LGBTI Australians should reject special group rights that undermine their human right to free speech to defend themselves.
In the new year the Federal Government is intending to deliver on its pre-election promise to repeal section 18C of the Racial Discrimination Act.
The relatively obscure provision of this federal law makes it “unlawful” for Australians to make comments that would “offend, insult, humiliate of intimidate” others on the grounds of “race, colour or national or ethnic origin”. The provision became famous when it was successfully used to silence News Limited columnist Andrew Bolt from discussing the Aboriginal identity of fair-skinned Australians.
Irrespective of what any individual thinks about how 18C has been used in the past, it should be repealed.
First, it imposes an entirely subjective test on the merit of an individual’s speech. No one knows what may “offend, insult, humiliate or intimidate” another person. It becomes doubly problematic when we are discussing offence across cultures.
Second, the subjective interpretation of this provision ensure individuals only have the choice to walk on egg shells when discussing issues that may fall afoul.
Third, it gifts special group rights for people based on a collective identity. For years LGBTI Australians have fought for the same legal standing for themselves, and their relationships. More often than not, the very intention of campaigns to change laws has been to achieve the classical liberal spirit of universality before the law, not a special status.
Section 18C represents ‘special’ rights for a certain group of people, not ‘equal’ rights.
The simple reality is that some individuals from different cultural, ethnic or national backgrounds don’t accept people being same-sex attracted, and make it known. If section 18C is allowed to stand they can throw hostile verbal bombs at LGBTI Australians, but retreat to the protections of 18C should LGBTI Australians respond.
Fourth, it fundamentally undermines the human right to free speech. Sadly, human rights no longer appear to have the standing they once did.
A classical liberal approach to human rights saw them as a very narrow number of protections for individuals from the abuse of power of government. This includes speech, association, movement, religion and property – which include both physical property and the right to own your own life and self-determination. They were limited, sacrosanct and could be reasonably exercised without harming another’s human rights.
Arguably the most important is free speech, because it is necessary to protect all other human rights.
Understandably, we all go squeamish when we are called to defend the principle of free speech. We are never called to defend it when people say “please” and “thank you”, only when individuals say something that at least someone doesn’t like. It’s the spirit of the often-apportioned quote to Voltaire that “I do not agree with what you have to say, but I’ll defend to the death your right to say it”.
But the solution is more speech, not less. We should preserve the right to speak out, mock them and ridicule them for the stupidity of their comments or the hate in their heart.
And that also applies for incorrect statements. Free speech isn’t limited to factual accuracy. If it were, we’d never have a contest of ideas where ideas are proposed, exposed and corrected.
The argument behind 18C is to afford some people higher legal standing than others for factors outside their control. It’s the antithesis of equality before the law.
As LGBTI Australians know: haters gonna hate. So we should defend our human right to speak out, defend ourselves and ridicule narrow-mindedness without fear.
Tim Wilson is a policy director at the Institute of Public Affairs – www.ipa.org.au He tweets @timwilsoncomau
Diversity Council Of Australia boss Nareen Young does not agree with Tim. See her post here.
