By Jess Hope

What happens when policy ignores history? This week, Australia’s conservative government announced proposed changes to the Racial Discrimination Act (1975) and its amendment the Racial Hatred Act (1995), which was established in response to an increase in verbal and physical racial violence in Australia. The changes would see the repeal of Section 18C, which presently makes it unlawful to ‘offend, insult, humiliate or intimidate another person or a group of people’ on the basis of their ‘race, colour or national or ethnic origin’.[1] Instead, in the opinion of Attorney-General George Brandis, the Australian people ‘have a right to be bigots.’[2] As currently stated, the implications appear to be as follows:

It would no longer be prohibited to publicly offend, insult and humiliate on the basis of race;

it would not be permitted to vilify (defined as inciting racial hatred) or intimidate (defined as causing fear of physical harm) on the basis of race, unless this occurs while ‘participating in the public discussion’;

whether or not something is vilification or intimidation would be determined by the so-called ‘ordinary’ Australian public, and ‘not by the standards of any particular group within the Australian community’; and

those willing to exercise free speech regarding racial issues would no longer have to do so in good faith, in public interest and with attention to accuracy.[3]

The proposed amendments have been met with widespread criticism for significantly narrowing what constitutes unlawful racism, not least for the fact that they seem to imply broad exemptions in which even vilification and intimidation are permissible. On a deeper level, they also reflect a particularly ahistorical understanding of racial discrimination.

Judge and jury: offence, humiliation, vilification?

Historians are trained to understand that we cannot get the whole story from studying the lives and archives of the rich and powerful. If we wish to uncover the experiences of women, minorities, the colonised and oppressed, we may have to read between the lines. We have to seek out oral histories, personal documents, fragments of culture and memory, stories handed down within these communities.

The same principle applies to racial discrimination. If laws are to effectively represent and protect minorities, they must be founded in the social reality and lived experience of those minorities. Is the historical memory of this so-called ‘ordinary’ Australian community (implicitly defined as excluding the targeted group) sufficient to judge whether the indigenous community can reasonably feel vilified by racist epithets? Does its experience equip it to decide whether African communities should feel intimidated by a historically-charged performance of blackface? Will the ‘reasonable’ Australian public connect the dots between a humiliating incident of public name-calling, a nasty cartoon, a mocking social media page, and a violent assault?

The research suggests that they will not. According to Mari Matsuda, non-target groups tend to view casual racism as isolated and inconsequential, as “‘just-kidding’ stories’. In the experience of target groups, however, name-calling and other such indignities may be inextricably bound to broader and more threatening contexts of historical oppression, reinforcing over and over again the continued power of one group over another.[4]

Disturbingly, Brandis’s statement that racially-targeted offence, insult and humiliation amount to nothing more than ‘hurt feelings’ reveals an attempt to embed a ‘just-kidding’ approach to racial discrimination in Australian law. Allowing the majority to define what is and what is not racial vilification of the minority results in further disempowerment where there is supposed to be protection, rendering the minority’s historical and social experiences irrelevant and unheard. Or, as Waleed Aly has more incisively suggested, ‘it’s what happens when lawmakers and the culturally empowered proceed as though ours is a society without a racial power hierarchy simply because they sit at the top of it.’[5]

At a more basic (and sinister) level, the amendments normalise the unalterable fact of one’s race, rather than one’s conduct or ideas, as a target for abuse.[6] By designating some forms of racism permissible and others prohibited, they locate the problem of racism in its perceived level of harm—in whether it incites physical violence or is ‘simply’ humiliating.

From a historical perspective, however, racism has rarely remained limited to the forms made ‘acceptable’ in these amendments. Rather, racial violence in colonial Australia and the segregated United States, to give two examples of many, occurred and escalated within much broader, ongoing contexts of racial mockery, insult and humiliation. Nor did the more recent provisions of 18C emerge within a vacuum. This is not to draw a straight line between the proposed amendments and a campaign of targeted racial violence. It suggests, however, that political acceptance of ‘race’ as a designator for insult and humiliation risks creating a culture in which greater violence becomes possible.

The proposed amendments fail to take account of what we know as historians to be essential: that those best equipped to understand the experiences of the oppressed are the oppressed themselves. By silencing the voices they purport to protect, and in their power-blind presumption of a racially-neutral ‘ordinary’ Australian community, the changes would take Australian anti-discrimination laws several steps in a dangerous direction.

[1] Racial Discrimination Act 1975, published 7 January 2013 at Australian Government ComLaw, http://www.comlaw.gov.au/Details/C2013C00013/Html/Text#_Toc345324321

[2] Emma Griffiths, ‘George Brandis defends ‘right to be a bigot’ amid Government plan to amend Racial Discrimination Act’, published 24 March 2014 at ABC, http://www.abc.net.au/news/2014-03-24/brandis-defends-right-to-be-a-bigot/5341552

[3] Based on the repeal of Section 18D; see Racial Discrimination Act 1975 above. It is not the purpose of this post to address the question of protecting free speech, which (as implied in the list above) is provided for within reason, in good faith and with attention to accuracy in the current Act.

[4] Mari J. Matsuda, ‘Public response to racist speech: considering the victim’s story’, Michigan Law Review (vol. 87 no. 8), August 1989, pp. 2324, 2327-31.

[5] Waleed Aly, ‘George Brandis’ Racial Discrimination Act changes create the whitest piece of proposed legislation I’ve encountered’, published 27 March 2014 at Brisbane Times, http://www.brisbanetimes.com.au/comment/george-brandis-racial-discrimination-act-changes-create-the-whitest-piece-of-proposed-legislation-ive-encountered-20140327-zqnea.html

[6] See Richard Delgado, ‘Words that wound: a tort action for racial insults, epithets, and name-calling’, Harvard Civil Rights-Civil Liberties Law Review (vol. 17), 1982, p. 140-9.