There’s also a catch-all “any other genuine purpose in the public interest” exemption.

I’m inclined to agree with 18C defenders that, yes, the 18D exemptions are broad — though not so broad that we were spared the sight of Andrew Bolt’s (very shoddy) journalism being scrutinised by a judge not for defamation but for offence, something that should have made any journalist shiver. But the exemptions lead us to one of the underpinnings of this debate. Despite their broadly-written nature, the exemptions are really about privilege, because aside from artists — not traditionally a profession well-known for its wealth or influence — the people most likely to benefit from 18D are in the media or politics, because they are the ones likely to be engaged in publicly discussing matters of public interest.

And privilege is a key issue that needs to be addressed by any fair-minded opponent of the 18C.

The most fascinating contribution to the RDA debate, in my view, came from an unlikely source: Ewen Jones, the Coalition member for Herbert, who recently said: “I wouldn’t have the faintest idea what it is like to experience racism.”

Jones is the same demographic as many of those who oppose 18C on free speech grounds: white and male (that’s me, too). The people who run News Corporation, which is championing the removal of 18C; the Abbott government, the Institute of Public Affairs, Andrew Bolt and much of the demographic that reads him. As whites, and particularly as white men, usually white men in positions of lesser or greater power compared to both ordinary citizens and to victims of racism, we don’t experience racism. Certainly not in Australia, and even outside Australia, our experience of bigotry of any kind is necessarily different to that of other people. We can be confident even egregious racism won’t damage our careers. We are the beneficiaries of the way our society is structured: we have the economic policies, the social hierarchies, the customs and traditions that suit us in particular, creating an environment in which we can prosper. We can use our position — as a politician, as a media commentator, as a journalist — to respond to racism or bigotry of any kind if we so desire. If we experience any kind of bigotry, we do so from a position of much greater power than most Australians.

Ewen Jones is exactly right. We wouldn’t have the faintest idea what it is like to experience racism. Certainly not the kind that most victims experience.

The powerful, the wealthy and the influential disproportionately benefit from freedom of speech.”

Moreover, as Racial Discrimination Commissioner Tim Soutphommasane has pointed out, there’s some interesting inconsistency in our approach to banning speech based on causing offence in our parliaments and on our streets:

Where, one might ask, is the public clamour calling for the repeal of these standing orders that protect politicians and judges from mere offensive language? Why is it acceptable for parliamentarians to object to merely offensive language, but not for others to object to speech that offends, insults, humiliates or intimidates because of their race?And where is the public outrage about all the offensive language provisions that exist in the criminal summary offences legislation that exist in NSW, Queensland, Victoria, South Australia, Tasmania and the Northern Territory? If there is to be such zealous interest in freedom of expression in Australia, surely attention would be properly devoted to summary offence laws that impose fines and possible sentences of community work or imprisonment on the use of merely offensive language.”

Indeed, it’s hard to imagine The Daily Telegraph campaigning to allow people to tell police to f-ck off. And Soutphommasane is correct in suggesting that surely there are bigger free speech battles to be fought — say on defamation laws.

And the inconsistency is far deeper than Soutphommasane suggests. If you’re going to do free speech properly, you have to accept two things: first, you need to be prepared to put up with how others use free speech against you — thus the media tradition of journalists not suing each other. Second, you need to defend speech you disagree with. Indeed, if you’re not prepared to defend speech you disagree with, you’re demonstrably not interested in free speech at all.

But examples of both are prolific. Commercial free-to-air TV broadcasters, who like to invoke free speech whenever regulation of advertising is proposed, have admitted they refuse to air ads they think might alienate powerful advertisers. And News Corp’s interest in free speech only extends to its own and that of those it perceives as allies, no one else. The editor of that doughty defender of free speech The Australian, Chris Mitchell, threatened journalist Julie Posetti with legal action over her coverage of the remarks of a former employee of his. The Australian used Victorian courts to prevent the release of an Office of Police Integrity report highly critical of the newspaper over its pointless “scoop” about anti-terror raids in 2009. That newspaper outed a pseudonymous progressive blogger, and tried to damage his public service career. Andrew Bolt — suddenly thin-skinned about racism — demanded an apology from the ABC over remarks by academic Marcia Langton.

Most of the media didn’t even bother covering the most serious threat to free speech and a free press of recent times — the Gillard government’s data retention proposal. And the IPA, which is usually on the free-speech frontline and which to its credit has criticised draconian laws affecting trade unions, was strangely silent on Gina Rinehart’s litigation against journalists.

