The right to call someone a Balmain basket weaver is not curtailed by section 18C of the Racial Discrimination Act. Balmain residents are not defined as an ethnic group, at least not according to law.
As Race Commissioner Tim Soutphommasane assured readers of The Age recently:
The law only covers acts with a clear racial basis. It doesn’t extend to trivial slights.
Yet the legal definition of racism is not clear cut, as the recent judgment of Whiteoak v State of New South Wales demonstrated. The NSW Anti-Discrimination Act 1977 states:
‘race’ includes colour, nationality, descent and ethnic, ethno-religous or national origin.
It the Whiteoak matter, the NSW Civil and Administrative Tribunal treats the terms citizenship and nationality as synonymous:
The Tribunal is satisfied that the Applicant’s citizenship of the United Kingdom is an aspect of race for the purposes of ss 7 and 19 of the AD Act.
The ruling creates problems, not least for the anti-discrimination industry itself, as I explore in The Australian today.
Should we be surprised about the intensity of the debate over the abolition of 18C when we find it difficult to agree what race or racism actually mean? The Race Commissioner only adds to the confusion by introducing the concept of casual racism. In The Age last August, Soutphommasane wrote
We all know the sort of racism I’m talking about.
Do we really? As Soutphommasane writes in Don’t Go Back to Where You Came From, there is considerable dispute about whether race identity must have a genetic component or if it is merely an expression of shared cultural identity. He writes:
We may all recognise that racism constitutes a significant harm, but determining what must count as racism isn’t always easy. The notion of cultural racism complicates things. Admittedly, what sociologists call cultural racism could be more helpfully labeled as cultural intolerance or cultural bigotry. For if racism can assume a cultural as well as biological form, this appears to imply that all cultural identities must be entitled to equal respect and recognition.
Now we’re getting somewhere. Defining race as cultural, as well as biological, drives the debate into difficult ground, as Soutphommasane acknowledges:
Clearly, there must be limits to what we should recognise as cultural identity worthy of our respect and endorsement. If not, a community would find it impossible to object to some cultural practices, including those that run counter to fundamental liberal democratic values. Consider, for example, the case of a member of an immigrant community who argues that the practice of polygynist marriage is necessary for the maintenance of their religious or ethnic culture… Would objecting to such a cultural practice amount to an expression of ‘cultural racism’?
Soutphommasane’s helpful exploration of these difficult issues was cut short by his appointment to the Human Rights Commission. He has now become an intransigent defender of flawed legislation that attempts to put legal boundaries around a poorly-defined form of intolerance.