Sections 18C/D read like they were written by a parent who wants to be seen as stern yet laidback.
Twenty years after saying we were being “swamped by Asians”, Pauline Hanson used her maiden speech in the new Senate on Wednesday to warn us that we’re being “swamped by Muslims”.
Her remarks remind us of the time when we saw “Whip Wogs” spray-painted on the side of a tin shed in a paddock in suburban Oakleigh, then and now home to many migrants. And although it was the year in which the Racial Discrimination Act was introduced by the Whitlam government, the xenophobic remark remained in full public view for years as a reminder of the place of southern European migrants in the Australian cultural hierarchy.
About a decade later, we noticed the same phrase scrawled on a wall somewhere in Footscray, although this time the word “wogs” had been replaced with “Asians”.
Unsurprisingly, those who hold the whip hand call for the repeal of Section 18C of the Racial Discrimination Act. But as members of a minority (one of us a wog and the other is gay), we’re also calling for amendments to the act.
Section 18C makes it illegal to say something that is “reasonably likely” to “offend, insult, humiliate or intimidate” someone on the basis of their “race, colour or national or ethnic origin.” Though often forgotten about, section 18D provides exemptions for “anything said or done reasonably and in good faith” such as that done “in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest” or “fair comment”.
Sections 18C/D read like they were written by a parent who wants to be seen as stern yet laid back; stringent yet laissez-faire; dour yet cool. But as most parents know, you can’t have it both ways.
The problem with Section 18C is nobody really takes it seriously. We know this because those who defend it say so. We’re often reminded it is ineffective, obtuse, and encourages spurious complaints as evidenced by fewer than 3 per cent of complaints ever making it to court.
We need to get over the idea that Section 18C protects minorities. All it has really done is treat adults in racial minorities like children incapable of speaking up for themselves.
We’re told that Section 18C serves as an important symbol, reminding us to play nice as if society was a schoolyard. But for any symbol to be effective, it needs to be clear and unambiguous. So we better get the wording right before we start wagging our finger.
The words “offend, insult, [and] humiliate” are the problem. They’re too subjective.
One approach to make the wording less ambiguous, suggested by Australian federal court judge Ronald Sackville, is that the words “offend, insult, [and] humiliate” be replaced with “degrade, intimidate or incite hatred or contempt”.
No one should be degraded or have their physical safety threatened, and inciting hatred presents too great a risk of violence. At the same time no one has the right to not be offended, and free speech isn’t really free unless it includes the freedom to offend. It would be nice if we all refrained from saying things that offend and insult, but permitting people to do so is fundamental to liberal and open societies.
Besides, what offends one doesn’t necessarily offend another, because offence is always taken, not given. The marginalised don’t need protection from words, they need more opportunities to voice their own.
It’s also not just that everyone should have the right to speak, it’s that the rest of us have the right to listen and understand. That includes exposing the ugly side of our society, so we can respond to it.
Political discourse in Australia too often relies on appealing to people’s emotions rather than their reason. Refugee advocates focus on children, as if the lives of adult men and women aren’t as relevant or important; LGBTI advocates focus on the divisive nature of a plebiscite, as if people from the LGBTI community haven’t heard all the homophobic arguments before. And we focus on the supposed psychological harm to racial minorities caused by words, as if people in racial minorities weren’t disadvantaged or dying from social and healthcare inequities.
As demonstrated in the Senate on Wednesday, free speech can be ugly. But it’s what distinguishes us from censorious regimes. Rather than telling bigots, “You can’t say that”, we should be saying, “We hear you. We disagree with you. Here’s why.” And we will do our very best to talk you out of talking nonsense, but we will not stop you from talking it, because all bigots, not just privileged angry white heterosexuals, should be free to make fools, not martyrs, of themselves.
The Greens Senators who staged Wednesday’s walkout best serve minorities by allowing them to reply in any manner they see fit, irrespective of whether their words offend or insult. And these senators can begin by calling for an amendment to a law that instructs us to play nice even when others are not.