Malcolm Turnbull will be urged to strike out two of the most controversial parts of the nation’s racial hatred laws as Coalition MPs build momentum for change out of concern that the current rules impose a “political correctness” that stifles debate.
A key parliamentary committee is canvassing detailed changes to the law that makes it an offence to “insult” or “offend” someone on the basis of race, replacing the two controversial words with “harass” in order to prevent vexatious claims.
Coalition MPs are also building support for an overhaul of section 18C of the Racial Discrimination Act to include a “truth defence” and a sharper focus on exemptions for the media, building pressure for a formal government decision to amend the law.
The reform plan is set to be unveiled in two weeks and is certain to go beyond a “minimalist” response to the heated public debate over the prosecutions of three Queensland University of Technology students and Bill Leak, a cartoonist with The Australian.
- The Australian, 12th Feb 2017.
That great bastion of self-aggrandisement under the cover of journalism, The Australian, has for an extended period of time run opinion pieces claiming that either the Australian public are crying out for changes to section 18C of the Racial Discrimination Act 1975, or that section 18C of the Racial Discrimination Act 1975 should be changed on the grounds that impinges on free speech. To the former claim I say that this is a load of rubbish and the only reason why anyone is even remotely concerned is because The Australian and other sister publications within News Corp. keep on harping on about it like a harpist playing on a harp of only one string. To the latter claim that 18C impinges on free speech, I say "duh", it is supposed to. Absolute free speech isn't and shouldn't be a thing and if anything the actions of The Australian and its sister publications prove the case.
If a right to free speech is to be claimed, then its worth considering both what a right is and what if any limits need to be imposed upon it.
Whether or not a right is either claimed to be pre-existing or arises as the result of the law, a right is a concept at law where a thing is owned or allowable. The right to free speech as being claimed by The Australian is the allowance to publish anything that it likes with absolutely no repercussions for doing so.
The problem with allowing people to do whatever the heck they want, without limit, is that people consistently prove that as self interested and selfish beings, their actions as a result of doing whatever the heck they want, frequently harm other people. Suppose you had someone standing in a crowded room, like the front room of a pub on a night when the football is on the telly, and they were standing in one spot flailing their arms around. If a right exists to move one's body around without limit, then that's all fine until one of those flailing arms connects with someone's face and then suddenly you'd have a full on fist fight, with the possibility of glass flying about and people being cut up and needing to go to the hospital.
Some people would argue that people's rights extends exactly as far as someone else's face and that at it only ends at the point where harm to others is done. This idea is known as the "harm principle" and perhaps the most articulate exploration of this came about in John Stuart Mill's h 1859 book "On Liberty". Mill thought that speech should be as free as possible subject to that harm principle. My question is at what point is harm objectively measured? Supporters of absolutely unregulated free speech would argue that whatever harm might be caused is a necessary cost of free speech but invariably they're not the ones who bear that cost.
Let's take flight of fantasy (on Aristotle Airways flight AA59; bring your passport) and imagine the Republic Of Utopia in which free speech is unbridled and absolute. There is a particular people group living in Utopia who are green in colour and not surprisingly are called the Viridians. Simply on the basis of their skin colour, they are subject to racial abuse, all day and every day. Utopians argue that because they have the right to absolutely free speech, that they can say whatever they like and they are perfectly correct in doing so. The problem is that if something is repeated again and again, people tend to believe it. The Viridians find that they suffer lower wages, are often discriminated against when it comes to drawing up contracts and are constantly made to feel like and are treated as an underclass because people internalise and normalise the racial slurs directed at them. At what point exactly do they suffer harm? If you were to stab someone with a dressmaker's pin a hundred thousand times, all of those individual stabs would hurt but since we're not dealing with physical harm but rather a continual barrage of words, that makes it okay?
What would happen for instance if there was a stream of racial abuse directed at a Viridian who happened to be deaf? As an individual they wouldn't personally be able to take offence because they wouldn't be able to hear the abuse but that doesn't necessarily mean that they suffer no harm whatsoever. The instance of racial abuse still adds to the general pool of ideas which the public carries around.
If you are a Viridian who lives in the hypothetical Republic Of Utopia, it is pretty easy to see that the opportunities which your life is going to present, are going to be far more limited than if you were not a Viridian. The argument that you can just pull yourself out of your predicament, is a complete and utter lie because it is immediately obvious to you and everyone else in the world that you are a Viridian because you stick out like a big green light. For everyone else whose speech is free an unfettered, there is zero consequence of that speech but where opinion becomes indistinguishable from fact, the world is shaped by those opinions which then flow into actions.
The thing is that we do not live in Utopia and to be perfectly honest, I wouldn't want to. I find the idea that speech is completely free and that people can cause harm with no consequences, repulsive. Absolute free speech might allow one specific freedom to those who would exercise it but for the people on the other end who suffer the abuse which follows, it is like giving people a club to beat people with. it is fundamentally unfair that the person who pays the price for free speech, isn't the one who exercises it.
There should be limits to liberties because without them, nefarious people steal them. When driving a motor car down the highway, we are subject to a line down the centre of the road. That line definitely imposes limits to out liberties but few would argue that the line is a bad thing. The line can and should be drawn because although it does impose a limit, society is better off because of it. With regards the right to speech 18C as part of the Racial Discrimination Act clumsily draws that line but I'd still rather that the line existed than not.
As for Mill, he said that:
As soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it becomes open to discussion.
Acts injurious to others require a totally different treatment. Encroachment on their rights; infliction on them of any loss or damage not justified by his own rights; falsehood or duplicity in dealing with them; unfair or ungenerous use of advantages over them; even selfish abstinence from defending them against injury - these are fit objects of moral reprobation and, in grave cases, or moral retribution and punishment.
- John Stuart Mill, On Liberty, 1859.
This is one of the reasons why I find something like the Bolt case or furore around Leak's cartoons so illustrative. Something which is published in a daily newspaper is obviously going to carry more weight in the arena of ideas than simple abuse shouted in a small audience.
To be perfectly honest I find the defence, particularly in the case of Bill Leak's cartoons that he was "pointing out facts" to be mostly rubbish. If you had someone in a crowded room who was flailing their arms around, if they happen to connect with someone's jaw and cause an injury, even though it might be stupid and an accident, responsibility still has to be taken for the injury caused. Of course someone who asserts that no injury can be caused in the realm of free speech would also argue that no harm was done. The only reason why certain political parties care about the removal of 18C and express the excuse that it imposes limits to absolute free speech (which it does) is because they don't want to be held responsible for any injury that they might cause (which they also deny exists).
Mill thought that society has jurisdiction over people's conduct when it prejudicially affects the interests of others. I don't know upon what basis The Australian can claim that its publication of unfair and ungenerous material causes no injury to those on the receiving end and the only "heated public debate" surrounding 18C happens when The Australian for the umpteenth time claims the right to flail its arms around without limit. I think that the only thing actually stifling debate, is The Australian and other sister publications within News Corp. yelling as loudly as they possibly can to drown out all other voices.