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Freedom of speech should not trump freedom from humiliation

The changes to the Racial Discrimination Act are not only bad policy, they are unfair, write Giri Sivaraman from Maurice Blackburn Lawyers and Macquarie University’s Jessica McLean.

Recent proposed amendments to the Racial Discrimination Act  have once again starkly highlighted that debate in Australia on racism not only remains alive, it sadly still clings to insecurities over nationhood and a desire by many to perpetuate the notion that we live in a monocultural society.

The reality couldn’t be further from the truth. Australia is made up of over 270 different cultures, speaking more than 260 languages and practising over 100 different faiths.

Yet despite this rich cultural diversity, our community sadly has been defined for much of the 20th century by the racist White Australia Policy — a policy that aimed to bring racially homogenous people here and keep others out.

It has taken a long time to shed the ideas from that policy, but unfortunately the changes to the RDA proposed by the federal government risk dragging us back to an ugly time when racism was tolerated in our institutions, practices, in workplaces and on the streets. While that policy is now a historical fact, its echoes over time continue to taint the ideas in the current Racial Discrimination Act interventions.

The federal government wants to make it legal to offend, insult or humiliate a person on the basis of his or her race, colour, descent or national or ethnic origin. The practical impact of this will mean that the green light is given to those who believe their right to free speech will always outweigh the right of someone to exist free of insult and humiliation. The concerns regarding this have been well articulated by many — namely, that it may create a more hostile culture where bigoted behaviour can lead to social and workplace disharmony.

The government’s amendments also propose to introduce protection against vilification on the basis of race, colour, descent or national or ethnic origin. Vilification is an uncertain term, and any proposed protection against vilification arguably does not protect against offence, insult and humiliation on the basis of race. In any event, the government wants a provision that should be termed the “Andrew Bolt exclusion”, rendering this new section powerless in regards to words, sounds, images or writing communicated in the course of public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.

While there has been much debate about these proposals, one of the factors that has been largely overlooked is the inherent unfairness of racism itself. Indeed, the very notion of “race” is a culturally and historically produced category, rather than one based in any biological fact.

Race” is a notoriously difficult concept to identify, and it is almost universally accepted that the biological differences within so-called racial groups are not significant when compared to the biological similarities that cut across these socially created boundaries.

A broader definition of race would be a combination of descent, self-identification and communal recognition — a definition that was recognised in the case that has inspired so much controversy, Eatock v Bolt decision of Justice Mordy Bromberg. Just as you cannot choose who you descend from, it is nearly impossible to control how the community will treat you. That is, unless there are laws that create a community standard for behaviour.

A person can also not control their origin.  That is one of the fundamental stupidities of racism in that it seeks to differentiate between people on the basis of factors that are out of their hands, or may have no effect on their behaviour whatsoever. As His Honour pointed out in the Eatock v Bolt decision, the eight individuals who had been offended and humiliated by the writings of  Bolt did not choose to be Aboriginal. A person’s national and ethnic origins fall within that same category of characteristics one cannot choose.

Allowing humiliation of someone on the basis of race is no different to humiliating someone because they were born with a congenital birth condition. It’s inherently unfair and an excessive and unjustifiable use of free speech.

That’s why it’s important we preserve the protections that exist under s18C of the current law, subject as they are to a wide exception in s.18D.

Removing that protection simply compounds and confirms the inherent unfairness and stupidity of racism. Our federal government can and should move away from a step backwards in removing these protections by imagining a community that embraces cultural diversity and maintains measures for redress when people are discriminated against on the basis of imputed meanings of the colour of their skin.

*Giri Sivaraman is a principal in employment and industrial law at Maurice Blackburn Lawyers and Jessica McLean is a lecturer at Macquarie University.

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  • 1
    Patriot
    Posted Friday, 11 April 2014 at 8:19 pm | Permalink

    Australia is made up of over 270 different cultures, speaking more than 260 languages and practising over 100 different faiths.

    So what? The ultimate minority is the individual. It’s plain to see why lefty lawyers are keen on this. No doubt they think chasing white aboriginals is better business than chasing ambulances.

  • 2
    Blue Lady Orchid
    Posted Saturday, 12 April 2014 at 10:39 am | Permalink

    #Ethnocentricity
    Changing the Anti- Discrimination Act that allows comments made by Andrew Bolt permissible and unaccountable is irresponsible and totally unacceptable. Australia has progressed as a Nation so lets not wind back the clock to an era when racial discrimination made any individual with a difference ‘fair’ game.