But does this invalidate the opposition of such groups to restrictions on free speech? No. One of the persistent problems of being a free speech advocate is that you invariably find yourself in the trenches with people you’d cross the road to avoid. Free speech advocates — or “Panglossian absolutists” as Soutphommasane calls them — will find themselves with a Fredrick Toben on one side and a News Corp editor on the other — deeply unpleasant and inconsistent company, but them’s the breaks.

Moreover, to return to the issue of privilege, it’s true that the powerful, the wealthy and the influential disproportionately benefit from freedom of speech. But they benefit disproportionately from all legal protections, because they have the resources to use the legal system to defend themselves. That problem is one of access to justice, not of rights.

However, inconsistency and inequity points to a crucial reason why the amendment of 18C should be supported: free speech in Australia is in a bad way. Our defamation laws are painfully restrictive. The legal industry issues suppression orders like confetti. Our media outlets are even worried about being dragged before foreign courts — that’s the reason why the latest child molestation allegations about Rolf Harris only made it into print yesterday, not online. We’ve seen ASIO raid a former intelligence officer in an effort to silence his revelations about bugging of the East Timorese cabinet. The Federal Police have admitted they have used telecommunications data to search for whistleblowers talking to journalists and politicians. We have absurd restrictions on things like online discussion of euthanasia, and the government that professes to want to amend the RDA in the name of free speech is planning an internet censorship scheme, the restoration of the ABCC which overrides the right to silence and can conduct secret interrogations, a crackdown on ISPs over filesharing, a trade agreement that would impose draconian copyright burdens on Australians and like the previous government participates in an international mass internet and telecommunications surveillance program that it refuses to even discuss.

Yes, there are bigger battles to be fought, but movement in one area makes it easier to push for reform in other areas and, frankly, you take what you can get given the balance against free speech has so regularly shifted in recent years.

It would, however, help if free speech advocates recognised that there’s a white man’s burden here. Rather than attacking defenders of 18C as overly-emotional wimps terrified of hurt feelings, reform advocates would help their cause by, like Ewen Jones, acknowledging that, by and large, they don’t have a clue what it’s like to be on the receiving end of the treatment that 18C is designed to provide a remedy for, that they don’t understand and likely will never understand what it’s like to endure racial vilification. They’d also help their cause — assuming they’re actually serious about free speech — by being a lot more consistent in their defence of free speech, prosecuting the case for reform in areas much more important than the RDA, like defamation and government surveillance.

Free speech isn’t just for powerful white men.

17
  • 1
    Humphrey Bower
    Posted Friday, 21 March 2014 at 1:48 pm | Permalink

    Bernard, this is an excellent opening-up of the issue, especially by pointing out that free speech is currently the privilege of those who have the power to exercise it rather than, as it should be, a right for all. I agree that the Racial Vilification Clause needs to be modified to remove subjective provision like ‘insult’ or ‘offend’. I also agree with your broader point that free speech (and conversely I would add privacy) are currently under renewed siege (especially in the age of the internet as your excellent articles on intelligence make clear). However I don’t agree that ‘movement in one area makes it easier to push for reform in others’ and that ‘we need to take what we can get’. As you rightly point out in your previous article, there’s a difference between insulting or offending people and humiliating or intimidating them, and I believe that the latter can be adjudicated with a reasonable degree of objectivity and should be legislated on as a fundamental breach of human rights. This is where your forensic intellect as a journalist needs to cut and separate the issues. Best, Humphrey

  • 2
    Sean Stephens
    Posted Friday, 21 March 2014 at 2:02 pm | Permalink

    Crikey at its best. Ripper of an article.

  • 3
    klewso
    Posted Friday, 21 March 2014 at 2:50 pm | Permalink

    Freedom of speech is fine, when you get to edit it.

  • 4
    David Penington
    Posted Friday, 21 March 2014 at 3:11 pm | Permalink

    Some good points, especially the Ewen Jones references.
    There was a great day for free speech in the 1990’s when a protester was acquitted of “Offensive Language” charges in a Brunswick (or Melbourne) Magistrates court, on the grounds that calling Jeff Kennet a “wanker” (to his face) was legitimate political comment!

  • 5
    Desmond Carroll
    Posted Friday, 21 March 2014 at 4:18 pm | Permalink

    Incisive piece, elegantly constructed.

    Fraternal congratulations.

