January 16, 2015

Section 18C

Deeper water

By Russell Marks
Charlie Hebdo, free speech, multiculturalism and 18C

The liberal position on freedom of expression is equivalent to the liberal position on most things: to the extent that it does not cause harm, people should be free to say, write or draw what they want. Because the acts of speaking or publishing are not by themselves capable of causing direct harm to anybody in the way that, say, the act of punching somebody can, the freedom allowed to spoken and printed material is, in modern Western thought, generally very broad. The story of the Enlightenment and the development of modernity itself rightly give pride of place to the long-running battle for freedom of speech in the face of restrictions imposed by the church and the authoritarian state.

In the week since the horrific attack on French satirical magazine Charlie Hebdo, many in Paris and around the world have renewed their commitment to “free speech”. Je suis Charlie. The very idea that satirists, cartoonists, illustrators and magazine editors might be murdered because they printed things other people didn’t like, or took offence to, is abhorrent to most of humanity. Millions have marched and tweeted in support of the ideals of Charlie Hebdo’s slain editor, Charb.

In Australia, the attack has led, perhaps inevitably, to a renewed effort to repeal or modify section 18C of the Racial Discrimination Act. That effort has come, as it has since 2011, from the right. First, South Australian Liberal senator Cory Bernardi re-floated the idea of 18C’s repeal, which reminded everyone that he is co-sponsoring a private member’s bill that aims to do just that. Then the Human Rights Commission’s “freedom commissioner”, Tim Wilson, formerly with the anti-18C think tank the Institute of Public Affairs, suggested that Australians aren’t as free as they should be because much of Charlie Hebdo couldn’t be printed here due to 18C’s existence. And most recently, Tony Abbott restated his preference for 18C’s repeal, though he quashed any suggestion that it was part of the government’s immediate agenda.

There’s an irony about the right’s defence of freedom of speech, of course, and that irony has been explored elsewhereCharlie Hebdo is known to tear satirical strips off any and all comers, and takes particular delight in targeting many of the institutions and beliefs the right holds sacred. And there are plenty of examples of figures on the right – Chris Kenny, Joe Hockey, Abbott himself – running to the courts to have various expressions of speech “banned”, to use Andrew Bolt’s preferred term.

Freedom of speech is, of course, a more complicated idea than is encapsulated in the children’s adage “sticks and stones may break my bones, but names can never hurt me”. Liberals have no problem acknowledging that speech can be harmful to individuals when it’s slanderous or defamatory. In most Australian states and territories, “merely” threatening to kill or seriously injure another person is a major crime, punishable by jail time. Child pornography is an example of printed material that is harmful in its very production, and advertisements for products such as tobacco and fast food are increasingly being recognised as harmful in their intended effects.

Australia’s right has a problem with section 18C because its proponents can’t see how “merely” offending another person on the basis of their racial identity can be harmful enough to justify restricting their own “right” to do so. This is a failure of ethics and of imagination. Andrew Bolt, Tony Abbott, Tim Wilson and the co-sponsors of the private member’s bill currently before the senate – Cory Bernardi, Bob Day, David Leyonhjelm and Dean Smith – have never experienced the harm caused by, for instance, Bolt’s own offensive suggestion that “pale-skinned” Indigenous people were exploiting scholarships, prizes and positions reserved for Indigenous people.

That’s not the same as saying that nobody has ever singled out the racial or ethnic features of Bolt & co. and sought to abuse, intimidate or offend them on that basis. But racism is mostly about power: the capacity to cause harm is inextricably linked to the “racial power” of both offender and offended. The world being as it is, with the history that it has, when a “white” person makes a racially offensive comment to a person whose racial identity is not white, it is highly likely to cause harm. But seeking to offend a white person on the basis of their racial identity or ethnicity ends up being about as offensive as calling him or her a dickhead.

White Australians generally struggle to comprehend the power dimension of racism. Often, they look at the words themselves, removed from their social context, as if they have magical powers all of their own. Bolt has taken to describing attempts to explain the social realities of racism as themselves racist, because they refer to the different experiences of “white” and “non-white” people and so use words that can be offensive. I’ve sat in court and listened to police prosecutors allege that my Aboriginal clients racially abused their victims by calling them “white dog”. I’ve heard (white) magistrates ask my clients: “If you don't like being racially abused yourself, why would you racially abuse other people?”

