The red-hot problem with race laws

The biggest problem with racism laws is who decides what is a race and who is a racist, writes Joe Hildebrand.

There’s one big problem with our race hate laws. Picture: Mick Tsikas/AAP

The great lament of leaders and lawmakers has always been that you can’t legislate against stupidity. And yet, in one of life’s great ironies, we are so stupid we keep trying to.

The perfect example is the current debate about free speech, which has been so deluded and hysterical you could be forgiven for wondering if we’ve mastered the power of speech at all.

At its core is Section 18C of the Racial Discrimination Act, a once innocuous piece of law that has become such a lightning rod of discontent that our Prime Minister’s survival may rest upon it.

Introduced by the Keating government in 1995, Section 18C makes it illegal to “offend, insult, humiliate or intimidate” anyone on the basis of race.

Yet two decades later Australia is still a hotbed of racism — and that’s according to the people who think that 18C actually works.

This is the first absurdity of the argument: That we need a law to ban racism because despite a law banning racism Australia is still racist.

Supporters of 18C point to Pauline Hanson as the prime example of this. The only catch is Hanson has flourished not once but twice while 18C was in full force. If Hanson is truly the unstoppable racist juggernaut her opponents fear then 18C has been an abject failure.

Instead Hanson has been brought undone by political collusion by the major parties and her own party’s dysfunction. Most recently One Nation was crippled at the WA state election after her idiotic comments about vaccination. It wasn’t 18C that brought her down, it was free speech.

Indeed, one of the most valuable roles of free speech is that it gives people the freedom to look like idiots. Ban free speech and those same people look like victims.

Speaking of looks, the other problem with 18C is that they can often be deceiving.

Over the course of a career exposing racism I have been called many things by my friends in the white supremacist community. One typically witty rejoinder was to label me a “kike” and photoshop me as a Hasidic Jew.

Now as far as I know I am not a Jew, despite having a lifelong tendency towards sarcasm, anxiety and Woody Allen films. But I do have dark curly hair and a German grandfather.

In short, there is every chance that somewhere in my background there is a Jewish strain and if I found it I could haul a couple of anti-Semitic skinheads through the courts. If not, it’s just another day at the office.

Either way, they’re clearly racists. The only thing determining whether they’d be prosecuted or not is what race I turned out to be. It’s not their abuse that matters but the capacity in which I am able to be offended by it.

This is the problem with a law that categorises people based on the status of the victim rather than the crime of the perpetrator.

The other question is what constitutes a race anyway?

Recently there have been calls for the word “ranga” to be treated the same way as a racial slur and be banned from usage. During my short-lived radio career I once got a caller saying it was as bad as “the N-word” and another impassioned protest came from my dear colleague Andrew Rochford, a top bloke exasperated by kids bullying his redheaded son.

Firstly, I know how he feels: When I see my own son get picked on I want to wade in with a baseball bat, which is probably a slight overreaction to a bunch of three-year-olds on a trampoline.

So why shouldn’t the word “ranga” be banned? Why shouldn’t redheads be included as potential victims of racism under 18C?

Well, for a start it would rule out half the jokes about Pauline Hanson and Donald Trump, whose hair has at least two Twitter accounts. Suddenly those decrying racism might find themselves up on racism charges themselves.

That is the problem when you create laws that ban words instead of deeds. It’s all well and good when the people in power agree with you but it can quickly turn dangerous when they don’t. What happens if the clichéd left-wing denouncement of “dead white males” is banned by a conservative Human Rights Commission? Or if those naked statues of a pale, small-penised Donald Trump were deemed to be racial vilification? (We all know what they say about white guys…)

Perhaps those activists and artists would have a defence under 18D. Fine, let them go through the process and see how they like it. In fact why don’t we just require everyone to prove how non-racist they are. That’s how the justice system works right? Guilty until proven innocent?

All decent people know that racism is ugly and abhorrent, as is any kind of discrimination. That’s why when it is voiced in public it is almost universally decried and denounced by the vast majority of Australians.

And when such attitudes result in harassment or intimidation or incitement to violence the perpetrators deserve nothing less than the full force of the law. I’d be more than happy to see them in the slammer.

But when the law encroaches beyond actions and into the world of words and ideas then it should chill all our blood, no matter where it hails from.

Because the real reason free speech matters is not that there is an entire population just waiting to abuse people as soon as the law gives them the green light – what a moronic concept that is. True racists, true abusers, don’t give a rat’s arse about the law in the first place. If they did, there would be no racism in Australia.

Free speech matters because it is the last line of defence, it is the last check on absolute power. A government, an institution, an oppressive ideal, a single person or a group of people can never be undefeatable as long as others are free to criticise them, protest against them and – yes – sometimes even offend and insult them.

This means protecting people who speak out against Pauline Hanson and Donald Trump just as much as it means protecting people who speak out against misogyny in Islam or abuse and neglect in Aboriginal communities – as several brave black women have recently done, as well as a certain white man.

Free speech isn’t just the air we breathe, it’s the oxygen mask we need when everything comes crashing down. The hope, perhaps our only hope, is that as long as people can speak freely then reason will eventually prevail.

And if it’s reason and not race that matters in our national debate then soon we will have a nation where race doesn’t matter at all.

Isn’t that what we’re all supposed to be striving for?