  • 6
    Mary
    Posted Friday, 21 March 2014 at 4:40 pm | Permalink

    Thank you. I agree with Humphrey Bower’s comments. I have a wish that we stick to truth and wisdom and the old saying ‘do unto others as you would have them do unto you’ which might eliminate some of the unpleasantness that we seem to have to legislate against.

  • 7
    rhwombat
    Posted Friday, 21 March 2014 at 5:48 pm | Permalink

    Mary: The essence of privilege is the ability to do to others without repercussions. Bolt and his fellow lackeys resent getting called, because, as white males, they assume privilege. It’s called entitlement.

    Good piece BK.

  • 8
    bushby jane
    Posted Friday, 21 March 2014 at 5:57 pm | Permalink

    Go Mary! I agree about the ‘do unto others’ bit. Pity people like Tim Wilson didn’t think about that a bit more when he whined that he didn’t want anyone to be nasty to his boyfriend because of his pursuit of ‘free speech’ (and abolishing 18c).

  • 9
    Griffiths Karen
    Posted Friday, 21 March 2014 at 6:56 pm | Permalink

    I recently read an ‘article’ by bolt that asserted the ABC’s 7.30 report had ‘accidentally’ revealed the truth about asylum seekers]. ACCIDENTALLY! The implication/suggestion from bolt was that the ABC ‘forgot’ to manipulate the message and had somehow left in footage that went against their bias toward the ‘left’. No they didn’t bolt-the ABC reported the facts as they unfolded. The ABC engaged in journalism, presentation of the facts, the truth, both sides of the story, unbiased reporting etc. In fact, the ABC did not engage in editing any of the footage so that the truth was there for all to see. How sad that you interpret honesty as a victory for your idealogical dishonesty.

  • 10
    AR
    Posted Saturday, 22 March 2014 at 7:30 am | Permalink

    Nice to point out to that most white blokes have almost no experience of racism but there is a quick & simple way to get a taste of bigotry apart from ‘coming out’.
    During the faux furore following Gillard’s misogyny speech, it was suggested that anyone who wondered “what’s the fuss” asked any woman they knew (well enough) to tlk about their worst experience of sexism - then LISTEN.

  • 11
    Alex
    Posted Saturday, 22 March 2014 at 8:43 am | Permalink

    Well put, Bernard, as per usual.

    Alex (SWM*)

    *Single White Male

  • 12
    Daly
    Posted Saturday, 22 March 2014 at 2:38 pm | Permalink

    Excellent!

  • 13
    Russ Hunter
    Posted Saturday, 22 March 2014 at 3:44 pm | Permalink

    Thanks Bernard. I must admit to coming around to your arguments. I think I so loathe Bolt that I tend to be inclined to think his enemy must be my friend.

    I’m also naturally sympathetic to the victims of racism given the history in this country (and everywhere).

    At any rate I agree this government’s obsession with 18c is out of proportion to its importance and hypocritical. I think it is based mainly on a tribalism mentality and the returning of favours from a government lacking in ethics and credibility. A government built on BS.

  • 14
    Darrell Morrison
    Posted Saturday, 22 March 2014 at 6:19 pm | Permalink

    Crikey! Can we use a generic picture of a ‘bolt’. His image pains my eyes. Or a thumbnail pic, not his smug mug scrolling across my screen! Or please, use a pic that’s not from a press kit or billboard - something dramatic like him dummy spitting on TV.

  • 15
    Anthony Timmins
    Posted Saturday, 22 March 2014 at 9:07 pm | Permalink

    It’s not only on free speech that the those of the upper class have privilege.
    Just look at Peta Cretin, oops Credlin’s recent slap on the wrist for her drink driving charge. A paltry fine and no conviction recorded. We mere mortals would have been fined hundreds of dollars and deprived of our licence for several months. One rule for them and one rule for us and they wonder why we give them no respect.

  • 16
    Griffiths Karen
    Posted Sunday, 23 March 2014 at 11:00 am | Permalink

    how long does a comment have to await moderation?

  • 17
    tonyfunnywalker
    Posted Monday, 24 March 2014 at 5:05 pm | Permalink

    Free speech is a privilege of a democracy its not a right until you listen to George Brandis in an answer to Senator Peris and his retort to Penny Wong’s interjection makes you wonder that there is a bigger agenda than just appeasing Andrew Bolt’s hurt feelings in repealing 18C.
    “It must not happen again is a very strong statement” - to openly condone bigotry is even bigger.
    I agree with your article but please ponder on Brandis’ reply as to where this debate is going.

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