The critical race theorists (CRT) of North America call this kind of thinking “legal liberalism”: in its anxiety to treat everyone equally regardless of colour, class or creed – an otherwise admirable goal – the law in practice ignores the social dynamics that are so vitally relevant to such harms as racism. Indeed, the Racial Discrimination Act and its section 18C are themselves written in the artificially neutral language of legal liberalism, and arguably leave open the possibility that “white” people would be able to complain of racial abuse. On this basis, 18C was the subject of CRT-based criticism well before George Brandis wanted it repealed to protect the rights of bigots. On the other hand, 18C’s requirement that an act be “reasonably likely in all the circumstances” to offend, insult, humiliate or intimidate would hopefully prevent the prosecution of so-called “reverse racism”.

The Racial Discrimination Act, legislated under the Whitlam government in 1975, established a new social contract for the new multicultural Australia. Section 18C (and the list of exemptions in 18D) were added in the early 1990s, following recommendations made by national inquiries such as the Human Rights and Equal Opportunity Commission’s Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody, which both reported in 1991. The Act recognises racial offence, insult, humiliation and intimidation as a category of harm that, like defamation, libel, slander, criminal threat and child pornography, is unwelcome and unlawful in modern Australia.

Nearly 90% of us think this is right and necessary, but Bolt, Abbott & co. do not. Abbott made his pre-election promise to repeal 18C following the Federal Court’s 2011 finding against Bolt for the two columns he’d published in the Herald Sun, in which he suggested that there was a “discernable trend” whereby people of mixed ancestry, including Aboriginal ancestry, are choosing to identify as Aboriginal in order to gain particular benefits. That suggestion is patently likely to cause offence, but Judge Mordy Bromberg stressed that it would have been legally permissible had the articles not contained “errors of fact, distortions of the truth and inflammatory and provocative language”, which prevented them from coming under the (very wide) “public interest” exemptions listed in 18D.

By arguing for the repeal of 18C, the right is not only denying the harm caused to people who suffer social consequences because of others’ racial prejudices. They’re also explicitly arguing for the right to articulate prejudicial views in ways that would be against the public interest.

Tim Wilson thinks the kind of satire that fills the pages of Charlie Hebdo couldn’t be published in Australia because of 18C. He’s probably wrong, because satire would almost always fall under the public interest exemptions in 18D, however offensive they are. Then again, Charlie Hebdo’s “satire” often involves racial stereotypes – big-nosed Jews, crazed-looking Arabs. Those stereotypes are not so different to the stereotypes of Chinese, Aboriginal and African people that appeared in the Bulletin a century ago. 

Do we really want or need those stereotypes in modern Australia? Stereotyped depictions like many in Charlie Hebdo are offensive, not just to Jewish and Arabic people, but also to most people in a consciously multicultural, multi-ethnic national community like Australia’s.

By evoking the language of liberty to defend the right of white people to cause harm by offending non-white people on the basis of their race or ethnicity, what Australia’s anti-18C brigade is really arguing for is a pre-multicultural Australia. Charlie Hebdo’s first cover after the terrible events of last week featured the Prophet Muhammad holding a banner displaying the words “Je suis Charlie”. A tear is dropping from Muhammad’s left eye, and the words “tout est pardonné” – all is forgiven – are scrawled above him. Yesterday Abbott said he “liked” the cover because it promoted forgiveness.

But the image is still offensive. It still depicts the prophet, which is offensive to many Muslims, and it is still a racial stereotype. The image is a gesture of forgiveness, but it’s one that comes from within a monocultural worldview. Had the artist sought to incorporate the views and experiences of French Muslims in a genuine act of solidarity against extremism and terrorism, he would not have drawn the Prophet Muhammad at all. In a multicultural world, dialogue – interfaith, intercultural dialogue – is crucial.

The Racial Discrimination Act and its section 18C help to establish the minimum conditions necessary for that dialogue in Australia. For speech to be truly free, it must be as free as possible of bigotry. For that reason, 18C must be defended.

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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