April 28, 2014 | Graham

Consensus on racism ought to be the end of 18c

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.





Posted by Graham at 11:22 pm | Comments (10) |
Filed under: Legal


  1. “The moment you establish the state as the arbiter of what might be said, you establish the state as the arbiter of what might be thought, and you are right in the territory that George Orwell foreshadowed.”

    Bridie Jabour writing in the The Guardian!

    Comment by Max — April 29, 2014 @ 6:43 am

  2. In New Guinea I found there were the people of some tribes whose word was their bond. You could trust it completely.

    There were also some tribes, who would have someone creeping up behind you with an axe, while shaking your hand & smiling. This was the ethos of the tribe. Only a fool would ever trust them.

    They were a smaller people than some other tribes people. Was this race or nurture? I have no idea, but it would be ridiculous to have a law that prevented you warning someone else not to trust a Kooka Kooka.

    If knowing this & expressing this makes me a racist, so be it, however I believe I am simply being realistic in not trusting some ethnic groups.

    The mere fact that people like the Kooka Kooka exist makes a law like 18C totally ridiculous, & indicates we have many fools, or dishonest people, in Oz, who are definitely not to be trusted.

    Comment by Hasbeen — April 29, 2014 @ 9:39 am

  3. I have always maintained that free speech, the very cornerstone of democracy, includes the right to offend!
    I i.e., might offend some ethnic groups, who see child brides and or underage sex as acceptable?
    Some traditions need to be changed, to more closely follow the acceptable social mores of a new country!
    Nor do I favor polygamy, and will argue against it in the most vehement forthright manner. Surely it is already too difficult, just to keep one woman happy and satisfied?
    That said, I believe we can keep 18c, but modify it to apply it almost exclusively to racial vilification!
    I also believe we need to quantify aboriginality, with the minimum 25% rule, that many other indigenous groups have defined as the lowest possible component, that enables any person to claim a traditional inheritance, or special civil or land rights!
    But particularly, while trying to completely ignore their Occidental heritage, or just see it as shameful!
    Bolt probably had a right to say something along the lines he used, but could have voiced his opinion, a little more tactfully, making sure he qualified his remarks, with a statement that this was only his unqualified opinion and did not necessary represent those of the publication.
    Moreover, that he was open to any reasonable discussion, that may or may not moderate those views, which were never intended to single out, deliberately hurt or vilify any group, even those with the very sensitive feelings, of the alleged aggrieved!
    In some ethnic communities, color is one of the most sensitive issues, and being too white or the “wrong color”, is at the very top of a no/no list!
    Not all that long ago, being too white could have been a virtual death sentence; or, a virtual licence to endless bully or hurt or use for personal pleasure, and without permission and or, the usual recriminations etc.
    Largely because, there was no dad, providing a dad’s traditional protection to his own offspring!?
    A more tactful Bolt could have simply raised the customary 25% rule as practiced by other native poeples, rather than refer to the “milky white tones” of another person’s skin! And here I paraphrase, rather than quote!
    Thereby allowing him to make all of his relevant points, without crossing a very sensitive color quantity line?
    Alan B. Goulding.

    Comment by Alan B. Goulding — April 29, 2014 @ 11:02 am

  4. Alan, I think his point was about colour, as well as race. Andrew could be a lot more temperate in a lot of what he says, but then he wouldn’t be as entertaining, or as effective.

    Comment by Graham — April 29, 2014 @ 1:19 pm

  5. This is my take on this.

    It depends on your definition of discrimination and racism. If you meant discrimination as in verbal racial insults, then I for one feel that discrimination on someone based on race is PERFECTLY FINE. As long as it is done in an informal setting, e.g chit chat with friends, among family members, etc. You can call me all the racist insults for white people, I am not offended, at all.

    However, in a formal setting, (e.g job interview, board meeting, company meeting, seminar, professional talks) then discrimination should not be allowed. Fair employment practices and professionalism should triumph over racism in these situation.

