By Tim Soutphommasane

Can you legislate for virtue or eradicate racism through laws? These are questions that have been raised in the current debate about the Racial Discrimination Act.

Some, particularly those who favour the Federal Government’s proposed reform to the Act, suggest that combating discrimination is best left to the marketplace of ideas. We should fight bad speech, as it were, with good speech.  It is argued that if people wish to air their prejudices and bigotry, we should let them be censured or ridiculed with the speech of others.

This view is wrong for a number of reasons. While it would be naïve to believe that legislation alone can solve society’s ills, it would be even more naïve to believe that laws should therefore be no part of the solution at all. As with all markets, the marketplace of ideas can fail. It is simply not reasonable or realistic to believe that racist speech can be fought with well-reasoned rebuttal – for the simple reason that that racist speech often is not rational in the first place. When confronted, for example, with a racist rant on a bus, a burst of rational speech may do nothing to change the mind of the one doing the ranting.

Moreover, it can be unrealistic to prescribe that those who are subjected to racist abuse should only fight back with speech, and speech alone. Racism can silence its targets. It may be one thing for someone occupying a privileged social position to speak back when confronted with abuse. It may be another for someone who may be speaking from a more marginal or vulnerable position to do the same.

The law should have a role in combatting racism. The law regulates many aspects of our social life, after all. Why should it not also have something to say about abuse and harassment that violates another person’s dignity and freedom? Why should it not play a part in setting a civil and tolerant tone in a liberal democratic society? And if we do affirm that racism is abhorrent, and that we should endorse actions designed to ameliorate behaviour, why should we not use the law to set civil standards?

In the case of the Racial Discrimination Act, its provisions on racial vilification have, during the almost two decades they have been in operation, done a number of things. Not least, they have influenced the emotional climate of the public culture. They have helped to set the tone for our multicultural society. They have provided all Australians with a legal means of holding others accountable for public acts of racial vilification that have the effect of degrading them.

There is no good reason for changing laws that have been in place for close to 20 years, and which have worked well to provide legal remedies for racial vilification. The law should stay as it is. Now is not the time to be weakening legal protections against racism. Now is certainly not the time to be elevating a right to bigotry over a right to be free from bigotry’s effects.

The Federal Government’s exposure draft of amendments to the Act offer no source of comfort. The draft has been subject to considerable criticism from legal experts. I have outlined my specific concerns on previous occasions. Of most concern, the exposure draft contains a remarkably wide category of exception covering anything that is communicated in the course of participating in “public discussion”. This exception removes the current requirements in Section 18D of the Act, which mean that anything done in fair comment or reporting of a matter of public interest is legally protected, provided someone acts reasonably and in good faith.

While those advocating change have often invoked liberal political philosophy, one liberal principle is not always mentioned: the exercise of one’s freedom should not inflict harm on another. The liberal philosopher Isaiah Berlin once warned against privileging liberty above all other values. “Equality may demand the restraint of the liberty of those who wish to dominate,” he wrote, because “total liberty for wolves is death to the lambs.”

Indeed, there has been something deeply conservative in the moral assumptions behind the case for repealing section 18C of the Racial Discrimination Act. In the calls for changes to the Act, and for greater freedom to express one’s bigotry, we hear not so much the voice of liberalism but the voice of reaction. It is a voice that gives expression to a psychology of loss. In those celebrations of free speech, including a freedom to abuse and harass others on racial grounds, what we are really hearing is a longing for a time when Australians could give expression to their prejudice; a time when Australians could be bigots without having to worry about social disapproval.

There is something also deeply reactionary in the idea that Australians who experience racial vilification in public should just accept denigration as part of the price of living in society. The seminal conservative thinker Edmund Burke wrote about the “delightful horror” of the sublime. He celebrated the extreme emotions one felt when confronted with pure danger or terror. While we may be diminished by the experience, we may also swell when conversing with “terrible objects”. This explains why some believe minorities who experience racism should simply develop thicker skins. Apparently there is something edifying, after all, in having a co-worker, customer or stranger in public calling you a “boong”, “nigger”, “chink” or “sand-nigger”.

Racism is not, however, about political ideology. One major reason why Australia has succeeded as a nation of immigration, as an emphatically multicultural society, has been the political leadership exercised on matters of race. Racial tolerance has been one of the pillars of contemporary Australian political morality. We have been fortunate that leaders in this country have regarded racial tolerance not as a prudential or political requirement, but as a requirement of morality. There is an urgent need to affirm this. As the debate about bigotry and free speech continues, we should make sure we are asking the right question. It is not, “Do we have a right to be bigots?” The question is rather, “What kind of society do we want Australia to be?”

Dr Tim Soutphommasane is Australia’s Race Discrimination Commissioner. This is an edited extract from a speech he delivered on 11 April to the Society of Australian Psychologists in Canberra.

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