Hari Sridhar is a sixth-year law student interested in the racialised and gendered impacts of the law.

In 1999, Stephen Hagan, an Aboriginal Toowoomba resident, asked the Toowoomba Sports Ground to remove a sign that read ‘E.S. N***** Brown Stand’, which was erected in honour of a white, blonde, blue-eyed footballer. The Toowoomba Sports Grounds refused, and Mr Hagan took his complaint to the Federal Court, pursuant to s18C of the Racial Discrimination Act 1975 (Cth), which prohibits acts which are reasonably likely to offend, insult, humiliate or intimidate someone due to their race.

The Federal Court dismissed Mr Hagan’s claim, stating that the public display of the word was in a ‘context which [did] not … have any racist connotation’ – even though the basis for the nickname was rooted in racism – and because other Indigenous Toowoombans did not find the sign offensive. The High Court then refused to hear his appeal, flippantly asking whether if he were a pink person, he would find a pink cement truck offensive. When Mr Hagan sent his complaint to the UN Committee for the Elimination of Racial Discrimination, the Committee found the word to be offensive and recommended Australia take appropriate steps to remove it. The then Attorney-General, Darryl Williams, and Prime Minister, John Howard, refused to do so, despite being a signatory to the Convention under which this UN body was established. Ultimately, in late October 2008, almost a decade after the initial complaint, the sign was quietly removed, citing a white ant infestation of the grandstand.

Despite political rhetoric about a proliferation of frivolous grievances, the Australian Human Rights Commission only hears approximately 100 complaints a year on the basis of s18C, with only 77 received in 2015-16.  Of these, only a few ever proceed to formal hearing, and perhaps one may reach the Federal Court. In this way, Stephen Hagan was one of the ‘lucky’ ones, despite being refused access to the High Court. The point is, a minuscule proportion of racial discrimination complaints are successful.

These figures certainly don’t support all the catastrophising about the threats to free speech that Senators Cory Bernardi and David Leyonhjelm have been fearmongering about. The so-called ‘right’ to free speech has been distorted in the s18C debate into a polarising binary: either speech is unregulated, and you have an unfettered right to make racially hateful statements, or it is regulated, and you live in an ‘Orwellian’ 1984-esque world. This dichotomy subjugates the indisputable right of all people to live a life free of racial vilification. I believe that what the figures really suggest is a profound lack of legal protection against racial discrimination. This is partly due to judges’ enculturated in white supremacist thinking, which is rendered invisible due to its normalisation in Australian society, and which also prevents most victims of racism from bringing their complaints forth in the first place.  

‘Casual’ racism – which is not really casual at all and instead indicative of internalised racial understandings – is an everyday part of the lives of many people living in a country in which they constitute a racial minority. Section 18C does not reflect the lived experiences of People of Colour in Australia – most people who endure racism are likely to be either too disempowered to complain to the AHRC, too tired or marginalised to fight, or have simply normalised it.

Making an act an offence, even if just civil rather than criminal, is a common tool for Parliament to declare its understandings of what society deems acceptable or not. Let us focus for a moment on what the current Liberal government believes we, as Australians, find acceptable. They say that a ‘reasonable member of the community’  believes that we have a right to insult someone on the basis of their skin colour, offend them because of their race, or even humiliate them due to their ethnic origin. The idea of free speech has a long history of being invoked by conservatives to reflect what is, in fact, a very narrow concept: speech which is only free when it is beneficial to dominant groups. In this instance, the continuing oppression of racial minority groups is in the interest of the small group of Benchmark Men elites seeking to foster an increasingly nationalistic, xenophobic society.

I do not think that the debate around amending s18C will create a significant amount of tangible change in the lives of those it is designed to protect. What the amendment debate has done is bring out the true colours of the common Australian body politic: a populace which seems to support the ascendancy of so-called ‘freedoms’ (for whom? from what?) over substantive equality and justice for those historically oppressed by the white majority of this nation.