Section 18C is no threat to freedom of speech

AAP photo

 

By

Rupen Savoulian

As Australians, we should be thankful for the government of Prime Minister Malcolm Turnbull. The PM, in cooperation with other ultra-right politicians, anti-immigrant xenophobes and the NewsCorp media empire, have highlighted the reason why all of us are groaning under the weight of a tyrannical dictatorship curbing our freedom of speech.

The other, trivial issues – such as housing affordability, climate change, increasing homelessness, widening economic inequality, the deterioration of public services – all pale into insignificance in contrast to the most damning piece of legislation on the books today. This law, derived straight from the Kremlin-Bolshevik playbook, and one that requires immediate governmental attention is – Section 18C of the Racial Discrimination Act.

Jacqueline Maley, writing in that media mouthpiece of loony, left-wing Bolshevik-Leninism – the Sydney Morning Herald – states that with the repeal of Section 18C, we will be able to racially taunt and vilify any ethnic group that we wish. If any ethnic minority is offended, well, they are just being snowflakes and will have to suck it up. Free speech is free speech, is it not? As Maley stated in her article:

 

My opinions as a white, non-Muslim woman who has never read the Koran, and who already has a platform in a mainstream media organisation, will finally be let loose. Unfettered and free.

 

We might require a better idea of the kinds of freedom of speech that are necessary in a world unhindered by those suffering under the tyrannical imposition of Section 18C. Richard Ackland, writing in the Guardian newspaper, wrote about the experiences of Maxine Beneba Clarke, an African Australian writer currently residing in Melbourne. She wrote in her book that one fine day, while walking her five-month old baby in a pram, one gentleman pulled up in his ute, wound down the window, and offered the following sterling gem of free speech:

 

Go on, fuck off. You make me sick, you fucken black slut. Go drown your kid. You should go drown your fucken kid. Fuck off will you.

 

We can also research the experiences of the Lebanese Muslim Association, a mainstream Muslim organisation based in western Sydney. During the debate about Section 18C, community groups were asked to make submissions to a parliamentary enquiry on the subject. The LMA, as part of their contribution, constructed an amalgam of the comments they receive everyday through social media platforms, as part of the free exercise of free speech by Australian citizens. You may find the collage of commentary on their Facebook page.

The LMA submitted their contribution for this parliamentary enquiry. Let us review a small portion of the comments they receive in the course of one day. One commenter, upon seeing a group of Muslims praying, commented that ‘the things u c when you don’t have a chain gun’. One person, using their impressive detective skills, opined that ‘Wonder how many terrorists or child molesters there is. This is our country if you don’t like our way go back to where you came from.’ Another person helpfully suggested a technique for dispersing the prayer group – ‘Water balloons full of pig piss.’

One of the main proponents of repealing Section 18C is ultra-right wing free-market fundamentalist Senator David Leyonhjelm. The latter has used his position of parliamentary privilege to loudly denounce this provision of the Racial Discrimination Act as a restriction on free speech. He defended, for instance, the Wicked Campers business to drive around with slogans on their vehicles such as: ‘A wife: an attachment you screw on the bed to get the housework done.’ He declared that free speech is free speech; and those who were offended just had to suck it up.

Well that is interesting, because the comedic team The Chaser, drove up outside the Senator’s house with a slogan on their vehicle: “The best thing about oral sex from David Leyonhjelm – 5 minutes of silence.” Perhaps the good senator did not see the funny side, or perhaps he did not understand the joke. He came out of his house, told The Chaser team to ‘fuck off’ and threatened to call the police. Maybe Senator Leyonhjelm does not understand the concept of unrestricted free speech, because, after all, he is a descendant of non-English speaking migrants, and these emigrants requires schooling in Australian values.

 

 

Section 18C – but also consider Section 18D

 

Section 18C of the Racial Discrimination Act is only brief, and it states that it is unlawful for a person to perform an act that is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group of people on the basis of race or ethnic origin. You may read the entire section here. This section was introduced in 1995, twenty years after the original Racial Discrimination Act. Why? Australia was aligning itself with important international treaties; the International Convention on the Elimination of all forms of Racial Discrimination, and the International Covenant on Civil and Political Rights.

