Group rights are inimical to human rights

Bill Shorten’s 18C zinger is “What exactly does the Prime Minister want people to be able to say that they cannot say now?”

Not exactly a zinger, because a review of the 18C cases reveals mostly a world of trivial sleights and domestic disputes, with the occasional newspaper comment thrown in for good measure.

There is no hint of the tsunami of racism which defenders of 18C allege is waiting to hit our public places should the section be amended or repealed.

These are disputes that should never be allowed to result in litigation, gumming up the courts and diverting some of the best legal minds from much more significant issues.

Here are some things we know you can’t say under S18C because a court has made that determination.

You can’t suggest some fairer-skinned Aborigines game the system, to the disadvantage of other indigenes (Bolt). You aren’t allowed to say "Aboriginal people in their native state are the most primitive people on earth." (Lightfoot)

Neither can a councillor refer to a group of vagrants and suggest they “should be shot” if they happen to be Aboriginal. (Fardig) If you are a state government you can’t issue a direction to your department that the Macedonian language be referred to as the Macedonian (Slavonic) language. (Australian Macedonian Human Rights Committee)

Newspapers need to be careful as this part of a larger comment on a news site “...criminal trash like these young boys” was held to in breach because it referred to a number of young boys who were Aboriginal, even though the commenter didn’t mention race as a reason for saying this. (Clarke)

But it is OK to call someone a “Pom” (Bryant)

And the penalties can be quite high. Southern Cross Broadcasting had to pay $50,000 because Howard Sattler didn’t beep out denigration by a couple of his panellists of Waugyl, an Aboriginal dreamtime creature. (Wanjurri V Southern Cross)

If these are the incidents that get litigated, one would assume that the rest of the complaints are pretty benign.

The truth is that the defence of 18C is based on the myth that Australia is a racist society, and that without legislation like 18C we would drown in racism.

In fact, international polling shows that Australia is one of the most racially tolerant countries on earth.

So it’s not surprising that the trivialities litigated under Section 18C are as bad as it gets. We’re so good at policing these things socially, most abuse is likely to be bad-tempered, on the spur of the moment, and away from the public.

Who can forget the scorn poured out on the 13 year old girl who called Adam Goodes an ape?

Not that all these cases are what I would describe as trivial. Rugema v Gadsten Pty Ltd & Derkes [1997] was a case of serious workplace harassment, and this points to another defect in the legislation.

When it does deal with serious matters, they are matters which would either be described as “harassment” and therefore fall under the government’s proposed reforms, or could be dealt with by laws predicated on one’s rights as an individual and member of society, rather than one’s membership of a sub-group.

Rugema could have been dealt with under workplace laws that didn’t require a race element. Bolt could have alternatively been litigated as defamation, which would have been more appropriate, but introduced a higher bar for the plaintiff to clear. Race was incidental to these cases, not the main factor at all.

Submissions to the Joint Parliamentary Inquiry into Free Speech pointed to an increase in incidents of racial abuse in recent years. While this is subjective, it is backed up by other, more solid research.

The Scanlon Society’s Mapping Social Cohesion National Report claims a more than 100% increase in experience of racial or religious discrimination in the nine years to 2016 from 9% to 20%. And the 2016 Reconciliation Australia Barometer found an increase in the belief that Australia was a racist country from 35 per cent in 2014 to 39 per cent in 2016.

If S18C is a bulwark between us and the racism tide, why is it rising at the same time as 18C is in place?

Could it be that rather than discouraging racism 18C actually encourages it?

What we know of social psychology suggests this to be the case. We know that human beings are “groupish”. Even if we are arbitrarily assigned to a team by something like a coin toss we will readily and quickly start to discriminate in favour of our team.

When you make remedies available to people on the basis of what group they belong to, then not only is it going to make them identify more strongly with that group, but it will also make non-group members differentiate themselves from that group more strongly as well.

And of course once you invent a right, people will find ways to bring themselves under it, meaning a higher level of in- and out-group identification.

Worse, it appears that in fact, amongst all the factors leading us to form groups, race is nowhere near the strongest.

In a 2001 study, Kurzbon et al hypothesise that race doesn’t serve an evolutionary purpose and that it is just one piece of information that we use to make a judgment of someone else. The more information we have, the less important race is.

So if someone is part of your tribe, the less likely you are to judge them by race, because you have other more relevant considerations. A consequence of that must be that legislation that particularises wrongs to just one part of the population on the basis of race is more likely to cause people to use race as a basis for judgment, increasing the likelihood of racism.

Fortunately the real wrongs that can be dealt with under the act don’t revolve around race. It’s wrong for someone to intimidate another person, whether they reference that person’s race or not. And we have laws to deal with that.

Labor appears to understand that 18C discriminates against the broader community - Shadow Attorney-General Mark Dreyfus wants to extend the 18C approach to age, gender, disability and religion – but this multiplies points of grievance, and doesn’t actually fix the problem.

By multiplying the number of tribes who can use this legislation, it makes it less exclusive, and more like a universal right, but this is a cobbled together approach which doesn’t really meet the underlying principle that all men and women ought to be treated equally under the law. Under the you still have to scramble into a tribe to be covered.

Worse, it would import the trivialities that characterise the RDA into other areas of life. If you can’t say in a newspaper article that some aborigines game the system now, what won’t you be able to say about women, Christians, teenagers, swingers or blade runners in the future?

Recently ACTU Secretary Sally McManus said it was OK to break unjust laws. She might actually be on to something. If the courts interpreted an extended 18C as they interpret the current one, many of us would find the only ethical thing to do would be to exercise our right to conscientious objection and break it.

It would be hard to have a proper democratic society, one where all are equal under the law, and debate can take place without unnecessary and unjust restrictions, without doing so.