When I was in the third grade, my teacher bought some goldfish as class pets, and allowed the class to name them through a majority vote. We brainstormed a list of names and then voted on our favorites. My class had more boys than girls, and though this was not necessarily apparent in the brainstormed list, it was patently clear in the voting results. “Princess” and “Goldie” were passed over in favor of “Rambo” and “Fatso.” My teacher, wanting, I’m sure, to teach us about the democratic process, kept her own feelings out of it, resisted tyranny, and let the voice of the majority stand. “Rambo” and “Fatso” won, and the class certainly learned a thing or two about the democratic process. I pitied the fish for being given such terrible names through no fault of their own, and secretly called them by other names when no one else was listening. I remember feeling a sense of injustice at the time – the deck was stacked by the simple majority in the class, and the girls’ choices had no chance at winning. (I wasn’t conscious, at the time, of the precise gender conditioning that we had all undergone to ensure that there were clear “girls’ choices” and “boys’ choices” anyway, or of the inherent offensiveness in the name “Fatso” and the fact that our teacher allowed it to remain a viable choice.)
Starting then, and bolstered by other life experiences (many of which I have written about previously for Life of the Law), I have developed a keen interest in the workings of democracy, particularly the way a majority-rules system in a diverse and pluralistic society can include safeguards to protect minority rights. I have also, since moving to Australia a year and a half ago, noted the ways in which those issues play out differently down under than they do in the U.S. The two countries are so similar – they are large, geographically speaking, share many similarities in their pattern and timeline of European colonization, and grapple with many of the same issues: immigration, the economy, healthcare, education, religion and racism. They are countries in which the vast majority of the population are not members of that country’s indigenous groups (1.4% of the U.S. population and 2.7% of Australians) and countries with problematic pasts rife with racial apartheid and racist immigration laws. Other than the side of the road you’re driving on, many urban-sprawling minor highways in the two countries might be indistinguishable, peppered with American fast-food restaurants and big-box stores.
But the U.S. and Australia are separated by more than, as George Bernard Shaw might as well have said, their common language. People often ask me about the differences, but are seldom satisfied with my answers – because they aren’t simple. Neither country is perfect; both are wonderful and frustrating in their own ways. In the last few months, Australians have been debating proposed changes to the Racial Discrimination Act of 1975, which has caused me to examine my American notions about the sanctity of free speech. As I’ve written about before, Australia has no bill of rights and, in general, much heavier government regulation than America. Australians pay about a third of their income in tax, supporting wonderful things like their public healthcare system, and irritating things like the red tape one must jump through in order to serve alcohol or make espresso. I have a Master’s degree in Education but cannot teach at a TAFE (an acronym for “Technical and Further Education”, much like a community college) without a government-issued qualification called a “Certificate IV in Training and Assessment”, obtainable for about $2,000 and several months of study at a TAFE. Many more things here are controlled, top-down, by the Federal government, than are in the U.S. Australia has a wide social safety net, a national curriculum for its schools, and laws about many things that Americans see as severe infringements on individual liberty but which make Australia safer: gun control, the enforcement of drunk driving, and public healthcare.
Drunk driving is an interesting example. In both America and Australia, it is illegal to refuse a Breathalyzer test when requested to undergo one by a police officer, due to a notion of “implied consent” – if you are driving on public roads, you have given your consent. Likewise, if there is a police checkpoint set up through which all cars on a certain route must pass, you must submit to a test if asked. I remember passing through one checkpoint in my five years in Los Angeles, a place where nearly everyone I knew drove at least a little bit drunk sometimes. On the contrary, in Australia, I see checkpoints several times a week – if you’re a regular driver, you’ll be stopped a few times a year at least. If you drive under the influence (which here is 0.05% blood alcohol content, unlike most American states’ 0.08% threshold), you are likely to get caught, fined thousands of dollars, receive hefty demerit points on your license, and if you are anything but a first time offender, much worse. The upshot? I don’t know anyone who drinks and drives here. At all. And yes, it makes me feel safer on the roads.
