Today the Guardian hosts a discussion about the proposed changes to Australia’s Racial Discrimination Act. Writer and academic Alana Lentin argues the laws should remain while I state they need reform:
The right to offend is often held up by liberals everywhere as more important than the right to be offended. But posing the problem of protection from racial discrimination in this way suggests that “taking offence” is a choice of the same order as being deliberately offensive.
When Aboriginal people, asylum seekers and other racialised groups are told that those who vilify them in the press – often touting stereotypes and outright lies – are merely voicing their opinions in a free society, their experience tells them that a truly free society would not look like today’s Australia. Democracy exists in name, but systemic inequality makes a mockery of it.
When Andrew Bolt and his political supporters speak of rights, they know as well as any critical legal theorist that rights are far from universal, despite the rhetoric. The message sent to those victimised is “why can’t you just be free like me? Why can’t you get beyond the identity, the difference, that calls for it to be pointed out and ridiculed?” For example, those in favour of publishing the infamous 2004 “Muhammad cartoons” claimed that for Muslims to take offence was ridiculous, as to follow Islam is a choice that could just as easily be renounced. Tell that to any man or woman next time they are suspected of being a Muslim terrorist just because they’re not white.
By repealing the so-called “Bolt laws”, Brandis is not only telling racialised minorities in Australia that the right to vilify them is more important than their right to be protected from racist insults, he is going a step further. At the very least, this ends the duplicitousness of the “antiracist racist state.” However, political point scoring is not a good reason for lauding the repeal.
Some on the (white) left who support Brandis argue that curbing media freedom opens the door to Zionist groups using racial discrimination law to sanction those calling for a boycott of Israel. As a Jew, an Israeli citizen and a Boycott, Divestment and Sanctions (BDS) supporter, I reject this. We must be able to protect those who face the worst racism in our society from the spread of hatred, while at the same time exposing the nonsensical equation of antisemitism and anti-Zionism.
In matters of race, freedom of speech only protects the right of some to offend; and the right of those in power to be offended has, and always will continue to be protected anyway.
The proposed changes by Australian Attorney General George Brandis to the Racial Discrimination Act (RDA) – removing a section that makes it illegal to insult and offend people because of their race – have nothing to do with freedom of speech. Ignore the true believers who say they are.
It displays a selective concern about dissenting views. Sydney University’s Jake Lynch is being taken to the federal court after allegedly breaching the RDA over his support for BDS against Israel, and yet Brandis has said nothing. I would hazard that these ideologues support “free speech” that empowers their worldview, not oppressed minorities. It’s an unsurprising first legislative move by a new government which will do nothing to widen the range of views in the public square.
In spite of this, I believe Brandis’ proposed changes should be welcomed – albeit with clear caveats. I agree with Sarah Joseph, director of the Castan Centre for Human Rights Law, who points out that “there is no human right not to be offended or insulted“. The Centre welcomes the amendments, pointing out they’re consistent with international law, but calls to retain a restriction of intimidation and humiliation over race. The Human Rights Law Centre has also called for reform and not repeal of the RDA.
Section 18c of the RDA, which is set to be amended, was used in the successful prosecution of Herald Sun commentator Andrew Bolt in 2011after he attacked the credibility of Aboriginal Australians. His popular and far from silenced newspaper responded with the front page headline This is a Sad Day for Freedom of Speech. Bolt and his colleagues have suffered no loss or lack of voice ever since.
But the principle is nonetheless important – and section 18c isn’t keeping the racist hordes at the door. Fighting intolerance and discrimination isn’t the job of an ever more powerful state. It must be fought in the public domain while never forgetting the profound power disparity between different individuals or groups. Bolt has the right to express his odious views, but I have an equal responsibility to challenge them vigorously.
In the meantime, if Tony Abbott’s government was serious about strengthen Australia’s democracy, it would improve FOI laws, release basic information about asylum seekers, and reform onerous defamation laws that protect the rich and powerful.