For we are young and free speech is illegal?

For we are young and free speech is illegal?

Free speech is being choked out of us by restrictive laws! You can’t say anything anymore! Torch the Racial Discrimination Sections 18c and 18d!

While it may be true that the social consequences of ‘you can’t say that!’ are getting trickier to navigate, the legal restrictions on ‘free speech’ in the Racial Discrimination Act (1975) are actually quite straight forward.

Senator Cory Bernardi is calling on Australians to ‘defend free speech’ with adjustments to RDA section 18c by removing the words ‘insult’ and ‘offend’ from the following:

Offensive behaviour because of race, colour or national or ethnic origin

             (1)  It is unlawful for a person to do an act, otherwise than in private, if:

                     (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

                     (b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

The practical effect of such a semantic switch would be akin to giving your toddler a brick to smash his toe with, rather than a mallet.

Bernardi claims that the law ‘should not concern itself with feelings’, and perhaps he has a point there–it’s tough enough to apply law to cold hard facts, why should someone’s feelings be considered also?

First of all, because the Racial Discrimination Act is designed to build a social structure that includes and welcomes everyone, regardless of race or ethnicity. Where groups are publicly made to feel less than others in community spaces, that destroys any sense of inclusion they may have had. Feelings are at the very core of this law.

Secondly, Bernardi has only picked ‘offend’ and ‘insult’ from the list of harms. ‘Humiliation’ is also a feeling, as is ‘intimidation’. To exclude all feelings from the practice of this law would take away any meaning. The only means by which racial vilification could be proved is by non-emotions based evidence: physical assault, statistics, and other symptoms that appear long after insults have bred into negative attitudes.

The truth is, removing two words does very little to change the way this law would work. Someone who is ‘insulted’ may no longer be able to claim this in court, but ‘insulted’ persons often feel ‘humiliated’, the practical applications of the law would not change at all.

Changing this law is an exercise in futile grandstanding, a politician who seeks to whip up support by claiming the political left is choking Australia’s right to free speech. Which would be all well and good, if he had any plan to do something substantial about it.

Note that this is also included:

Note:          Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

These acts are unlawful but they are not considered criminal offenses. Charges are not brought by the state against the person, they are civil complaints that are handled by the Australian Human Rights Commission.

This is not the same as being prosecuted in criminal court.

So let’s have a good look at the RDA sections in question, 18c and 18d, and see just how restricted our free speech really is!

Section 18c (a) makes it pretty clear that it is unlawful to do anything (other than in private) that could upset someone if the reason for doing it rests on their being of a certain race/ethnicity/religion/etc.

That seems fair to me. I could agree with repealing this law if it meant that Australians were going to act on common sense and what their mothers taught them. It’s unfortunate that we need laws to teach us not to be dicks to each other. Be nice to each other, unless you’re in a private space.

(2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

                     (a)  causes words, sounds, images or writing to be communicated to the public; or

                     (b)  is done in a public place; or

                     (c)  is done in the sight or hearing of people who are in a public place.

“public place ” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

A public place can be considered as anywhere that you might reasonably have an ‘audience’, whether that’s via public media, social networks, or community spaces. Places where you are likely to be heard or seen by the persons you are speaking against, and where your actions can directly affect them.

This is especially important for journalists, politicians, and other prominent personalities who may have their words taken as fact.

The law is not telling you that you can’t have an opinion. The law isn’t telling you that you can’t voice your opinion to your mates. It clearly states that negative acts that are racially motivated are not accepted in community spaces and media.

While we’re on the subject of voicing opinions, there are some exceptions to 18c:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

                     (a)  in the performance, exhibition or distribution of an artistic work;

Artistic work is ‘free speech’ at its best. Art is how we express the state of the social structure, art is how our society will be seen by generations after us. We understand history by Shakespeare, Picasso and Mozart–Australians of the future will experience our society in a similar way.

Art shows us a reflection of what is, and inspires us to change. That is why it’s more acceptable to enact discrimination via artistic means. Art is supposed to challenge us and make us feel, to be confronting.

(b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest;

If what you are saying is proven fact, you cannot be sued. Even if the fact is hurtful or humiliating, it is not unfair nor unjust to speak it in a public setting. This passage also provides immunity for discriminatory practices used in research on how and why people discriminate, and debates on society and discrimination.

This allows us to openly discuss what discrimination is, and what discriminating attitudes we might feel ourselves as we open our minds to understanding the subjects of those attitudes. Discrimination is a social issue, and not one we should run from.

If you are expressing a view that is unacceptable under 18c, but is for the purposes of learning or is proven fact, you are protected by 18d.

(c)  in making or publishing:

                              (i)  a fair and accurate report of any event or matter of public interest; or

                             (ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

For those of you who were wondering where your right to an opinion went, here it is.

If you honestly, truly, believe in what you’re saying, you might be ignorant but you cannot be sued. This is why politicians like Pauline Hanson, who openly expresses her reservations about multicultural aspects of Australia, are not sued under 18c. She has an opinion that she wholly believes, has built a platform upon it, and though she offends and insults a lot of people over public media–she can’t be sued on ignorance alone.

The first part of (c) allows news outlets to report what occurred, without fear of litigation. If an attack occurred that was carried out by persons of a single race, so long as the account of the event is true and void of opinion-based speculation (unless written in an article stated as opinion) there are no grounds for litigation.

In summary:

Truth, common sense, and respect for others are the core values at the heart of The Racial Discrimination Act (1975) Sections 18c and 18d. The law and these amendments in no way infringe on anyone’s right to speak the truth, only restricting the unfounded fear-mongering hate rhetoric that injures others and damages Australia’s chances at an inclusive society.

If Bernardi wants to preserve ‘free speech’, he needs to do more than try and remove a few words. He needs to help Australia understand what free speech is, and what is appropriate according to the existing law. His changes won’t have any functional effect, just another distraction in Canberra.

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