Andrew Bolt at Melbourne's Federal Court.
The first time I published an article I was sent some abhorrently racist messages from people who obviously had a problem with an Aboriginal woman expressing views in the public sphere. I remember taking small comfort in two things: there were people who felt my views were worth discussing (as demonstrated by some insightful responses), and that there were laws I could use to take action should I experience such vilification again.
But recently, Senator George Brandis announced plans to introduce legislation to repeal Section 18C of the Racial Discrimination Act (RDA) so that offensive and insulting speech is no longer considered to be racial vilification. Additionally, the rest of the provisions under 18C, including it also being unlawful to intimidate and humiliate others based on race, are being examined for amendment or removal as well.
Leading the media discussion around the repeal of these laws is mainstream columnist Andrew Bolt. In what was the highest profile case of the RDA being applied in recent times, Bolt was found to have breached the act in question where he accused selected fair-skinned Aboriginal people of using their heritage to wrongfully profiteer.
Since then Bolt has argued this ruling was a breach of his own ability to engage in free speech; stating so publicly, and via his blog. Never mind that his pieces were legally found to contain untruths or that the judge has concluded that “racially prejudiced views had been reinforced, encouraged or emboldened” by his articles. Shall we even bother with the irony of a man complaining of being ‘silenced’ despite having his own column, books, blog, TV show and regular radio appearances?
So how best to apply liberal democratic principles, which are supposed to protect the rights of minorities as well as the rights of individuals, in a nation that prides itself on the concept of a “fair go” for all? What’s more, if all Section 18C of the RDA does indeed end up getting fully removed – and it becomes completely lawful to offend, insult, humiliate and intimidate racially-marginalised groups – how will this affect the ability of these people to freely participate in society and enjoy the same privileges of “free speech”?
To me, the existence of the RDA in the first place acknowledges that there is a need have provisions that protect the interests of racial minorities in this country. That a “dominant culture” exists and there are consequently sections of the community who are marginalised due to its existence.
It also recognises that the participation of certain groups in Australia may be diminished by experiences of racial vilification. So in order to encourage equal participation of regardless of racial background, there is a need to address racism legally. It’s also a powerful reminder that a “fair go for all” has not yet been achieved, and the RDA ensures there is a legal avenue to pursue to in order to achieve this fairness.
It’s worth pointing out that rather than diminishing “free speech”, the RDA actually ensures that a wider cross-section of the society has the ability to participate in it. It creates a slightly more level playing field so that those who are racially marginalised can express their opinions with little fear of racist retaliation. It also states that vilification on the basis of race is not simply an “opinion” and therefore provides an imperative for the mainstream to construct their opinions more thoughtfully.
“Free speech” is great provided all members of society have the right to enjoy the privilege equally. The truth is, we do not currently have a racially equitable society, nor do we vigilantly ensure that those who are marginalised have the same opportunities to participate fully.
Voltaire may have said “I do not agree with what you have to say, but I'll defend to the death your right to say it” but this rings hollow unless everyone does actually defend that right, particularly for those who need the most defence. Until then, it is reasonable that there are ways for people to seek equity legally.