But the other side of the coin is that police in Australia are allowed to pull you over for no reason and ask you to undergo a Breathalyzer. Australian police are not required to have probable cause, as they are in America – they do not need to suspect you of anything or have seen you commit a traffic violation or have noticed your burned-out headlight in order to pull you over. And while administering the Breathalyzer, they can check your license, glance over your car, look for other things amiss, and issue a fine or investigate further if they find anything. People can get their licenses suspended over unpaid voting fines (the fine you get if you don’t show up for compulsory voting, another large-government eccentricity foreign to Americans) after being stopped for committing no traffic violation and registering 0% on a Breathalyser.
Of course, probable cause doesn’t always stop American cops from racially profiling individuals they pull over (as countless instances of those pulled over for “Driving While Black” will attest), but still, theoretically the onus is on the police officer to produce proof of their reasoning. Racially profiling drivers doesn’t seem to be an issue that has gotten much press in Australia (although my research led me to an instructive fact sheet on “hooning”, which, if you don’t know what it is, is well worth a read). However, even if we dismiss the possibility of racially profiling drivers as an Australian problem, it is undeniable that racism and racial profiling in other contexts in Australia (such as stopping and searching pedestrians and the disproportionate number of Aboriginal people in prison) does occur.
While there are also many nuanced differences in history, policy, and population that inform current debates on similar issues in the two countries, essentially, both nations are beautiful, diverse democratic experiments with troubling histories. Both struggle with how to maintain a peaceful, productive, and diverse society that preserves democracy while protecting minorities. Neither gets it right all the time, and both have progress to make, but both (compared with their own pasts, and compared with other nations worldwide) arc slowly toward justice. All of this is necessary, if meandering, background for the discussion of the Racial Discrimination Act, which has recently been the subject of fierce debate in Australia.
The Australian Racial Discrimination Act (RDA) states:
“It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) 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.”
Attorney General George Brandis proposes to change “offend, insult, humiliate” to “vilify,” arguing that offence, insult, and humiliation are subjective and limit ordinary Australians’ “right to be bigots”. The current law exempts most forms of public speech and publishing that are made “reasonably” and “in good faith,” provisos that the revision would also remove. The debate has been polarizing, with those in favor of the change labeled racist assholes, and the opposition, the righteous defenders of tolerance. Looking at it through American eyes, whether I like the fact of allowing racist hate speech or not, I can’t help but notice that the law is much more limiting to free speech than the American Constitution would ever permit. I’ve always bought the argument that allowing free speech, even if you disagree with it, is important because it is the only safeguard to ensure that arguments on all sides can be spoken and minority opinions cannot be silenced. Still, as Garrett Epps eloquently argues, a defense of free speech must include the concession that free speech can, and does, do harm (just ask any of the thousands of families whose loved ones’ funerals were picketed by the Westboro Baptist Church). Therefore, he goes on to say, “The reason that we allow speech cannot be that it is harmless. It must be that we prefer that people harm each other, and society, through speech than through bullets and bombs.”
The Australian politicians arguing to change the RDA are being lambasted as racists, when the law that is currently on the books would never make it past the American Supreme Court. As Nicole Hemmer points out, in America, “The solution to offensive speech is more speech, not less.” I don’t think it is inherently horrible to remove the “offend and insult” provisions from the law. They are clearly unenforced because they are unenforceable – I, like Waheed Aly, who’s written my favorite response to this fiasco, am offended or insulted by at least one thing I read or hear every time I expose myself to Australian news in any medium, and since offense and insult are alive and well in public debate, I’d like to reserve the right to return the favor. The problem, and perhaps Brandis’ actual racism, is most profoundly evidenced in further changes to the act that have not gotten nearly the screen time of those above. The problem lies, as it always does, with where we draw the line – who gets to decide whether speech is intended to vilify or intimidate? Subsection 3 of the law addresses this:
“(3) Whether an act is reasonably likely to have the effect specified … is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community” (emphasis mine).
In other words, if Muslims, a “particular group within the Australian community,” found a public comment intimidating, but many ordinary reasonable [non-Muslim] members of Australian society didn’t, then the Muslims have no standing to seek redress. And this, to me, seems a very dangerous and damaging thing to write into law.
The “Australian community” is a contradiction, as ridiculous as the phrase “the American community.” Both countries are too diverse to ever come to a consensus, something that is both beautiful and challenging about them. The Australian community includes mining magnates; tradespeople; those who trace their ancestry back to the First Fleet; Indigenous people in both rural reservations and major cities; immigrants from Africa, Asia, Europe and the Middle East who have come here both legally and illegally; immigrants from Britain and other Commonwealth countries who have come here under skilled migration schemes; immigrants like myself who have come here for love. The phrase “boat people,” freely thrown around in Australian debates over “illegal” immigration, is not seen as offensive to the hypothetical “ordinary reasonable member of the Australian community,” although thousands of Australians, including myself, find it so.
