Quick Post: Why @timsout is wrong about the application of RDA s18C to #CharlieHebdo

Dr Tim Soutphommasane is Australia’s Race Discrimination Commissioner — an appointment which caused rather a stir at Senate Estimates — and, as such, has an unenviable role participating in the discussion of s18C and 18D of the Racial Discrimination Act.  People who’ve followed my writing over various platforms know how much I love these sections.  So much so that on a recent flight, my partner noted that we were sitting in seats 18C and 18D.

Let’s quickly go back over the text of s18C and 18D:

18C  Offensive behaviour because of race, colour or national or ethnic origin

             (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.

Note:          Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

             (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.

18D  Exemptions

                   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.

The two clauses together create a beautiful tension between individual freedoms and communal responsibility.  We create rights for the sake of enjoying the fruits of civilisation; if you want to interfere with somebody else’s ability to enjoy those fruits (by offending, insulting, or humiliating them) then you need to have a good, rational reason for doing so.

Lots of people don’t like this.  From the libertarians who want all speech to be without impediment, through to the racists who feel that their ability to say racist things will be impeded, through to the left wingers who want ‘pub test’ standards for appropriate speech.  The ‘race’ aspect is, in a sense, a secondary question: should speech be limited by the threshold of offence?  Isn’t the freedom to express an opinion the same as the freedom to offend?

Following the Charlie Hebdo assault, we have entered another discussion (of dubious quality) about freedom of speech.  This time about whether or not we have the freedom to offend people on the grounds of their religion.  Cory Bernardi — the Liberal Party senator who sponsored a visit to Australia by Dutch racist Geert Wilders — has stated that the attack in Paris should reopen the conversation about the limits imposed on free speech by s18C.

The ‘race’ aspect to this conversation — as framed by the key players — is irrelevant.  The key issue is whether or not we should have the right to offend people on any issue (race and religion included).

Dr Soutphommasane has been at pains to tell anybody who will listen that the conversation as framed by the key players is wrong:

Michael Sexton (“Those who say they are Charlie …”, 12 January) argues that section 18C of the Racial Discrimination Act restricts debate on political and social questions, including the criticism of Islam. It is wrong to imply that the terms of the Act extend to debates about religion, religious identity and religious belief. Section 18C applies only to race, colour, ethnic origin and national origin. Religion is not covered. In any case, section 18D protects artistic work and fair comment on matters of public importance. Such speech, even if racially offensive, is exempt from section 18C, provided it is done reasonably and in good faith.

Dr Tim Soutphommasane
Race Discrimination Commissioner
Sydney [Source]

This isn’t a helpful contribution to the debate.  If anything, it muddies the water with pedantry.  The conversation about s18C is whether or not people’s offence is a relevant consideration when limiting the freedom of speech.  The conversation about s18D is whether or not judges should be put in the position of ‘gate keeping’ free speech, deciding what speech is done reasonably and in good faith.  When we need somebody to stand up and argue the merits of s18C and 18D, we need somebody who is going to do more than correct the technical points.  We need somebody who’ll get to the guts of the debate and lead the discussion.

As it stands, Soutphommasane isn’t even technically correct.  Islam is presented in a stereotypically racist way with particular focus on Arabs.  If you wanted a fairly safe ground on which to stand, you would argue that some of the cartoons in question were designed to offend and humiliate Arabs.  In the language of the racist ignoranti, ‘Muslim’ and ‘Arab’ are synonymous with the cartoons not depicting much that’s specifically religious (except that it’s supposed to be the Prophet) and more that is characteristically Arab.

If you wanted a more satisfying and interesting argument, you could argue that the Racial Discrimination Act doesn’t define ‘race’ and that the case law on the question is so sufficiently broad that a particular attack on Islam — especially one that focused on the Arabic presentation of the religion — might satisfy an attack on the grounds of race.  In Australian law, we know that the word ‘race’ does not signify a biological aspect but something more complex.  In the Tasmanian Dam Case, it was held that the word ‘race’ had a ‘wide and non-technical meaning’ (Deane J, for the nerds).  Unsurprisingly, most of the conversation about ‘race’ has been with regard to Aboriginal Australians.

Is it open to the court to interpret race broadly enough to include certain aspects of Islam?  Or, rather, could an attack on Islam be made in such a way that it could be considered racist by a court?

In New Zealand, the world is even more murky.  A race is:

a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.

Customs, beliefs, and traditions moves us distinctly into the world of religion especially if (as many would claim) they hold particular religious beliefs because their parents held those beliefs because their parents held those beliefs, &c., &c.

The traditional puzzle for racial discrimination acts is Antisemitism.  Is ‘Jew’ a race, ethnicity, or a religion?  The answer to that has always evaded strict definition, mostly because there is nothing positive to be gained from defining it too closely.  The 2005 CERD case of The Jewish community of Oslo et al. v. Norway skirts around whether or not ‘Jew’ is a race.  Antiziganism falls into a similar category: in A. S. v. Russian Federation, CERD used language of ‘xenophobia’ alongside ‘racism’ to note ‘group defamation’ against gypsies (although the case itself was considered inadmissible for technical reasons).

The distinction between ‘race’ and ‘religion’ is increasingly irrelevant.  It makes little sense to say, ‘Because the object of my derision is a religion and not a race, my behaviour is acceptable.  I admit totally that if the object were a race, then my behaviour would deserve condemnation.’

By playing into the ‘Islam is a religion, not a race!’ rhetoric of xenophobic bigots, Soutphommasane has left supporters of s18C and 18D high and dry.  It doesn’t matter that Islam isn’t a race; we need to strike at the heart of why s18C and 18D are expressed the way that they are and whether we think that people should be allowed to offend others for fun (or, in the case of Australia’s trollumnists, for profit).

Supporters of s18C and 18D deserve better.

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