Racial Discrimination and Freedom of Speech
I finally got around to watching the most recent episode of Q&A this morning, which focused mostly around issues of freedom of speech and racial discrimination. It’s all very topical, given the recent bananas thrown and cartoons drawn. Are these racist acts? Moreover, should we completely erase them from national discourse by way of legislation? Strangely enough, I don’t have a strong opinion on these issues, so the debate presented was particularly engaging for me.
What is 18C?
Much of the discussion centered around the potential repeal of Section 18C of the Racial Discrimination Act 1975 (Cth), so it’s worth reminding ourselves what is contained in that provision. Section 18C is contained in Part IIA of the Act, titled “Prohibition of Offensive Behaviour Based on Racial Hatred,” and states:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
On top of that, you need to remember two things. Firstly, before going to court as a complainant under this act, you have to pass (rather, fail) arbitration proceedings mediated by the Australian Human Rights Commission. There is also a convenient set of exemptions on 18C contained in section 18D, that prevents anything done reasonably in good faith for an artistic work, academic, scientific, journalistic, or any other “genuine purpose in the public interest.”
So freedom of political expression is safe, but freedom to say whatever vile filth comes to your mind is not. This leads to an interesting situation where people are legally forced to misrepresent their own views in order to comply with the law of the land, thus preventing us from identifying these people and providing them with an appropriately wide berth. Such legislation may promote social cohesion, but it’s an inherently unstable kind of social cohesion. A situation where the entire house of cards that is our society comes tumbling down whenever someone says something stupid or vitriolic.
Social cohesion that needs policing is not true cohesion, which instead comes from a genuine commitment to respect and harmony from all voices in our community. We see a similar phenomenon play out with the blasphemy laws hanging over Singapore, Malaysia, and Indonesia. But that’s a story for another time.
Back on Topic
The primary belligerents in the 18C argument on Q&A were Brendan O’Neill, a journalist, and Corinne Grant, a writer, comedian, and trainee lawyer. O’Neill’s argument was that 18C should be repealed to protect freedom of speech, and that responsibility for criticism of speech should be shifted from the judiciary to the public. Grant’s position is that 18C inhibits the psychological suffering instantiated by racial vilification and gives people recourse to act against that, which is a good thing.
Unfortunately for my leftist street cred, I find myself sympathising with O’Neill’s position on this issue. The anti-prohibitionist approach has its merits — listen to everything, and then call out racism and bigotry where you see it. Allow people’s inward stupidity and closed-mindedness to burn their bridges. Certainly, Trump’s comments on his bizarre campaign trail have caused him to burn a lot of bridges, particularly with NBC. Sadly, this doesn’t work in all cases: Bill Leak has ostensibly not had his career damaged by his proud history of the most overt kind of racism we’re likely to come across in public discourse in our society.
It’s good for us to impose certain standards through legislation, and for legal avenues to exist for people to pursue complaints. And, given the limitations on what constitutes an unlawful act, we may have found a happy medium between silencing racism and permitting useful discussion to take place. The Bolt Case is a perfect example of this. In saying that fair-skinned Indigenous Australians like me are purely identifying as Indigenous for financial gain, Bolt propagated a line of thinking which promotes unreasonable and hateful attitudes to fair-skinned Aboriginals. My response would perhaps have been a counter-article entitled “You’re a Fucking Idiot, Andrew,” but I accept the legitimacy of legal action in lieu of something more colourful. The complainants in that case demanded an apology and payment of their legal fees, but not damages. And so it should be.
But does silencing racist sentiment truly eliminate the phenomenon? No. Has Andrew Bolt changed his opinion on fair-skinned Indigenous people? Of course not. This argument runs a similar track to those against concepts as diverse as affirmative action and Sydney’s Lockout Laws. Simply preventing stupidity from playing out on our society doesn’t get rid of stupidity, whether that manifests as alcohol-fuelled violence, sexist business practices, or racist harassment. It would be much better to eliminate these issues at the source — the unhealthy cultural attitudes and behaviours that predispose us to these ills. But we don’t live in a progressive utopia, so some legal protections are naturally necessary. And so the debate goes on.
The QUT Incident
By way of a case study, the now-infamous incident involving five QUT students was raised. If you’re unaware of this saga, I highly recommend reading up on it, because it is a truly fascinating example of where apparently constructive legislation can become overly predatory. Here’s the offending Facebook post for which a young man is currently being sued for over two hundred thousand dollars:
“Just got kicked out of the indigenous only computer lab. QUT stopping segregation with segregation?”
I challenge you to find a statement more thoroughly representative heinously racist mindset. One daring individual commented “I wonder where the white supremacist lab is” (he was also sued).