Ironically, in Australia, which has more heavily regulated nearly everything, including its hate speech, than America has, I have encountered more vocal and virulent racism than I ever have in America, even growing up in the South. Is Australia a more racist country than America? I recognize that I’m not qualified to say; that answer is probably impossible to objectively determine if it even exists. But as someone who has benefited from white privilege all her life, and therefore not had much overt racism directed at her personally, I have been shocked since living in Australia to have witnessed, overheard, and been involved in conversations in which terribly racist things were said, usually without the slightest suspicion on the part of the person saying them that anyone listening might be offended. And in the cases where the person making the comments did realize they were being racist, usually they didn’t care, or even wore their racism like a badge of honor. I have heard Aboriginal people referred to as “abos,” “niggers,” “boongs” and “coons,” and been told many times that all they do is get high and mooch off of hardworking taxpayers. When I have attempted to argue, I have been told that I’m not from here, so I don’t understand. I’ve called out someone on his racism when he used the N-word, only to be told he was proud to be racist; it was “what makes him Australian”. I have heard Asians called “slanty-eyeds”, people say, “Where are we, China?” when seeing many Asians at tourist attractions, and been enlisted as an ally in conversations about Asians overrunning Australian universities and selective high schools. I have heard Italians called “wogs,” Muslims called “towelheads” and “terrorists”, and often, even among educated people, heard the word “Australian” used interchangeably with “white”, as in, “she didn’t look Asian; she looked Australian.”
I know that racist things are said in America every day as well, but for whatever reason, perhaps the company I kept, I rarely had experiences like those above in America. Is it any better for racism to be covert than overt? To be masked by “political correctness” even if its undercurrent is still painfully strong? I think the answer is yes. It sends a message when overtly hateful speech is frowned upon by large portions of the population. Children who don’t grow up hearing their parents and friends say “the N-word” won’t tend to use it themselves. When overt racism is normalized in speech, it is perpetuated. When kept to oneself, it stays within that person and is not passed on to others – like the quarantine of a communicable disease. Even more ironically, I’ve heard many Australians say they think their society has become “too politically correct” and “you can’t say anything without offending someone.” When I respond, “You can’t say anything offensive without offending someone,” it doesn’t go over well.
So where does this leave free speech and the Racial Discrimination Act? It seems to me that the government has not lessened racism in Australia by attempting to control it. But if the changes to the RDA are passed, I fear that most of the public will read it as a victory over pesky political correctness and a license to more freely express and own one’s bigotry. Australians who are ethnic and racial minorities will feel the revision as a slackening of protections and the distancing of the government as their ally. Watching these debates play out in a country that doesn’t have a sacrosanct First Amendment has helped me to evaluate the notion, which I had taken for granted, that free speech is always a good thing. I think the best answer lies somewhere between the two countries, in some utopia only to be dreamed of, which has universal health care, gun control, gender equality, high-quality free public education, freedom of speech, press, and religion, and the true ability to be judged by the content of your character. If anyone ever hears of such a country, I’ll be on the first boat there.
 Australia’s population is just over 22 million, compared with the United States’ 316 million. A smaller proportion of Australia’s small population are racial and ethnic minorities: approximately 8% to America’s 20%. Australia’s largest city (Sydney) has five times fewer people than America’s largest city (New York-Newark). Historically, Australia does not have the history of the slave trade that haunts America, and America does not have the history as a penal colony that haunts Australia, but both countries’ colonization decimated their indigenous peoples. America has cultural relics of other European countries that explored and conquered various parts of its vastness – the Spanish influence on the Southwest, the French in Louisiana and parts of the northeast, the Dutch throughout Pennsylvania and New York. Australia was nearly exclusively colonized by the British and the British and Irish convicts sent there in captivity. Neither country was open to non-European immigration until midway through the 20th century, with Australia’s “White Australia Policy” lasting until the mid-1970s, following the United States’ abolition of national-origin quotas in 1965. Currently, America’s foreign-born population amounts to 13% of its total population, whereas 25% of Australians are foreign-born.