Since the Federal Court found that the racially-charged polemic of Australia’s self-proclaimed “most-read” political columnist, Andrew Bolt, had breached the Racial Discrimination Act, conservatives have rediscovered a zest for human rights otherwise absent from their thinking.
Most righteous of these new champions has been Senator George Brandis who has released plans to replace the current law protecting people from speech designed to offend, insult, intimidate or humiliate them on the basis of ethnicity. Instead, he wants to narrow these protections to clear examples of hate speech and threats of violence – and then exempt almost everyone from this law.
Senator Brandis has released plans to strip back protections against racially charged offensive under the Racial Discrimination Act and replace them with an explicit ban on hate speech and physical threats. He says these are much worse things than were previously mentioned in the Act, which merely protected ‘hurt feelings.’
Of course, the burden of proof for “offence” has always been much higher than hurt feelings. But by the Attorney-General’s own admission, vilification and hate speech should never be a feature of ‘intellectual debate.’ So why does the Abbott Government want to introduce broad exemptions from the law?
Unlike the current law which protects views offered in good faith, the Government’s proposals give people vilifying ethnic and racial groups a free pass as long as they can link their comments to any, “political, social, cultural, religious, artistic, academic or scientific matter.”
That means comments on an online newspaper, political or art blog making incendiary, racist comments. It would include a sign threatening a Jewish group at a neo-Nazi rally against immigration. It’s hard to imagine any conduct that falls outside these exemptions.
Perhaps all of these examples fall into what Senator Brandis had described as the fundamental “right to be a bigot.” He believes that the government should never be in the business of penalising people who hold objectionable views (unless, of course, you’re an artist) in the interests of freedom of speech.
But it is worth drilling down further into the reason that freedom of speech – or rather freedom of political communication – is protected in democratic societies.
Small and big L liberals both worry about the ability of people to live as they wish.
Liberal Party types like Senator Brandis are usually preoccupied with the power of government to constrain the behaviour of citizens. They rightly observe that freedom to speak out against government is protected because the individual needs a means to defend themselves.
But as small L liberals know, government isn’t the only powerful actor in our community.
Businesses decide what good and services consumers can access and how much they’ll pay, unless they are restrained by fair trading law. Large companies have the power to make life difficult for small business, unless they are checked by the ACCC. And it is the great goal of the labour movement to ensure bosses fairly wield their power over workers when they set wages and conditions.
But the greatest and most widespread disparity in power in Australia, as in most societies, is between those who experience social privilege and those who do not.
Privilege is the advantage someone receives by virtue of their identity or situation. They are the expectations about the way the world is and the accommodations made to reflect those expectations. For those who enjoy privilege, they are the bundle of things they usually don’t have to think about.
Examples of privilege are everywhere. Able-bodied people can presume they’ll be able to access any building and not have to check for a ramp or an elevator. Anglo-Australians don’t expect to have their motives questioned by suspicious shop owners when meeting in a mall. Men don’t have to keep their hand on their mobile phone in case they’re sexually assaulted on the way home.
Our society is structured around the universality of an identity that isn’t universal at all. And because it is structured that way, it reaffirms and validates one identity and is indifferent – or worse, hostile – to others. It means that some groups have more than others: more opportunities, more confidence, more resilience. And more power.
When Section 18C was introduced in 1994, it was not in order to eliminate racist attitudes. Bigots are those people so blinded by hatred and so convinced of their position that neither law nor rather argument can dissuade them. Section 18C is designed to recognise and provide recourse for racism.
Section 18C is an attempt to address the power imbalance that exists between those who are structurally vulnerable and those who, from a position of privilege, attack people on the basis of the very characteristic that makes them vulnerable. No wonder those groups which are confronted with their difference every day know that Section 18C provides an important means of protection.
They know this kind of language can intimidate, causing people to be scared of identifying with or expressing their culture – a much more pronounced version of the “chilling” of free expression to which Senator Brandis has been eager to pay lip-service. It can cruelly and unjust curtail the free speech of the least powerful people in our community.
Senator Brandis isn’t just facing opposition from ethnic communities. Members of his own party room are speaking out against the changes, even threatening to cross the floor.
Maybe it’s because they understand that the very principle that leads Liberal members to want to uphold protections against the power of government is the principle at work in the Racial Discrimination Act. It’s about protecting people from privilege.
And it is a pity that the reconstructed humanitarian in the Attorney-General’s portfolio has decided that his sole policy contribution on coming to Government will be to give the green light to hate speech.
Lisa Singh is a Labor Senator for Tasmania and is the Shadow Parliamentary Secretary to the Shadow Attorney-General.