Sections 18C and 18D of the Racial Discrimination Act are back in the public debate. 18C makes it unlawful for a person to do something which would be reasonably likely to offend, insult, humiliate, or intimidate somebody on the grounds of race, colour, nationality, or ethnicity. It’s partnered with 18D which provides exemptions from 18C if the act is done reasonably and in good faith for purposes including art, science, or just contribution to public debate. The two sections work together harmoniously: if I want to disrupt your enjoyment of living in the greatest country on Earth on the grounds that you’re a different race, I need to have a good reason for doing so. You should not have to tolerate unreasonable attacks because racists exist in the world.
Early 2014 was dominated with discussion about the Racial Discrimination Act until the Abbott government dumped amendment proposals for the sake of preserving “national unity”. For now, Australians did not have the right to be a bigot. With the 40th anniversary of the Racial Discrimination Act being celebrated with a conference this year, it was only a matter of time before the debate reopened. But Senator Cory Bernardi beat them to the punch arguing, following the 7 January shooting of Charlie Hebdo staff, that freedom of speech should not be curtailed by particular groups’ sensitivity to criticism.
Supporters of the Racial Discrimination Act, like the Racial Discrimination Commissioner Dr Tim Soutphommasane, argue that the current criticism is irrelevant because 18C is about race and not religion:
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.
As an atheist and a supporter of 18C and 18D, this sort of response worries me. Why shouldn’t 18C apply to acts that would be reasonably likely to offend, insult, humiliate, or intimidate on the grounds of religion? Doesn’t the distinction drawn here seem uncomfortably pedantic and small?
Imagine that there are two buses. On one bus, an Arabic family is verbally abused for being Muslim. On the other, a Muslim family is verbally abused for being Arabic. Both are filmed with a shaky camera phone and uploaded to YouTube on the same day causing yet another national debate.
It seems odd to think that one kind of verbal abuse is worse than the other simply because one is motivated by race while the other is motivated by religion. It seems unsatisfying to think that these two events would be treated differently under our legal system. It seems flatly weird that somebody could argue that section 18C should cover one but not extend to the other. What actually distinguishes one from the other?
As a society, we are unusually relaxed about prejudice on the basis of religion. The most progressive anti-racist will erupt in slackjawed guffaws when presented with lazy attacks on religion. Mediocre comedians and public pseudo-intellectuals have made entire careers out of lazy digs about the religious. It’s only possible because we consider attacks on religion to be fair game but attacks on race to be outside civil discourse.
Is it because we think that people can change their religion like we change our clothes? That religious belief is an optional extra, extrinsic to a person in a way that race is not? These childish, Dawkinsesque attitudes towards religion suggest that it’s okay to unreasonably and unjustifiably attack somebody just because they chose to be a target by having a religious belief. The Refugees Convention includes persecution for religious belief to be a ground for claiming refugee status; perhaps somebody should let these refugees know that they would stop being persecuted if they’d only just change religion.
Part of the resistance to extending 18C to cover religion must be a fear of secretly instituting blasphemy laws. As an atheist, I celebrate the progress society has made in its struggle against the awesome, oppressive power religions have had over society, especially in government; opening a pathway back to draconian blasphemy laws is clearly not in my interest. And if I needed more of a reminder about that, Raif Badawi was just this week whipped for running a website devoted to freedom of speech.
But there is clearly a large gap between protecting people from unreasonable and unjustifiable attacks and whipping people for blasphemy. If we are going to be a mature, inclusive society, we shouldn’t demand that people tolerate unreasonable and unjustifiable abuse. At the same time, clauses like 18D protect good faith criticism. The balance that we see so perfectly in the Racial Discrimination Act could – and should – be made to work for religion.
If Tim Soutphommasane wants to be an advocate for 18C and 18D, he needs to stop relying on technical errors in opponents’ assertions and start championing the bigger picture: members of our community should not have to endure unreasonable and unjustifiable abuse. Distinctions between religion and race does nothing but pander to the Islamophobes.