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The final insult

Nicola Roxon’s proposed law demeans all Australians, particularly minorities

5 January 2013

9:00 AM

5 January 2013

9:00 AM

On 18 February, the Senate Legal and Constitutional Affairs Committee will report on submissions from the public regarding the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012. Among other adjustments to existing anti-discrimination legislation, the Bill proposes to broaden the definition of discrimination to include conduct that ‘offends’ or ‘insults’ a person on the basis of various ‘protected attributes’ (clause 19-2). Many of the ‘protected attributes’ are things that everybody has — such as an age, a race, a sex, a nationality and a social origin — and therefore all Australians could soon be protected by law from many of the offensive and insulting experiences of daily life.

Section 51 of the Bill — the bit on racial vilification — has not really changed from existing law, which not only forbids ‘racist’ conduct that causes an individual to feel offended, insulted or humiliated, but also forbids conduct in the public domain that might offend some people of a given racial group. Theoretically, the prohibition of ‘racial vilification’ offers protection to everybody, since everybody supposedly has some sort of ‘race’.

In practice, however, the prohibition of offence and insult is mainly for the protection of special people like me. Section 51 puts me under the protection of a higher authority, with the power to decide what sort of nasty remarks in the public domain would probably offend, insult or humiliate me as an ‘Aboriginal’ or a ‘person of colour’. Clause 19-2 means that those around me must avoid acts or omissions that might offend or insult me as a woman, a brownish person, a person of Aboriginal descent, or my various other ‘attributes’ that apparently render me more vulnerable and emotionally sensitive than regular folk.

This law would oblige those around me to anticipate my feelings and limit their behaviour accordingly; it is based on an assumption that I am so enfeebled by my attributes that I would be unable to handle my own feelings in the face of obnoxious conduct. So psychologically fragile are Aboriginal people, ethnic people, brown people, female people, queer people and all manner of other ‘protected’ people that the state must ensure that our delicate sensibilities are shielded from the nastiness of the world. As an autonomous adult, I cannot think of a single human being whom I would ever trust to decide on my behalf what I could and could not bear to hear about myself — and I deeply resent anyone who presumes to do so. This proposed law strips me of my dignity in a way that another’s malicious remark could never do; it reduces me to the status of a child.

Where is the outrage from feminist academics and media professionals, whose job it is to critically analyse a proposal such as this, casting a sceptical eye over the state’s chivalrous intent to prevent our dainty ears from hearing dirty words and oafish commentary? Perhaps today’s professional feminists are too busy Slutwalking, blogging about Fifty Shades of Grey and hating on Tony Abbott.

Are Aboriginal people really so eager for the state to determine and deal with ‘offensive’ and ‘insulting’ rhetoric on their behalf? When did Aboriginal people decide the judiciary could be trusted to understand and represent their collective feelings? Is there even such a thing as ‘collective feelings’ of Aboriginal people (or people of any other ‘racial group’, for that matter)?

In a 2004-05 survey of Aboriginal and Torres Strait Islander people[1], 84 per cent of respondents said they had not experienced racial discrimination in the previous 12 months. Those that had experienced discrimination were asked how they had felt about it: 67 per cent said they had felt angry, 31 per cent had felt sorry for the person who had treated them badly, and 28 per cent felt sad, ashamed or worried by the experience. (Respondents could nominate more than one feeling.) When asked what they had done in response to the discrimination, 38 per cent had talked to their friends or family about it, 33 per cent avoided the person or situation, 30 per cent tried to do something to rectify the situation and 28 per cent opted to ‘just forget about it’.

This shows that when we bother to ask, we find that Aboriginal people are as diverse as everybody else in their interpretations of, and responses to, their experiences of the world around them — there is no collective ‘Aboriginal feeling’. Ask the same questions of any other ‘protected’ group and you would see an equally diverse range of responses. Legislation that limits the exposure of the weird and the different to the realities of the world around us limits our ability to engage and respond in our own weird and different ways. Once upon a time, on a 380 bus travelling down Sydney’s Oxford Street, sat a man in a tight white T-shirt with the words in elegant font across one well-defined pectoral muscle: ‘That’s Mister Faggot to you.’ There are many more dignified ways to deal with offense and insult than sucking our thumbs while the state wags its finger at rude people on our behalf.

The people who support this proposal probably mean well. The proposal is appealing, in that it is an opportunity to do something to protect the vulnerable from bigotry and bullying, without actually having to confront such unpleasantness directly. Prohibition of rude, insensitive and boorish behaviour allows the well-meaning to do something in safety and comfort, by formally reporting any such ‘incidents’ for the proper authorities to deal with. In the absence of a law forbidding offensive speech, it falls to the well-meaning individual to speak up and express a counter-opinion, or to stay silent, appear complicit, and feel less than good about themselves. In the interests of making the world a nicer place with minimal personal risk and effort, the well-meaning among us are happy to forfeit their freedom of speech and to outsource their agency as individuals to an institutionalised moral authority. This is modern day morality-lite: all the feel-good, with zero courage.

Of the 357 submissions to the inquiry, around 20 were anonymous submissions protesting on the grounds that such a law would limit freedom of speech. While I applaud anyone who gets off their backside to participate in this important debate, I wonder about the effectiveness of such complaints when they are expressed from the safety of anonymity. If we do not give our names in defence of our freedom of speech, we aren’t really exercising the freedoms we have; if anything, our fear of exposure is proof that repression works.

In 2013, rather than continue to complain anonymously about being repressed by ‘political correctness’, let’s simply act as if these stupid laws do not exist. It’s a new year: go forth and offend. Need some practice? Take your best shot at offending me, at

Kerryn Pholi is a former Aboriginal bureaucrat and social worker, currently based in Canberra.

[1] Australian Institute of Health and Welfare 2009. Measuring the social and emotional wellbeing of Aboriginal and Torres Strait Islander Peoples. Cat No. IHW 24. Canberra: AIHW

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