What can we all agree on in the debate about racially insulting language?

In this legal perspective on the proposed changes to the Racial Discrimination Act, Rik Sutherland from St Vincent de Paul deconstructs the arguments on both sides and suggests a way to move beyond entrenched positions.

At present, the Racial Discrimination Act makes it unlawful to offend, insult, humiliate or intimidate another person because of their race, colour or nationality.

As well documented by the media at the time, on 25 March 2014, the Attorney-General, Senator the Hon George Brandis QC, released a draft Bill seeking to change this. Brandis’s changes would make speech unacceptable if it incites hatred of, or intimidates, a person on the basis of their race.  It also argues that whether an act is ‘reasonably likely to have the effect’ should be determined by the standards of ‘ordinary people’ – not by the standards of any particular group (i.e. those who have been discriminated against).

This move was a response to the Andrew Bolt case, in which the court found that Bolt had breached the Act by claiming that some self-identifying Indigenous Australians with fairer skin were not genuinely Indigenous. Rather, he claimed, they were using their Indigenous status to leverage career opportunities provided by affirmative action. In this post, I reflect on these issues from a legal perspective. The question of whether offending people should be unlawful is a complex one.  In considering it, I have found the framework used by Arnold Klig in The Three Languages of Politics helpful. On the one hand, it can be seen as an argument about freedom: that people should be essentially free to do and say as they please, including use racist language, and that government restrictions on this freedom should be absolutely minimal. On the other hand, a progressive analysis might see racially insulting language as a (re-) enactment of the oppression of certain groups within our society by other groups, where government intervention to redress this injustice is warranted. Then (although it stretches Klig’s categories), there might be a personal responsibility argument, which could place emphasis on the fact that an individual’s emotional reaction to humiliating words is ultimately their own concern, and people who are intimidated by racist words are being overly sensitive and ought to harden up and get over it. Within each of these lenses, there is a certain internal logic; within each paradigm, we can see that the argument makes some sense.  (It may be important to recognise this if we are to have a conversation that doesn’t devolve into straw-man arguments and then accusations of being mad, bad or stupid.) However, none of the three paradigms alone really solves the theoretical question about this issue. They don’t provide a complete answer to this policy question. The libertarian must explain why – if free speech is so important – Australians don’t have a legal right to it, and how come our speech can be legally constrained in so many other situations.  These include defamation law, censorship, copyright law, criminal assault (threatening harm on someone), various rules against revealing secure/confidential information, swearing in public, and the law against deceptive conduct in trade.  There is also no evidence that this section of the Act (s18C) had been being used in a way that seriously restricted anyone’s liberty to begin with. The progressive must explain how, if it is unlawful to say something that someone else claims they find offensive, we aren’t moving the oppression from one person or group onto another (as Bolt claimed had happened to him).  It might risk defeating those very progressive goals if the interest of one person not to “feel insulted” were promoted above the interest of another person to express legitimate opinions on public matters. Finally, the argument that focusses on personal responsibility must address why society should tolerate intensely humiliating verbal abuse of one individual by another, but even mild physical abuse is criminal.  Exactly what is the point at which society will step in and protect a vulnerable individual, even if (within this paradigm) the individual has chosen to be vulnerable? How can we form any sort of consensus about this question, when the arguments sit within (at least) three opposing value-frameworks?  To my mind, there are four points we might all agree on. First, I think we need to acknowledge the fact that racial discrimination in Australia is prevalent, and increasing, and agree that something does need to be done to address it. Secondly, the question of “harm” caused by racially offensive speech needs to be addressed.  How much harm – to the individual, and society – is truly caused by this intimidating racist language?  And how do we measure this harm?  Like the impacts of gendered speech, the impacts on how individuals see themselves and the world are likely to be subtle, but deep. Thirdly, we must recognise that individual legal sanctions are one tool among many to changing negative outcomes.  For example, we might also look at increasing school education around human rights and tolerance, to empower all children to respect each other’s differences. Finally, in the discussion about what to do, all voices and opinions must be heard.  While there seemed to be no consultation with the community before the current amendment was announced, the government inquiry into the proposal has received a vast number of submissions, a majority of which raise serious concerns with the change in law.  It will be interesting to see whether there is a report that comes out of this process, and if so how it synthesises these community views with those of government. Recent media has certainly suggested that the Attorney-General is considering watering down the amendment as a result of community pressure. The ultimate question is again one that cannot be answered here:  what sort of Australia do we want to live in?  Perhaps one where the privileged have untrammelled freedom to abuse the marginalised.  Perhaps one where we can blame hurt people for their own suffering, while kicking at them from our place of entitlement.   Or perhaps, just perhaps, one where a mild civil law makes it clear that offending, insulting, humiliating, or intimidating other people on the basis of their racial background is unAustralian, and unacceptable.

Rik holds a BA/BSc (Spanish/Psychology) from the University of Adelaide, and a Juris Doctor and GDLP from the ANU.  After graduating, Rik spent a year as associate to Justice Hilary Penfold in the ACT Supreme Court.  He is currently Legal and Research Officer at St Vincent de Paul, providing legal and policy advice to the National Council. Rik is currently completing his Master of Law at Melbourne University, focussing on international law and human rights.   Posted by Kathy Landvogt