Aussie hate-speech laws: no dissent allowed

The Australian government is currently trying to amend Section 18C of the Australian Racial Discrimination Act 1975 (RDA). This is the section which asserts that speech content, judged objectively after the event, must not 'offend, insult, humiliate or intimidate another person or a group of people'. Sadly, what is noticeable about the debate so far is the tendency of those in favour of S18C to ignore or treat with contempt the idea of free speech. Below are 10 ways in which those advocating S18C and hate-speech laws in general are dodging, stifling and running away from the debate.

1) Reliance on abstractions

All censors abhor definite standards. Vagueness is always to be preferred. In times past, it was the elastic tendency-based criminal law of sedition, blasphemy, defamation and obscenity. Nowadays, the obscurantism is expressed in two words, 'hate speech', to which an 'identity-specific' adjective such as 'racist' is applied. Yet apart from Holocaust denial and exhibitionist displays of racial prejudice, particularly at sporting events, on public transport and, more widely, by electronic means – both of which are instantly recognisable – no exact definition of racist hate speech is proffered. As with hardcore pornography, we are all expected to recognise it when we see or read it.

As Eatock v Bolt (2011) and Clark v Nationwide News Ltd (2012) demonstrate, the vagueness of S18C operates to restrict public discussion in controversies about 'race, colour or national or ethnic origin of [persons or groups]'. The supporters of S18C happily proclaim the discretionary flexibility of the formulation 'offensive, insulting, humiliating or intimidating' speech as S18C's great virtue. The context in which the section is defended is characterised by the use of fashionable but unenlightening abstractions, most notably: 'diversity', 'harmony', 'inclusion', 'respect', 'dignity', 'marginalisation' and 'cultural sensitivity'. The censor's obscurantism is buttressed by demands that 'systemic', 'unconscious' or 'normative' racism must be stamped out. When Paul Keating's Labor government introduced the bill for S18C in 1995, the rationale was that racist speech was a form of violence which could be more harmful than physical violence.

The propositions that you can be a racist without knowing it, and that words can, as it were, break your bones (and spirit), are surely in need of debate. But instead of being up for debate, these ideas are treated as doctrinal. Moreover, the all-pervasive vagueness attaching to the words 'racism' and 'racist', and the relative ease with which accusations of racism are made, have debased both words. The proponents of S18C censorship bear the burden of identifying exactly what it is they say should be censored. Their rationale for doing so, however, remains an enduring mystery.

2) Ignore one awkward concrete problem

There is another category of 'racist hate speech' which extends the reach of S18C. It is interpreted by the Australian Human Rights Commission (AHRC) as applicable, selectively, to ethno-religious speech conduct. It is only recently that the archaic Christianity-specific common-law prohibitions on blasphemy have become obsolete. This reflects the reality of the secular state: there should no legally privileged categories of ideas and especially no entanglement of the state in religion. The suggestion that, in order to avoid hurting another person's religious sensibilities, an individual should be compelled to display 'respect' for a religious belief or practice – or the concept of religion itself – which that individual may regard as rank superstition, or that an attack on a religious idea or practice in itself amounts to racism, is profoundly anti-democratic, no matter how much it is dressed up in secular pieties about 'inclusion'.

However, S18C and some Australian state legislation have, in effect, resurrected a statutory form of blasphemy. In an address to the United Nations in December 2012, then Australian prime minister Julia Gillard asserted that 'denigration of religious beliefs is never acceptable'. That 'never' is by far the most telling recent illustration of the nature and extent of the contest between a defence of the general right to dissent and those who seek state-backed conformity in public discussion.

3) Portray S18C as a protective law

Most S18C advocates emphasise that it is designed to protect minorities, although S18C makes no such distinction. However, even at that disingenuous level, the claim is no more than wishful thinking. Nobody seems to be suggesting that the civil liability imposed by S18C (and its capricious enforcement) has deterred a single person from resorting to Holocaust denial or racist mouthing-off in public. Yet, simultaneously, its supporters trot out the arguments that S18C is little used and that its real utility is symbolic. So much for protecting minorities.

4) Fearmongering about free speech

There has been plenty of hyperbole. If enacted, attorney general George Brandis's proposed reforms to S18C would usher in a 'licensing of hate', 'give succour to racists', and be the end of multiculturalism, nay, the end of Australia as we know it. Australia's race discrimination commissioner went far beyond hyperbole, even, when he said that S18C guards against a repetition of the Holocaust because'genocide begins with words'.

5) Misrepresenting the general law

If S18C supporters exaggerate the so-called free-speech protections in S18D of the Racial Discrimination Act (which stipulates that comments made in good faith are permissible as expressions of genuine belief), they fundamentally mis-state the law of defamation and they ignore altogether the torts of intentional and negligent infliction of emotional distress. They thereby disregard regimes of legal protection for actual psychological harm which apply without regard to 'race, colour or national or ethnic origin'.

