As the Parliament assembled recently, West Australian Liberal senator Chris Back jovially compared the behaviour of parliamentarians who regularly "insult and offend" each other with the provisions of the Racial Discrimination Act's section 18C. Back is undoubtedly correct about the politicians and he's undoubtedly the appropriate expert to speak on this matter. But the analogy he seeks to draw is profoundly misconceived because politicians' point-scoring is not really comparable to insulting and offending on the basis of race.
I'm sure Back doesn't regularly insult his Indigenous colleagues on the basis of their race. Were he to have done so, we'd have heard about it and he probably wouldn't have been elected. If he now tries it in the chamber, he'd be ruled out of order for unbecoming and unparliamentary language. Even parliamentarians have standards.
Race-based insults get special treatment by the law because such insults conjure up the history of racism that's too poisonous and damaging to go unchallenged. I'm sorry to state the obvious but, just in case we're forgetting, the history of racism brought us slavery, the Ku Klux Klan and the holocaust. Closer to home, it brought us massacres during "settlement" (it wasn't terra nullius), the stolen generations and ongoing injustices resulting from our failure to acknowledge or deal with this history. It's now bringing us continuing failures to close the gap, leaving us with racially skewed incarceration rates, deaths in custody and a life-expectancy gap that should identify us as a third-world country. And that's just the immediately recognisable tip of the iceberg, without even touching on other forms of racism, including our historical and current immigration practices.
Against this historical backdrop, when someone insults and offends using race they're not just pressing on a sore point, they're digging into an unhealed, suppurating wound. Don't suggest to the victim of a racially based insult that it's all just part of the fun.
In an 18C case in 2012 (Clarke v Nationwide News Pty Ltd trading as The Sunday Times), the Federal Court's Justice Michael Barker recognised the difference in the nature of insults: "Communications about a historically oppressed minority group are far more likely to cause relevant harm to that group, than communications which relate to a dominant majority."
Racially based insults are also known to harm people's health and well-being. Deakin University academics Naomi Priest Dominique Allen point to international epidemiological evidence showing racism affects physical and mental-health outcomes. They say the "harmful health effects of racism are not constrained to the more extreme forms of racism such as physical violence. Verbal racial abuse and vilification are also harmful to health." Many other studies confirm these views.
We should know all this already because those with a lived expertise – the appropriate experts – have told us so. Noel Pearson, Pat Dodson, Mick Gooda and Tim Soutphommasane, for a start, have all said the Racial Discrimination Act gives some support to the vulnerable and should be left unchanged. Unfortunately, it's difficult for people not subject to these abuses to understand these matters fully.
Ironically, some (white) human rights lawyers may have provided indirect support to the call for amendments by suggesting the initial wording in 18C was not ideal. Speaking academically and in retrospect, it could be true that a better phrase might have been to "vilify" rather than to "insult and offend". "To vilify" has an established jurisprudence but, in fact, while doing their job over the 20 years that the provisions have been in place, the courts have developed that jurisprudence, construing the provisions and sensibly settling their meaning, thereby making legislative amendment unnecessary. They've established authoritatively that to "insult or offend" under 18C it must be "serious", and they've introduced a requirement that the question as to whether 18C has been breached is to be judged by reference to a relevant "reasonable person", which avoids the dangers of a subjective interpretation by an oversensitive victim.
Given that the act's words have already been effectively judicially amended, the campaign for further amendments seems odd, to say the least. It also makes you wonder whether the campaigners have considered the broader public health and social effects of their campaign.
But what seems oddest of all is that this legislative agenda is being pursued as a matter of priority over the far more egregious inroads into freedom of speech that our defamation laws create, or our national security laws, or even aspects of our industrial laws, etc. Why is the right to insult and offend being supported so fervently rather than the right to be free of such damaging and destructive behaviour? One could speculate as to why this is ... but then again, one might not.
After all, you might already say that I was insulting or offending Back on racial grounds because I'm pointing to his inappropriate analogy and showing it lacks understanding or empathy about the nature of racial abuse – which, in turn, probably stems from his privileged position as a white Australian.
Except that any such facile observation or attempt to stretch the meaning of the act would be wrong in the context of the minefield of pain and difficulty that 18C deals with. The issue deserves more respect and careful consideration than that. And I'm just not sure this Parliament is in a fit state to undertake that careful and considered deliberation.
When someone insults and offends using race they're not just pressing on a sore point, they're digging in to an unhealed, suppurating wound.
Kirsty Magarey is a retired public sector lawyer.