I have spent a professional lifetime trying to get people to know about (let alone respect) anti-discrimination law, and suddenly everyone knows about ‘section 18C’. For all the wrong reasons.
A right reason for knowing about 18C would be because it is offers guidance on what can fairly be said and done on the basis of race. A wrong reason would be because it is characterised as an unwarranted limit on ‘free speech’.
For close to 20 years, the limits imposed by 18C have been unremarkable. The Australian Human Rights Commission receives and resolves complaints about conduct that exceeds the limits, and the federal courts decide cases when the complaints cannot be resolved.
As with any legal regulation, awareness of 18C, and understanding about how it works, has grown over time. But most importantly, 18C, as with any legal regulation, stands as a statement of public values, a declaration by the government, on our behalf, of what is and is not acceptable in society.
For close to 20 years we have told ourselves and the world that an Australia value is to not tolerate race-based words that cause harm. Brandis has declared that not only we will tolerate such words, but we will encourage them. So the 18C debate is about much more than the unremarkable exercise of setting limits on free speech. It is, as well, about the role of our representatives in articulating public values and, relatedly, about the place of legislation in expressing those values.
Public values change, and law needs to change with them, though it often lags behind. When there is sufficient public momentum a government acts to reflect popular will by making, amending or repealing a law. In the current racial vilification debate, ‘free speech’ has been promoted as an Australian public value that is overly-limited by 18C, and that should now be given greater prominence.
Has the time come to resile from the values that are expressed in 18C? It is hard to see anything that suggests that Australian values have reverted to a time when racial abuse was permissible. Despite the Attorney-General’s notorious defence of our right to be bigots, there is no evidence that a large number of us actually want to express bigotry any more than 18C allows.
The ‘free speech’ rhetoric is, in fact, a claim to ‘free racist speech’, and the Racial Discrimination Act allows a great deal of free racist speech; persistent reference to 18C overlooks the wide exceptions available in 18D. We are very free to engage in race-based speech in Australia; as Richard Ackland asked ‘what is it that these people really want to say about race, colour, etc, that they are currently chilled from saying by the anti-free-speech RDA?’.
The one celebrated case when someone wanted to say something about race, but failed to do so within the exceptions in section 18D, was Andrew Bolt’s. If it was not for that case, and News Limited’s determined attack on 18C as a result, we would not be having this debate, and our racial vilification law would have continued doing its work.
Senator Brandis invites us all to engage in racist speech. When your child comes home from school dismissing ‘boongs’ as lazy and ‘towel-heads’ as terrorists, she can say that Senator Brandis told her that she has the right to be a bigot. This type of ‘leadership’ is unworthy of an elected official, let alone Australia’s first law officer.
Specifically, Brandis’s amendments to 18C invite anyone to say anything about anyone, under the guise of ‘public discussion’. Perhaps it is the contemporaneous announcement of the reintroduction of knights and dames that makes me wonder whether Brandis’s idea of public discussion is still in the 19th century: a town hall meeting or a Hyde Park soap box. These days, very little is not ‘public discussion’. Media such as websites, blogs, Facebook, YouTube and tweets enable the public promotion of ideas and opinions as never before.
The contemporary unregulated, unbounded world of public discussion gives the lie to those who disdain government regulation and would rely instead on the ‘marketplace of ideas’ as a way of regulating speech. The brave new world of public discussion is undiscerning in the relative prominence it gives to speech: in the absence of any guiding principles, vicious and hateful opinion is as ‘valid’ as that which is respectful and affirming.
There is, therefore, no ‘exchange’ as there might be in a market, no mechanism for evaluating opinion; online, everything has a claim to credibility. There is no ordered exchange of opinion. Opportunities for debate are limited, most of what ‘said’ remains untested and unchallenged, and it is implausible to claim that opinions will thrive or fail on merit.
This unregulated space suits those with the capacity to exploit it, to make the loudest noise, and to dominate. Politicians and news media corporations have that capacity, and 18C stands in their way. They attack it because they can, and they (wilfully?) fail to see and respect the power they have. Without the quality of self-restraint, they are able to say that something should be done simply because it can be done. Without the quality of empathy, they are able to say that causing offence doesn’t matter. And without the quality of humility, they are able to decide what level of racial abuse people should live with.
While politicians and news media corporations have the power to dominate public discussion, racial minorities do not. Although the backlash against Brandis’s proposed amendment of 18C has been substantial, it comes largely from those who receive 18C’s protection – that is, from those who are on the receiving end of race-based conduct, particularly migrants and indigenous peoples.
Our social minorities, who look to the government for protection in a majoritarian ethos, now find that their government promotes a right to oppress them. In this perverse situation, it is vital that members of the majority stand against their colleagues, and stand by the state’s obligation to protect the vulnerable who are under its care.
Simon Rice teaches law at the ANU. He is the Professor of Law, Director, Law Reform and Social Justice, ANU College of Law. He is also Chair of the ACT Law Reform Advisory Council.