Following a long campaign the government is finally moving to reform Section 18C of the Racial Discrimination Act, a legal provision that has seen ordinary students hauled to court for criticising their university’s policy of a separate computer lab for Indigenous students and which nearly saw the late Bill Leak hauled to court for his controversial and confronting satire.
The central argument against the law is simple – it has not served to punish racist attacks. Instead, it has been used to silence those holding controversial opinions who have been the victims of vexatious litigation regardless of whether they were racist or not. The reformed section will remove the subjective words ‘offend, insult or humiliate’ in favour of ‘harass’ or ‘intimidate’ which both have objective meanings.
Unsurprisingly, the political left has been quick to respond with outpourings of frustration and virtual signalling. The latest in the series of diatribes has been a hashtag, #FreedomOfSpeech, posted alongside stories featuring personal experiences of racism faced by twitter users as a sarcastic jibe. At first, this trendy Twitterati campaign doesn’t seem quite as brain-dead as the redundant #Illridewithyou in the wake of the Lindt Café siege. Why weaken a law aimed at racism when racism is a very real and painful experience for so many people in our country even today?
The only problem is – the harrowing stories actually prove the point. Section 18C did not come to the rescue of any of these victims.
Let’s start with writer Benjamin Law, credited with starting the phenomenon.
The first two instances he mentions – being abused in public and having his head held down at a pool are instances of harassment and intimidation. What’s more, even without the aggravating racial element of these incidents, they would likely have been captured by our other laws – public disorder offences, assault to name a few. What these laws carry that 18C doesn’t is a criminal penalty – a real punishment and deterrent for those engaging in racist abuse. These are the same laws which have been raised in multiple high profile cases of people racially abusing others in a public space.
In 2014 for example, Central coast woman Sue Wilkins was shamed on national media for engaging in a racist tirade against an interracial couple on a train. She was charged with offensive language and the incident, filmed on modern technology and quickly circulated through viral media, is sure to haunt her for years to come. Race Discrimination Commissioner Tim Soutphommasane declared that the incident was proof that the RDA should not be reformed as it would embolden racists like Sue – an ironic statement considering that the law in question was neither raised nor necessary to punish the racist in that situation.
The third instance is interesting because it’s what is often referred to today as a ‘microaggression’ – an instance of ‘unconscious’ racism often demonstrating ignorance or insensitivity.
I’m reminded of my own experience, coming to Australia from India as a 14-year-old and being told on my first day of school by one of the other boys “You speak pretty good English for an Indian.” I responded with “Yeah, your English isn’t so bad either.” My new schoolmate hadn’t realised that I had an English-language education in my country of origin, but I still recall the moment as satisfying. Needless to say, the Racial Discrimination Act didn’t and could never have possibly factored into either my own ‘microaggression’ experience or that of Benjamin Law’s.
Nova Peris, the Indigenous athlete and former senator responded to the hashtag by sharing screenshots of racist trolls who had targeted her on her Facebook page.
It’s a blessing whenever a typically ignorant person makes a public statement such as “I am racist and proud of it”. One of the biggest problems with racism is that people with racist views keep them quiet, leaving them free from any reprisal or consequence. We have protections against refusing to hire someone based on race yet in practice, it’s very difficult to prove to a court that the reason you weren’t picked was the colour of your skin – short of the interviewer blankly telling you that they don’t want ‘your kind’ in their workplace.
Studies in America and Australia have revealed the depressing reality that you are less likely to be hired with the same CV if you have an ‘ethnic’ sounding name and there’s absolutely no practical way to prosecute these people or to even identify them for public criticism because it’s virtually impossible to prove.
Our society is best at combatting racism when it allows these ideas to come into the open to be dismantled.
Chris Nelson soon found himself publicly exposed and shamed, with a petition to prosecute him attracting nearly 15,000 signatures. Leaving aside his generic name, a Google search is all it takes to bring up evidence that he isn’t the kind of guy most of us would want to hire at your company or associate with in general.
What’s great about this particular screenshot is that we see Nova respond with class by calling out Chris’s bigoted ignorance in front of the world and by even educating him a little. An 18C complaint was never raised. The message was clear – this is racism and our society won’t tolerate it.
Minorities are best placed to tackle racism when the law does not patronise them. When society empowers them to stand up against hateful views while the law protects them from threats, harassment and disenfranchisement. Our diversity is our strength yet it relies on our common values including freedom of thought and speech. I’m proud to live in a country that is moving towards allowing people to discuss their views on controversial or sensitive topics without the threat of legal action hanging over their heads because of whom they might offend.
Satya Marar is a Research Associate at the Australian Taxpayers' Alliance
[This article first appeared in The Spectator Australia]