If you read The Australian you'll know not everyone is happy with Section 18C of the Racial Discrimination Act. It declares illegal any act 'reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people'.
The campaign against the provision has gained force from the untimely death of gifted artist and cartoonist Bill Leak, against whom a complaint was brought for a cartoon depicting an Indigenous father and son.
Some politicians and the newspaper itself want 18C abrogated or substantially amended. The most recent suggestion is that 'reasonably likely' should be defined as the judgment of reasonable Australians — a 'pub test'.
Other politicians and community groups want it left unaltered. And many politicians, notably Barnaby Joyce, just wish the issue would go away. Most onlookers are more curious about the reasons why the people who propose and oppose change are so passionate.
Those who advocate change usually argue that to limit free speech as 18C does is a dangerous infringement of individual freedom.
Many critics also display a strong commitment to the free market. For them the economy and so national welfare are served only by competitive individuals and companies pursuing gain free from regulation that will protect particular individuals or groups. It is unsurprising that the sections of the media most in favour of neoliberal economic settlement demand most strongly the repeal of 18C.
Those against change argue that minority racial and ethnic groups are entitled to protection from vilification, and that it is in the interests of the whole community to legislate to ensure that they are safe. They argue further that there is an imbalance of power between media and the individuals and ethnic communities that they choose to attack. Legislation that establishes boundaries is desirable.
This analysis suggests that the argument about 18C is only part of a larger dispute about the proper place of government in public life, and about how the individual's freedom of speech and economic activity may be subject to regulation in order to protect the common good.
"If the patrons after a long night's drinking are made the arbiters of what would reasonably offend, those offended will see the process as a kangaroo court."
In a perfect world, a case could be made against having such legislation at all. The risk inherent in focusing on the legality of abusive speech is that we shall be drawn away from asking what kind of speech is ethically responsible. To ask how as human beings we ought to speak of one another is a more profitable question than to ask what should be made illegal. It is better that decency should commend self-discipline and respect in our speech than that we should rely on law to forbid abusive speech. The making of laws is always a confession of social failure.
In fact the limitations imposed by the act on freedom of speech are fairly small. Exemptions from the application of the law in 18D are broad — the complaint against Bill Leak was withdrawn but almost certainly would have failed because of 18D exemption — and the consequences of breach relatively mild. Acts that contravene it are not criminal but illegal. They therefore may not be prosecuted by the police and are subject only to civil suits. As a result relatively few cases have been brought, and very few have been successful. It might be argued, then, that the law is unnecessary.
Those arguments, however, ignore the symbolic force of law in an imperfect society in which we live. Indigenous Australians and immigrants from Islamic nations regularly report experiencing racist discrimination and abuse from a minority of Australians.
In public life the One Nation Party, which is able to exert some influence on legislation in a fragmented parliament, regularly criticises Muslims and demands an end to Muslim immigration. These views are also retailed by commentators in some mainstream media. They increase the anxiety of immigrants from Muslim nations.
In such a context any weakening of 18C will inevitably be seen both by the communities themselves and by those who hate them as the declaration of an open season upon them. The symbolic effect of such change on the confidence of minorities that they will be protected by Australian laws and institutions will be great. The common good demands the slight infringement on individual freedom.
The proposed 'pub test' change to 18C has a superficial appeal. It requires the judge to enter the world of reasonable Australians instead of entering the world of the persons offended when deciding whether an act is illegal.
The force of this change, however, is evident in its characterisation as a pub test. Traditional pubs attract few people from Islamic nations, and in them long-standing prejudices are likely to be aired. If the patrons after a long night's drinking are made the arbiters of what would reasonably offend, those offended will see the process as a kangaroo court. Others will see it as an assertion of the power of the strong over the weak.
Andrew Hamilton is consulting editor of Eureka Street.