6) Make no concessions

Although the pro-S18C camp is full of acknowledgments that freedom of expression is important, there is a striking absence of any acknowledgment that dissent is central to securing that freedom. One way of testing this is to do a word search of 'dissent' on the online archive of AHRC publications, in surveys of social cohesion, or in the vast literature on Australian multiculturalism. As soon as the AHRC acknowledges that dissent – real dissent – is necessary to maintain the health of a free and open society, it undermines its commitment to special legal protection for privileged categories of controversial public debate. It is locked into this position largely because the concept of cultural diversity and sensitivity calls for treating all 'cultures' (or at least the privileged minority cultures) as worthy of equal 'respect'. The end result is that discussion – for example, of barbaric cultural beliefs and practices (including selected religious ones) – is frowned upon for fear of 'offending' adherents and being 'divisive'. This is not all that surprising. S18C is designed to suppress dissent which, by definition, is often offensive, insulting, humiliating and intimidating. Dissent brings about division, disrespect, disharmony, incivility, indignity and so on – all of which are, in theory at least, anathema to inclusiveness theory.

7) Except the 'Irish jokes' concession

Then there is the 'curiouser and curiouser' dimension of the S18C debate; that is, the unexplained acknowledgment that there are tolerable forms of public racist speech. What are we to make of the endorsement by the AHRC in its submission to the attorney general's S18C consultation of the following statement in the Report of the National Inquiry into Racist Violence (1991)? 'No prohibition or penalty is recommended for the simple holding of racist opinions without public expression or promotion of them or in the absence of conduct motivated by them.Nor would any of the proposed measures outlaw "casual racism", for example the exchange of "Irish jokes".' (My italics)

Putting to one side the unexplained concept of 'casual racism', what moved the AHRC to use 'Irish jokes' to exemplify permissible casual racism? The Irish ambassador to Australia recently complained about the casual stereotyping of national groups in the Australian media and managed to extract a prompt apology from the Fairfax Media group (the Sydney Morning Herald and the Age), which, in an odd role-reversal for the Fourth Estate, is at the forefront of the pro-S18C censorship campaign.

8) Remind the majorities that 'they just don't understand'

And then there are the angry ad hominem contributions to the 'non-debate'. The attorney general's draft proposal for the amendment of S18C contains a provision which would impose limited civil liability according to an objective test applied by reference to 'the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community'. This type of standard is entirely coherent and well-known – for example, in the law of negligence and defamation. Many in the pro-S18C camp have denounced this because, so it is said, only the victimised minorities are capable of understanding what it is to endure racist hate speech and suffer its unique psychic harm. This is a claim that is calculated to stifle debate.

9) Invoke White Australia policy

A harsher variation of the ignorance trope is advocates of S18C invoking the unedifying history of the White Australia policy (discontinued a half-century ago). The objective is clear: to signify that present-day, ordinary, reasonable (white) Australians are still not to be trusted.

10) Argue that the White majorities are ignorant

A more confrontational version of the 'majorities are ignorant' thesis is the claim made by one prominent commentator in the Age that there are two types of Australians. The first group consists of the privileged Anglo-Saxon folk who regard being 'Australian' as something in respect of which they have a superior claim. The rest are the supplicant subordinated non-white folk. It is the 'whiteness' of the ignorance of the former group, sitting at the top of an alleged Australian racial power hierarchy, which precludes them from telling people what they should and should not find racist. The link to this contribution has been conspicuously displayed on the Age since it first appeared in print on 27 March 2014. It might be thought that, to date, it is the standout candidate for the award of unintended irony in the S18C controversy. Yet there has to be space for statements such as these (and for that matter, the denigration of the Irish by the AHRC) if free speech is to have any real meaning. These statements do at least stand in striking contrast to the speech-stultifying mush being preached in the name of 'harmony', 'inclusion', 'identity', 'respect', 'dignity', 'civility' and all their soothing synonyms.

Those supporting the repeal of S18C are having to withstand sustained heckling, including from what passes for the Australian left. The attorney general, they say, will abandon his proposed amendment or be rolled in his party room. In contrast, the most powerful case against the neo-puritan whingeing that propels hate-speech censorship has come from a small minority of outspoken indigenous Australians. 'People have a right to decide for themselves how they feel about the idea of "race" and racism', writes Kerryn Pholi, an Aborigine and former social worker. 'In order to do that, they need to be free to exchange ideas about these matters, and this includes the freedom to say whatever they like - however ugly - about people like me.' Now, that's diversity.