18C makes us all tongue-tied - The Centre for Independent Studies
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18C makes us all tongue-tied

Free SpeechThe Charlie Hebdo massacre has renewed calls for the federal parliament to amend Section 18C of the Racial Discrimination Act (RDA). According to Race Discrimination Commissioner, Tim Soutphommasane, this is not needed to restore free speech because the RDA already protects fair comment on matters of public interest.

Unfortunately, Soutphommasane's confidence in the alleged safeguards for freedom of thought and expression are misplaced. In the wake of the Andrew Bolt case, Section 18C will silence the important debates and discussions we should be having about Indigenous affairs.

The number of Indigenous Australians increased by 21% between 2006 and 2011, and was largely driven by an increasing numbers of people self-identifying as Indigenous based on family history and descent.

Some of these people look and live much like non-Indigenous Australians, and have suffered few obvious difficulties due to their Indigenous status. The new identifiers are also like the majority of Indigenous Australians who are urban-based, have high rates of intermarriage, and have social outcomes that rival their non-Indigenous peers.

Providing many of in this group of Indigenous Australians with race-based government assistance, such as Abstudy, arts scholarships or preferment in public sector employment,  will do little to overcome Indigenous disadvantage.

Indigenous identity and entitlement is therefore a genuine public policy issue and should be a legitimate topic for public discussion. However, Andrew Bolt was successfully prosecuted under Section 18C precisely because he questioned whether so-called ‘light-skinned Aborigines’ should automatically receive special help. Who now will want to raise this issue and face the risk of also being charged with racial hatred by an offended individual or group of individuals, given the Bolt precedent?

The fear of potential legal action under the RDA also means the nation will debate the question of recognising Indigenous people in the constitution with its tongue tied.

Proposals for Indigenous Recognition start with acknowledgement of traditional ownership, but also include calls to outlaw discrimination, establish a right to traditional culture, and even reserve seats in parliament for Indigenous representatives.

If one section of the community is seeking special legal privileges, we should be able to freely and frankly discuss the merits of these claims. But a free and frank debate will not occur so long as Section 18C remains on the statute books.

Section 18C also impacts on my own work on the controversial topic of Indigenous child protection.

Many Indigenous children who need to be removed from their families are subject to the Aboriginal Child Placement Principle (ACPP) and are placed with a relative or members of their community. This is done to maintain contact with Indigenous culture in the name of thereby ensuring children retain their Indigenous identity. In practice, the ACPP means that some children are removed from dysfunctional families only to end up living in equally dysfunctional circumstances especially in rural and remote areas.

The ACPP is anachronistic compared to modern Indigenous identity. Many Indigenous people have little contact with traditional customs and lands, and yet this does not prevent them from identifying as Indigenous.

It is therefore legitimate to question why we are persisting with the ACPP. And we should also be able to point out some obvious double standards. Supporters of the ACPP include some members of the Indigenous elite whose own children enjoy all the benefits of mainstream society. Yet they defend a policy that denies the most disadvantaged Indigenous children from enjoying the same opportunities, and based on a definition of Indigenous identity they deem irrelevant to their and their children's identity.

But guess what could happen if these people were called out?  Academic Anthony Dillon has written that after the Bolt case, as a part-Indigenous man he can say, and not get sued for saying, statements about Indigenous identity that a non-Indigenous person would be highly likely to be sued for saying.

With this advice ringing in my ears, Section 18C means I self-censor. I don’t go as hard on the question of the ACPP and Indigenous identity as I might, because of what might happen if I push too hard.

This is what critics of Section 18C mean when they talk about the silencing effect of so-called 'hate speech' laws. Free speech is stifled to avoid running the legal gauntlet, and public debate is the worse for it.

Jeremy Sammut is a Research Fellow at The Centre for Independent Studies