In ABC’s The Drum yesterday, Margaret Simons continues to make very strange comments about section 18C of the Racial Discrimination Act. Admittedly, Simons is known for making strange comments in this space, having once championed a ‘Pub Test’ for newspaper content: if you can hear it opined in a pub, you should be able to read it on the front page of a newspaper.
I even agree with Abbott about the obnoxious nature of Section 18C of the Racial Discrimination Act, which was used against an Andrew Bolt column. The Bolt piece was a nasty and sloppy piece of commentary, but it should not have been illegal [sic]. [Source: Simons, ‘Media regulation: Abbott speaks sense and nonsense‘, ABC The Drum]
Simons — along with people like Jonathan Holmes, Chris Berg, the IPA trolls, and Tony Abbott — are outraged at the idea of a ‘hurt feelings’ test. 18C makes it unlawful to be frank and fearless with your freedom of speech which, of course, must be identical to the freedom to offend. The assumption is that 18C of the Racial Discrimination Act is a way for people with thin skins and hypersensitivity to silence people who make them cry.
Utter, utter nonsense.
Let’s go back to the Act itself:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place. [Source: Racial Discrimination Act 1975 (Cth) s18C]
So there are two prongs to an unlawful act under 18C. First, you perform an act in public which a reasonable person would think is likely to upset a person or a group. Second, the act is motivated by the ‘victim’s’ race or ethnicity, &c.
It’s not just a hurt feelings test. It’s a ‘don’t be a jerk’ test. Unlawful acts are only those which are reasonably likely to upset somebody and which are motivated by race/ethnicity.
But that’s not even the full story. Check out 18D:
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) 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
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment. [Source: ibid. s18D]
Where 18C outlines what an unlawful act would be, 18D provides a defence for upsetting a person (or group of people) based on the colour of their skin. 18C and 18D together say, ‘People shouldn’t feel humiliated for the colour of their skin and, if somebody does humiliate them based on the colour of their skin, they should have a really good reason for doing so.’
There’s an important underlying philosophy to 18C and 18D. We are supposed to live in something like a ‘Republic of Reasons’. In order for me to do some harm to you, I need to have your permission or a really good reason to do it. For our social order to function, we rely on a problematic notion of consent to inform the extent to which one person interacts with another. This is what’s being reflected in 18C and 18D. People of all skin colours should be able to enjoy the fruits of civilisation without being subject to ridicule and humiliation. And if they are ridiculed or humiliated, there better be a damn good reason for it.
The real question here is not whether 18C goes too far. The question is whether it goes far enough.
Simons is correct when she says Abbott makes sense in places, she just incorrectly identifies those places. As I’m an atheist, it will probably shock readers to know which part I think he gets correct:
If it’s all right for David Marr to upset conservative Christians, why is it not all right for Bolt to upset activist Aborigines? [Source: Tony Abbott ‘The job of government is to foster free speech, not to suppress it‘ The Australian]
The question (if questions can have a truth-value) is correct. Why is it all right for David Marr to upset conservative Christians? If we apply the same reasoning from before (about being in a Republic of Reasons) then there should be some good reason for Marr to ridicule or humiliate a section of society based on their religious beliefs. Indeed, that goes for a lot of the pop-atheist crowd who seem to think they’ve got some God-given right to ridicule and humiliate Christians just because they have different beliefs.
You could argue that people choose their race but don’t choose their religion. Not only is this naive (most people don’t choose their religion) but it also fails to grapple with the point. Why does choice matter? Why shouldn’t people be able to choose what they like without being ridiculed or humiliated for those choices? I’m on ‘Team Non-Biologically Determined’ when it comes to the question of sexuality, but I’m also on ‘Team If You’re Attracted to The Same Sex but Don’t Have the Gay Genes You Have Made An Awesome and Perfectly Legitimate Choice and Nobody Should Question Make You Feel Bad for That’. It’s not choice vs non-choice; it’s respect vs disrespect at play here. In a sense, opponents of 18C are asking us to respect the choice of people to humiliate and ridicule others based on their race. People who don’t want to extend 18C to religion are similarly asking us to respect the choice of people to humiliate and ridicule others based on differences of belief.
Which brings us back to Simons. Simons believes that we should have legislative room to be disrespectful to each other without the consent of the person being harmed. She couches this in the entitled and undergraduate language of ‘freedom of speech’. It is clear that, if we want to live in a Republic of Reasons, we need a more mature model of this freedom, especially when it affects the apparent right of others to engage in society unmolested.