The Bloke in the Pub: Set to Take Charge of the Racial Discrimination Act

The Australian Government's proposed amendments to section 18C of the Racial Discrimination Act have largely been characterised as enshrining free speech on one hand, or giving licence to hate speech on the other. Much commentary centres on the replacement of the words “offend, insult or humiliate” with the term “harass” in the Act, and what that may mean for minority groups and those who would pass judgment on them in the public sphere.

What I find more interesting is that alleged racist conduct falling under the Act should, according to the Attorney-General, be tested against and judged by, “the objective standards of the ordinary member of the Australian community”. Whereas the current legislation tests allegedly racist conduct against the offence, insult or humiliation a reasonable person from the particular ethnic or minority group might feel, the Attorney-General says the standards of an "ordinary member" of the community are more objective, thus more valid, more real, more acceptable.

So, who, exactly, is this ordinary, reasonable member of the Australian community? And where can one meet him or her?

Let’s defer to The Australian, which, in their 18C Free Speech special edition from March 22, 2017, proudly proclaims to have “led the charge for reform” and lauds the Prime Minister for being a champion of free speech. According to its writers, the Government’s proposed changes have the effect of introducing a “pub test" (David Crowe) and “promoting the rights of the common man” (Dennis Shanahan).

So perhaps we’re getting a little closer to who this ordinary member of the Australian community is. It’s a bloke in a pub. And it’s his standards, his views and his values, that the Government believes should determine whether conduct against someone from an ethnic minority constitutes harassment or not.

And of this bloke in a pub, how long’s he been in there? Is he on his first schooner, his second, or his tenth? Is he staggering towards the exit? Does he know how important he is now? That he should be switching over to light beer (probably Coopers) if he is to conduct this pub test – to display his “objective standard” – with any degree of lucidity?

The Prime Minister said the changes to the legislation are designed to make the law clearer. Well, it’s now so clear I’m picturing a bloke in a pub as the moral compass of Australia.

In some ways, I agree with the sentiment the Attorney-General expressed several years ago: people should have the right to be bigots. People should be allowed to think, feel and say what they like, but they should do this behind closed doors. The existing laws already afford them this right. As Mariam Veiszadeh so eloquently put it, “You have a right to walk wherever you like but that right does not extend to walking over me”. What the proponents of the changes are saying, is that offensive, insulting and humiliating conduct should be allowed to extend beyond the private realm. In a society such as ours, they say, free speech should trump basic human decency.

But what, please tell me, does the bloke in the pub think?

Commentators, such as Andrew Bolt, in supporting changes to the legislation, invoke the old schoolyard saying, “sticks and stones can break my bones, but words can never hurt me.” I’m not sure if they realise this or not, but they don’t teach that at school anymore. Thankfully, they teach kids about anti-bullying and respect. Because society has evolved to understand that words can hurt people; that words underpin and inspire the physical harm of others; indeed, that words can, and often do, inspire people to harm themselves.

You say you’re protecting freedom of speech, I say you’re protecting bullies.

But what, please tell me, does the bloke in the pub think?

Kristen Hilton, Victorian Equal Opportunity and Human Rights Commissioner, speaking with Jon Faine, said that proponents of changes to the legislation, have perhaps demonstrated a “failure of imagination”; a failure to empathise and imagine the lived experience of people from marginalised backgrounds.

They’ve also failed to imagine that the values and the standards of that bloke in the pub, of that “reasonable, ordinary Australian”, are neither immutable nor objective; that those standards might sink lower and lower in response to the deeds of the Nation’s leader; that they might sink lower and lower with each passing beer.

Or perhaps they did imagine this, and that’s a scarier proposition altogether.