My submission to the Parliamentary Joint Committee on Human Rights

I have put in a submission to the Parliamentary Joint Committee on Human Rights. My argument: 18C (and D) of The Racial Discrimination Act are unconstitutional.

From the document:

The general background to this paper will be known to most Australian readers: the Racial Discrimination Act contains a section, 18C, making unlawful any public act “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” when “the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.” Recently some cases have come into prominence highlighting severe problems with this formulation; we shall investigate some of these below.

I intend to present four main arguments:

• one, that 18C does not achieve its objective of prohibiting all racist speech.
• two reasons why 18C is unconstitutional:
  • the limitations of its scope in 18D grant discriminatory rights based on intelligence, education, and power;
  • it effectively bans, or makes too expensive to risk, any speech at all (good, bad, or indifferent) that relates to race and is not covered by an exemption in 18D. Due to the discriminatory nature of 18D, this amounts to an effective total ban (from a combination of actual law and fear of state retribution) on speech about race by certain classes of person.
• and, since neither of the two arguments against 18C depends upon whether one’s behaviour might “offend”, “insult”, “humiliate” or “intimidate” (or, indeed, any other “bad effect” verb that might be suggested to replace any of these), it follows that removing or altering some of these words will not fix either of the two problems I have identified.

Before I get to these arguments, there are some general issues that need to be discussed. These include:

• A preliminary discussion of the concept of “race”; this will be referred to in the arguments that follow.
• A short discussion about the sections of the Act preceding the troublesome 18C: what is right, and what is wrong, with these sections. This is necessary in order to see why, in the main arguments, the superficially similar wording of 18C to the preceding sections has such different consequences.

I have presented it in the form of a white paper. Here is the link to the document (pdf, 282K).

During the writing of the paper, I made an (to me at least) amazing discovery:

Remember the QUT (Queensland University of Technology) students, who were sued for $250,000, just for voicing an opinion about QUT's having a racially segregated computer lab? One would think that an anti-discrimination act would ban something like that. But I was imagining, as I suspect most legally informed onlookers also would, that the students were mistaken, because the Act contains an "out" that allows discrimination against whites and, sometimes, other supposedly 'relatively privileged' groups. It allows all its fine sentiments to be overridden by the flea-bitten UN "International Convention on the Elimination of All Forms of Racial Discrimination."

That sneaky document says (and pay careful attention here, because something important is buried here):

4. Special measures taken for the sole purpose of securing adequate advancement
of certain racial or ethnic groups or individuals requiring such protection as may be
necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

The problem for our valiant students is that all QUT has to do (and they did it - see the white paper) is declare that this racist lab exists to "secure adequate advancement blah blah", and bingo! the lab is legal and all the fine prohibitions against treating different races differently are null and void.

What I am about to show you is only indirectly discussed in the white paper, but I'll make it explicit shortly. First, I want to alert you to the fact that this whole mess exposes the folly of having laws, "conventions", etc., that discriminate based on mental states of the people involved. The whole 18C debacle hinges upon the mental state of having any assertion about race as a reason for arriving at some conclusion, and here, this UN convention allows discriminatory action based on someone's "purpose". Not, please note, on the actual effect, but simply on someone's mental state, their intentions.

Now to my discovery:

The QUT indigenous-only computer lab is indeed illegal.

On the surface, it looks as if QUT's vice-chancellor Coaldrake has covered his bases:

A week after the 2013 incident, QUT vice-chancellor Peter Coaldrake issued a notice in
support of the Oodgeroo Unit, saying it was an integral part of QUT’s policy approach to reconciliation, equal opportunity and anti-racism. ...,’’ he had said. (from http://www.theaustralian.com.au/higher-education/qut-staffer-invited-to-...
offenders/news-story/5a5dddfe2c75a224b1c92826835a0a63)

But sadly for Coaldrake, "purpose" can bite the bad as well as the good. See how Coaldrake gives three reasons for the existence of this lab:

1. reconciliation,
2. equal opportunity, and
3. anti-racism.

But only one of these can possibly be interpreted as "securing adequate advancement blah blah", namely (2). Reconciliation is not adequate advancement, nor is anti-racism. Read the passage from that UN convention carefully: "adequate advancement..." must be the sole purpose of the discriminatory act.

But Coaldrake has two other purposes in addition to the only permitted "sole purpose"!

Therefore the QUT indigenous lab is illegal.

But let me add a few provisos to further expose the folly of this "purpose" and "reason" lets-get-inside-people's-heads stuff that is increasingly infecting our laws.

Suppose QUT decided they had to fix this mess; they could make the following announcement:

"Since the existing indigenous lab has three purposes, and therefore violates the racial discrimination act, it will be closed immediately. Tomorrow QUT will open a brand new indigenous lab with only one purpose, namely equal opportunity. That new lab will look identical to the existing illegal lab, will have the same staff and the same restriction against access by whites. But, having only one purpose, it will be completely legal."

Ridiculous, no?

This exposes the deeper problem with this "sole purpose" stuff.

Let's suppose QUT has two different ways in which it can provide special discriminatory access to indigenous students; let's call them "A" and "B".

• Method A provides a special lab for indigenous students, and nothing else.
• Method B does likewise, but is so much cheaper and better organised that QUT can give a free computer to every student with the money saved.

If, in their planning meetings, QUT says "Let's go with method B, we can do much better for everyone that way."

Well, method A is legal, but method B is illegal, as it has a second purpose.

And they tell us that sane, competent people draft these laws and conventions.