It took three failed attempts before the bill finally passed the Senate in 1975. Queensland National Glen Sheil was one of its more vociferous opponents, arguing that the bill ‘would have “the most dangerous effect” of creating “an official race relations industry with a staff of dedicated anti-racists” intent on persecuting white Australians’.

A handful of die-hard critics would say this is just what has come to pass, but Soutphommasane reminds us that the provisions of the act are civil, not criminal. It makes discrimination unlawful, but it does not create an offence for which anyone can be prosecuted or convicted. Most complaints brought to the commission relate to allegations of racial discrimination regarding employment, accommodation, or the provision of goods and services. It is hard to argue against creating a pathway for redress for the Aboriginal woman who is refused a hotel room or the African Australian man subjected to constant racist taunts at work. In the vast majority of cases, complaints are conciliated in a process that aims to be ‘accessible, private and flexible’. Only about three per cent end up in court. While some complaints are resolved with monetary compensation, others involve an agreement to change policies, conduct training, or an apology.

Along with handling complaints, another major purpose of the act is to educate. This book is an example of such work, as is the Human Rights Commission’s recent campaign ‘Racism. It Stops With Me’ – for which AFL footballer Adam Goodes is a prominent ambassador.

‘It took three failed attempts before the bill finally passed the Senate in 1975’

Despite its contested provisions against racial vilification, the act cannot be said to ban free speech. Section 18C (as amended in 1995) makes an act unlawful if it is ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people’, and if the act ‘is done because of the race, colour or national or ethnic origin’.

There are important exemptions. Firstly, Section 18C does not capture acts done in private. Everyone has the right to be a bigot at home. Secondly, Section 18D exempts artistic works, scientific debate, and fair comment on and fair reporting of a matter of public interest, provided this is done in good faith. In other words, there is still a great deal of scope for expressing unpopular, difficult, and unsavoury views. (The claim that the Charlie Hebdo cartoons of the Prophet Mohammed would have been banned in Australia because they offend Muslims is a furphy, since the act says nothing about insulting a person’s religion.)

Tim Soutphommasane

As Soutphommasane points out, we accept all sorts of limits on freedom of expression in all manner of settings. Offensive language is not allowed in parliament. Nudity is restricted on television and on billboards. Australia’s defamation laws and court suppression orders constrain journalists. Soutphommasane finds it strange that so much ‘passionate attention’ is paid to a law that ‘offers modest, but nonetheless important, protection for people against racial vilification’.

Sections 18C and 18D balance the right to free speech and the right to be protected from harm. Anyone who thinks that hate speech cannot harm should read Martin Luther King Jr’s letter from Birmingham Jail, in which he attempted to explain to well meaning liberal clergy why African Americans were so impatient for change:

when your first name becomes ‘nigger’, your middle name becomes ‘boy’ (however old you are) and your last name becomes ‘John’, and your wife and mother are never given the respected title ‘Mrs’; when you are … plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of ‘nobodiness’, – then you will understand why we find it difficult to wait.

The question Soutphommasane poses for those who want 18C repealed is this: ‘What is it that you want to say that is not already protected by the legislation’s free speech exemption?’

‘Soutphommasane reminds us that the provisions of the act are civil, not criminal’

As an Australian of Lao and Chinese heritage, Soutphommasane flecks his text with some personal experiences of racial discrimination and unconscious bias. When he told a new acquaintance that he worked at the Human Rights Commission, for example, the next question was whether he worked in the finance or the IT section. The question, writes Soutphommasane, revealed some assumptions ‘about what someone who looked like me was likely to have as an occupation’.

In addition to the author’s vignettes, there are five short essays from other writers providing personal perspectives on racism and discrimination. The most powerful is Christos Tsiolkas’s ‘A Mongrel Multiculturalism’. Tsiolkas describes his cautious and slow-building acquaintance with a young refugee from Africa who attends the same gym. They progress from nods of greeting to brief conversations about personal histories and global politics. One day in the steam room it all goes horribly wrong. A third man, obviously and openly gay, attempts to engage them both in conversation. The refugee refuses to respond and as soon as he and Tsiolkas are alone, he lets loose with homophobic invective. Tsiolkas admits to cowardice in not revealing his own sexuality in response, but this is the difficult terrain of a pluralist Australia:

Certainly I understand that it was a small and arguably trivial exchange but nevertheless it still disturbs me for the way it challenges my faith in the achievements of multiculturalism and of how it reminds me of the difficulty of standing up to hate speech. I was humiliated in that moment from both my gutlessness in response to his diatribe but also ashamed in recognising that this young man saw me as a sickness and an evil. But I was also saddened, disappointed in his ignorance, but more importantly, let down by his lack of civility.

The need for civility is an important strand in Soutphommasane’s argument. He describes Section 18C as ‘setting a norm for civility in a multicultural society’ and argues that civility requires ‘a certain discipline’. This is a partial response to the question of whether a law can drive a change in cultural norms. To quote King again, he said that the claim that you cannot legislate morality is half-true: ‘But we must go on to say that while it may be true that morality cannot be legislated, behaviour can be regulated. It may be true that the law cannot change the heart but it can restrain the heartless.’

It is impossible to quantify the extent to which the Racial Discrimination Act might have reduced racism and increased civility over the past forty years; but if laws give expression to public morality and articulate our ‘aspirations for fairness and justice’, then the act is important and worth defending.