    Comment by Jenny — April 29, 2014 @ 3:00 pm

  6. No amount of laws and policies legislated could eradicate racism. With the Racial Discrimination Act in place and the White Australia Policy being abolished around four decades ago, why then do we still have asians getting racially abused in buses and trains (some of these incidents caught on videos, you can watch them on Youtube, and they happened like only a few years ago). Why then do we still have the Cronulla riots, indian students being attacked, white people/anglo australians being attacked by non-whites due to racially motivated crimes (yes even white people fall victim to racism too and I know it is a BIG surprise to most of you out there).

    Australians should start living in the real world and stop pretending that racism won’t exist with or without anti-discriminatory laws in place.

    I really want to ask this to my fellow Australians.

    When will we move forward together as a nation, and stop being obsessed with these thoughts of race, racism and racial discrimination.

    For every perceived discrimination you think you have gone through, there are definitely others who have gone through much worse. Other countries have it much, much worse. Some people in other countries are robbed, killed, persecuted, beheaded, etc because of racism and discrimination (just because they are of a different race or religion/faith). And over here in Australia people go berserk over a racist remark.

    Comment by Stacy — April 29, 2014 @ 3:25 pm

  7. The problem is not so much the legislation as it exists but the definition of ‘racism’, if any religious group is defined as a race, our rights to free speech will be compromised. Arguments that attempt to conflate religion and race appear regularly in the media.

    Comment by RussellW — April 29, 2014 @ 3:48 pm

  8. The problem I find is not so much a discrimination based on colour or race but more to do with culture. I don’t consider myself racist but I would have great difficulty in accepting my daughter marrying into a culture that treats women as chattels and forbids them education, insists on them being dressed a certain way and regulates their actions and independence of thought. There are massive cultural differences that have the potential to cause racist attitudes. I believe that if you want to live within a different culture than your own then it is necessary to abide by
    the laws and attitudes of that country. This doesn’t mean that all one’s own cultural knowledge should be forgotten or abandoned but only practised when it doesn’t clash with the culture of the adopted country. I don’t think changes to the Discrimination Act will do anything to change this. I believe that we have the right to defend and insist on our own cultural rules being adhered to when there is a clash. Whilst tolerance and understanding towards cultural differences should always be encouraged, I believe that I am also entitled to that tolerance and shouldn’t have to defend the fact that I am in the “white” majority. If I tell someone that they are wrong or that I do not approve of their cultural attitudes then I am not being racist. However, when I apply this disapproval generally to a culture or race, then, I am being racist.

    Comment by Sandra Lismore — April 30, 2014 @ 9:27 am

  9. So what is being racist? How do we define it? As a working definition racism is believing that some particular attribute (whether positively or negatively regarded) is more likely to be found in one racial group than another. For example “Nigerians make better distance runners than Inuit people.” So I pose the question, does voicing this view make one a racist?

    Now the claim may or may not be true and there might be some empirical way of testing it. I suspect some would regard it as racist even to raise it as a hypothesis. If this view prevails it follows that there are some hypotheses or questions that can not be asked. Sad!

    Comment by Ray — April 30, 2014 @ 10:59 am

  10. Yes Graham, and having seen one of the ladies he referred to, one can understand how he reached what seems, on the face of it, very reasonable conclusions?
    I believe the judge erred, given the judgement, in my view, failed the any reasonable person test?
    Had he/she asked for a conclusive DNA test, he/she may have been obliged to find in Andrew’s favor.
    Particularly given an established precedent, were all those white folks claiming Tasmanian Aboriginal heritage or ancestry, must now undergo a fairly simple and decisive DNA test! Particularly, the blue eyed blonde ones?
    As I understand it, none of these women were claiming any benefit due to those with Aboriginal heritage, and therefore had not been asked to submit to any voluntary or compulsory DNA testing?
    However, and given the controversy, I believe that they should, if only to reinforce their case, and its fair outcome or not?
    On reflection and having actually seen one of the ladies, I believe Andrew and his newspaper, should have gone to the high court, [and possibly still could?] and demanded a conclusive DNA test. Which I believe, at lest one of the ladies if not all, would have failed?
    In any event, this particular case seems, in my opinion, to have failed a very rudimentary, any reasonable person test?
    Cheers, Alan B. Goulding

    Comment by Alan B. Goulding — May 1, 2014 @ 8:22 am

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