Since this section was introduced, it has been subjected to a sustained, sometimes intensified, sometimes moderated but always persistent, campaign to repeal it. This campaign, part of the culture wars of the conservative Right Wing in Australia, has been deceitfully framed as a defence of free speech. The concerns evinced about the impact on free speech are perverse and disingenuous. Disguising a sordid campaign to remove racial discrimination provisions in a noble wrapping is part and parcel of the Murdoch media empire, NewsCorp, and its political partisans in Australia. Changing the racial discriminations provisions will only result in making bigotry ‘great again’.

In 2011, the repeal campaign intensified when Andrew Bolt, one of the most outspoken literary mercenaries of the white Right, lost a racial vilification case brought under Section 18C. Alan Austin, writer for Independent Australia, covered the case. Bolt claimed that fairer-skinned Australians who claim Indigenous ancestry were only doing so for financial gain and career advancement. Bolt was found guilty of racially vilifying a group of Indigenous Australians in his columns, and was forced to pay damages. However, this finding did not significantly impact his media career, mind you.

Be that as it may, the conservative Right, assisted by former Prime Minister Tony Abbott, current Attorney General George ‘everyone has the right to be a bigot’ Brandis, Senator Leyonhjelm, and an assorted collection of ultra-rightist lampreys who all jumped onto the anti-Section 18C bandwagon. Perhaps they should all take a crash course in Section 18C, provided by Professors Gelber and McNamara here.

The Australian Human Rights Commission has absolutely no powers to sue anyone or take anyone to court – an impression left on audiences by the anti-Section 18C crowd. The main purpose of the Australian Human Rights Commission, when it receives a complaint, is to conciliate and find a mutually satisfactory solution. Legal action is always the last resort, and is only undertaken when attempts at conciliation fail.

The majority of complaints brought under Section 18C are resolved through conciliation and arbitration – only a minority make it into the court system. Of those that end up in court, the majority of those complaints are dismissed as trivial or vexatious, or lacking in substance.

The critics of Section 18C should read Section 18D – that portion of the Racial Discrimination Act which spells out exceptions to Section 18C. Numerous exemptions are provided by Section 18D, and that strikes a balance between free speech and racial vilification, according to Tim Soutphommasane, the current Race Discrimination Commissioner. Relaxing the racial discrimination laws would only increase the risk of condoning racism. Soutphommasane stated that:

 

Much of the criticism of the RDA has been misplaced or misguided. Many critics have ignored how section 18C is accompanied by section 18D, which protects any fair comment or reporting on a matter of public interest, and any sentiment expressed ‘in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose’. Provided something is done reasonably and in good faith, any fair comment or public discussion will be exempt from being in breach of section 18C.

 

 

The latest permutation

 

In November 2016, Prime Minister Turnbull, casting around for a cause around which to unite his fractious party, latched onto the repeal of Section 18C, and resuscitated that campaign. Taking another step in the conservative culture war, Turnbull announced a parliamentary enquiry into Section 18C. The immediate catalyst for this decision was the dismissal of a case brought by an indigenous woman against three university students. The complaint, undertaken within the scope of Section 18C, was dismissed by the judge.

Rather than taking this as evidence that the law is working, Turnbull and his ultra-right associates launched a stinging attack on the Human Rights Commission, and revived the hopes of right wing figures in their effort to repeal Section 18C. The parliamentary enquiry submitted its findings in March this year. The enquiry recommended changes to the process and procedures for submitting complaints, but crucially left the wording of Section 18C alone.

Turnbull, frustrated in his attempts to acquire success in this campaign, went on to behave like a spoiled brat – he ignored the parliamentary enquiry’s recommendations, and submitted a bill to parliament to make changes to Section 18C. His bill was defeated in the Senate. His government is now back to square one on that front.

Posturing as defenders of free speech cannot disguise the underlying motives of the on-again off-again campaign to repeal Section 18C. As John Passant stated in an article for Independent Australia, abolishing Section 18C will only provide freedom of speech for the few – for the ultra-wealthy elite that dominates media ownership and political discourse in Australia. Racial discrimination provisions do not provide a universal panacea against racism. Nor do they mean that racism can be defeated by legislation alone. It does mean that Australians have rejected the phony ‘right to be bigots’, as articulated by Brandis and company.

Section 18C is no threat to freedom of speech, and is an important part of any civilised society. Let’s keep it that way.

 

 

 

 

 

 

 

 

 

Rupen Savoulian

I am an activist, writer, socialist and IT professional. Born to Egyptian-Armenian parents in Sydney, Australia, my interests include social justice, anti-racism, economic equality and human rights.

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