One reason it is difficult to argue for the abolition of Section 18c of the Racial Discrimination Act is because there is no-one prepared to say that discriminating against someone based on race is OK.
It allows supporters to switch the argument from free speech to whether you support racism or bigotry, or as Van Badham said on Q&A tonight, “facilitate it”. And that is a hard argument to win because virtually no one supports either.
But that is in fact the strongest reason why it can go.
Curbs on freedom of speech can only be justified if there is some substantial threat to someone’s personal security because of it, so 18c can only be justified if there is a significant and real threat arising from the abuse.
But what is that threat when the whole of society is so convinced that racial discrimination is wrong?
It’s not going to be some sort of a political movement that is going to do real harm to a racial group.
It can only be a personal threat, but in that case why have a law like 18c which singles out only racial discrimination?
If the threat is to do physical damage to someone, then there are already laws against that, no matter whether your grounds are racial or not.
And if it is damage to reputation, then again, there are already laws that allow you to sue for that, whether your grounds are racial or not. There are also laws which deal with abuse, and bullying, in general.
So there is no justification for 18c, unless there is something special about racism.
That something special might be the fact that in recent history racism was widespread, and did terrible damage to racial minorities (or even majorities as in South Africa).
So one could argue a defence of 18c on the basis of a program to eliminate racism – that its justification is its normative effect.
But if the population in general has come to the same conclusion the legislation promotes as normal, then even this need for it has vanished.
The more I think about this issue the more I come to the conclusion that it is not Brandis who needs to justify repealing the legislation, but the proponents who need to justify retaining it. A theme which I might return to later in the week.