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March 29th 2014 print

Peter Smith

18C Or Not, Victimology Is Here To Stay

They can amend the law or scrap it entirely and the impact will be minimal. With the courts populated by activist judges, political weathervanes and paid-off party hacks, the surest bet is that those looking to take offence will find new and innovative ways to crimp others' speech

offendedApparently, the Coalition took abolishing 18C of the RDA to the election, so I suppose there is some justification for its proposed amendments. But it seems to me to be the worst option to take. The other options were to let the whole thing quietly slip off a crowded agenda (quite easily the best political option) or to abolish the provision without ado. Now the whole process will be stretched out, using up political capital when there are much bigger fish to fry.

As it stands, 18C unnecessarily limits free speech. However, to be clear, if people were routinely being publicly ‘insulted’ and ‘humiliated’ (leave aside ‘offended’, which sits uneasily with the other two) on the basis of their ‘race, colour or national or ethnic origin’ then a legal remedy is justified. Free speech isn’t a licence to throw racist barbs at others. All decent people surely support the proscription of racist chants at soccer matches, which used to be common fare.

To my mind, the issue with 18C has nothing with the provision itself. The issue is that it seeks to counter a problem which simply doesn’t exist in Australian society. On that basis, and only on that basis, it is unnecessary.

Some might say, well, what difference does it make? If it is unnecessary it won’t be used. Unfortunately that leaves out of the picture vexatious lawsuits and activist judges. These days making it unlawful to offend, insult or humiliate, on the basis of race, colour or national or ethnic origin is a gift to putative victims and their lobbies. And they have never been so numerous or well organised. It also provides enormous scope for judicial activism on the part of those on the bench who believe the courts are an instrument of achieving not simply justice but social justice.

So what should be done? Nothing, is my answer. There is a great deal of difference between not enacting 18C and getting rid of it once it is in place. It has already led George Brandis to lose enormous political capital by saying that ‘people do have a right to be bigots’. Sure, Mr Brandis, people do have the right to be ‘prejudiced in their views and intolerant of the opinions of others’. But what has that to do with the price of eggs? Do they have the right to give public expression to their bigotry in an effort to insult or humiliate others? Nobody likes bigots. Even bigots don’t like bigots because they don’t know that they’re bigots. Brandis succeeded in giving an enormous free kick to his political adversaries

Of course the blame can’t really be sheeted home to Brandis’ injudicious comment. Debate about bigotry and prejudice and racism was bound to happen by opening up this can of worms. Moreover, the whole exercise is pointless. The real problem is not the existing legislation,  and it won’t be solved by the proposed amendments.

While the amendments are better directed in outlawing intimidation (causing fear of physical harm) and vilification (inciting hatred) they won’t close the gates on vexatious prosecutions. Someone who might previously have claimed to have been insulted, offended or humiliated will be able to claim to have been intimidated or vilified. This will be assessed against ‘the standard of an ordinary reasonable member of the Australian community’. An activist judge could make hay with that one.

Who is this ‘ordinary member of the community’ anyway? Where exactly does he or she draw the line between acceptable comment and racial intimidation or vilification? It is ridiculously open to interpretation. As to reasonable, the people I interact with are only ever reasonable when they agree with me and seldom do I find someone who agrees with me about everything.

The real problem is not the legislation, in whatever form, but the growing cultural misapprehension that governments can engineer human and social perfectibility through legislation. This won’t be stopped by tinkering with 18C or even of getting rid of it. Other devices will be found. It simply won’t be stopped.

The game is lost. It is the age of the victims; those whose success or, more to the point, lack of it, is determined by others. In psychology it is referred to as the ‘locus of control’.

Those with a high internal locus of control believe that charting the path of their lives is primarily up to them. Those with a high external locus of control believe that their lives and their failures are controlled by external factors which they cannot influence. Undoubtedly, this latter constituency has grown as dependency on government has grown. And, unfortunately, those whose locus of control is externally-oriented tend to be less successful for obvious reasons. It is one of those vicious circles we hear about.

Peter Smith, a frequent Quadrant Online contributor, is the author of Bad Economics