  • 3
    Dan B
    Posted Saturday, 12 April 2014 at 5:26 pm | Permalink

    Humiliation, insult etc. are all emotional byproducts of words. Providing those who feel vilified are not physically harmed, they need to grow thicker skin.
    The repeal of s18C simply frees up the courts that have been choked to death by individuals and or groups abusing a politically correct cancer called racial discrimination.
    Harden up. Accept who you are. Be proud of who you are. Then you are invincible to bloody words.
    You lefties cry discrimination at everything, yet when it comes time to “inform the public” carefully select your content to avoid big reasons why Australia has a society that is largely perceived to be racist.
    Take for instance a recent Magistrate ruling in Geelong regarding an Afghan immigrant, still suckling the Government tit, who is a registered sex offender and who was just cleared of any wrong doing by a person who cited “cultural differences”. You and your ilk constantly blame Australians for their lack of racial tolerance while remaining deathly quiet about other forms of racial discrimination - Australia’s. In actuality, this magistrate just inferred that Afghan culture accepts peadophelia. Something the Afghan Government has publicly refuted forever. So his ruling is racially discriminative, right? It is, absolutely, on two fronts. To Australians and to Afghans. Nothing has been said about this in the mainstream. You have to trawl the web for it.
    The whole racist topic is farcical. We have muslim protests where children are photographed holding signs saying “behead those who insult islam”. The media - too timid to give it widest dissemination, and condemn it for what it is - inciting hatred. And those few who did were told “oh I don’t speak English, I didn’t know what it said” - and swallow it. Give me a break.
    You only report one side of this ridiculous subject, and wonder why there are many speaking out against minorities. Simply put, it is because you won’t do it.
    Harden the hell up..

  • 4
    Rais
    Posted Saturday, 12 April 2014 at 10:07 pm | Permalink

    Dan B would be a white Anglo Saxon, right?

  • 5
    Rais
    Posted Saturday, 12 April 2014 at 11:12 pm | Permalink

    Every report about racism has its quota of people who have never experienced racial abuse as a member of a relatively helpless minority, trying to dictate from a lofty height what should be regarded as racism and what should not. Or telling the said helpless minority to “harden up.” Yeah right. You won’t like it if we do. My son was called a “black bastard” while shopping with his mother and he approached the abuser hoping to be hit so he could smash him citing self defence. Is that the hardening up you want?

  • 6
    Rais
    Posted Saturday, 12 April 2014 at 11:56 pm | Permalink

    And while we’re on that subject…

    http://www.upworthy.com/a-man-slams-down-a-bigoted-question-so-hard-he-brings-down-the-house?c=reccon1

    But Patriot and Dab B wouldn’t comprehend that.

  • 7
    Rais
    Posted Sunday, 13 April 2014 at 12:04 am | Permalink

    And how about this?

    http://www.upworthy.com/know-anyone-that-thinks-racial-profiling-is-exaggerated-watch-this-and-tell-me-when-your-jaw-drops-2?c=reccon1

  • 8
    Michael Jones
    Posted Sunday, 13 April 2014 at 8:52 am | Permalink

    Allowing Racial vilification is a suppression of freedom of speech. Most well-off white people don’t get this, because we can’t imagine how hard it is to speak out after being barraged with that kind of abuse.

    Abusive, Racist language serves a role in keeping people invisible and unable to speak out. It is about intimidation, and driving people out of the public discussion.

    It’s no coincidence that one of the pieces Bolt was called to task for, was basically him telling a bunch of indigenous people to shut up and go away.

  • 9
    Glen Laslett
    Posted Monday, 14 April 2014 at 6:23 am | Permalink

    I think that the challenge is to draw boundaries around the principle. That is, should humiliating someone because of their weight or gender be proscribed by law? More importantly, should humiliating someone because of their political views be prohibited by legislation? I’m old enough to remember the “bad old days” of absolutely outrageous racism and that has (thankfully) largely passed. However, proscribing speech with respect to one group or genre invites proscribing it for others and then we step onto a slippery slope.

  • 10
    Uncle Mareko
    Posted Monday, 14 April 2014 at 11:58 am | Permalink

    I belong to a racial minority and am bemused by those who, like Giri and Jessica purport to speak on behalf of others who may be offended by something said publicly by someone else. Of course, here in Australia they have every right to hear it, and to be offended because here we enjoy free speech. Yet, underlying their concern is a fallacial conflation racism and free speech.
    Racism is quite distinct from free speech. It occurs whether or not free speech exists. It seems to me that racism is more deeply entrenched in societies where free speech is not allowed. Theocracies and dictatorships come readily to mind.
    In free societies it occurs too, but not because citizens of free societies, who, by definition, enjoy the right to say what they want.
    The best response to racism is ridicule, especially the offensive biting sarcasm that ridicules people who hold or express racist views. For that to occur requires that section 18C be removed.

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