Okay, clearly I think it’s ridiculous that the case has made it this far. For a start, I don’t think that the above constitutes an unlawful act under 18C. The complainant also didn’t use internal dispute resolution mechanisms within the university, which would have seen the issue solved within the week. And curiously, the AHRC indicated that the complainant was never interested in settling at the arbitration stage:
The AHRC has not commented on the case directly but says respondents are sometimes not notified in situations where it is not clear if the complainant wishes to continue with the proceedings against them, so as to not cause the respondent unnecessary concern.
Is it fair to be offended by the suggestion that the special attention we give to Indigenous students is not warranted? Yes. Is it fair to stop people from expressing that opinion with accusations of racism? No. The best response here would be to educate these lads as to why we need dedicated spaces for Indigenous students, not to take them to court for hundreds of thousands of dollars. I would be requesting a sit-down with them through internal University dispute resolution processes and telling them about the poor educational outcomes that we see in Indigenous Australia, the struggles unique to Indigenous Australians undergoing higher education, and how special support mechanisms close that particular gap. In other words, I would fight their ideas.
Most of the Q&A panel withheld comment on this issue, indicating that we aren’t aware of all of the facts of the case. I’m not sure whether this is reasonable. There may be hidden facts, but the version of the story presented above and in the linked article has pretty much been confirmed by all parties.
In any event, it’s well within one’s rights to make a conditional judgement about such an issue. It would be legitimate to say “yeah, if what we’ve been presented with is a complete and accurate account, it’s pretty messed up.”
Problems abound on both sides of the argument. Grant basically claimed that we should just leave it to the judges to decide what should happen on the merits of the case. But that doesn’t answer the more relevant question: is it right that it ever got this far? Faith in the judiciary is all well and good, but not relevant to the argument of whether the proceedings should have made it to court in the first place.
The problem with O’Neill’s response to this is that he simply said that it was ridiculous that young people are being dragged through the traumatic process of legal proceedings for “saying something.” He shouldn’t have stopped there, because (again, assuming the facts on the table are more or less complete), this is not clear-cut racial abuse we’re talking about. Young people are being dragged through the traumatic and disruptive process of high-level court proceedings for saying something legitimate. Something which should absolutely be allowed, particularly amongst youth. We are regularly told to question everything and become politically active, and of course this has limits, but if testing those limits (without even approaching “the red line”) involves being sued in the Federal Court, what’s the point?
On the Other Hand, Bill Leak is a Bastard
But this is one case of “political correctness gone mad” where such a title is actually applicable. People often use the anti-PC label to justify whatever vitriol happens to be selling well that week. This is a tried and true tactic of the far right, and is embodied by the policies of Family First and One Nation.
Let’s take an issue that’s pretty clear-cut. Bill Leak is a living argument for retaining 18C. His suggestion that Indigenous Australian men are alcoholic wife-beaters and neglectful fathers is framed by the right as initiating a vital conversation about important issues in the Indigenous community, but this is an illusion propped up by its proponent’s prejudices.
To deconstruct this façade, we need only ask ourselves what kind of discussion such a depiction creates. Is it one which fairly examines the factors that predispose some parents (Indigenous and otherwise) to adopt neglectful, abusive, and otherwise suboptimal parenting practices and aims to remove those upstream issues? This would truly be a useful conversation to have. But what is the logical conclusion of the conversation that this most recent cartoon is trying to start? The answer: to vilify Indigenous Australians.
If you place this cartoon in the context of Leak’s past work, the racial vilification starts to become obvious. Not only has Leak extensively cartooned about his shallow perception of Indigenous issues, he’s also taken aim at Indians in a despicable cartoon where he renders a group of the most stereotypical ascetic gurus imaginable eating solar panels provided by the UN. This speaks to a complete misunderstanding of Indian culture and society. I’m not one to invoke the “c” word with the regularity of my nouveau socialist contemporaries, but it seems warranted here:
Bill Leak is a colonialist.
So What?
I guess I still don’t know where I stand on this issue. It’s one of those things that can be defended pretty evenly on both sides. I certainly don’t think it’s a good idea to silence voices based on the perception of racial discrimination when it is an idea or policy which is under criticism. In order to make a case for racial harassment, a complainant should have to demonstrate that the respondent was targeting people, not ideas.
That way, 18D is reinforced as a provision which excludes not only good faith statements made in the public interest, but also any criticism of an idea that was not designed to specifically vilify people based on their ethnicity. Which I think is more or less the situation we’re in: speech is protected, but so are people.
Now, if you’ll excuse me, all this talk of terrible people doing terrible things has made me feel slightly ill. If you’re also feeling like a bullshit detox, I strongly recommend immediate administration of Birb Memes prn.
