Sun columnist Kelvin MacKenzie suspended from the newspaper, April 14, 2017. Lewis Whyld/Press Association. All rights reserved.The Sun publishes an article comparing a black Everton player to a gorilla. While the reporter denies that his piece could be seen as racist, The Sun issues an apology. How might the law deal with this situation? Was the original article racist, defamatory, ignorant or simply fair comment?

“Is Australia Racist?”

Just a little earlier, this issue had been debated, if that's not too strong a word for the discussions that took place, in Australia. A committee of the Australian Senate considered options for revising the Racial Discrimination Act (RDA), while a publicly-owned broadcaster, SBS, ran a series under the heading “Is Australia Racist?” and another Murdoch paper, The Australian had provoked outrage by publishing a cartoon by Bill Leak, a favourite of the Right, depicting a police officer handing an indigenous teenager over to the boy's father while telling him to keep the boy under control. The father responds “Okay. What's his name?”  

The RDA had been introduced by the reforming and ill-fated Whitlam Labor Government in 1975 to embody the spirit of the UN's International Convention on the Elimination of all forms of Racial Discrimination, which came into force in 1969 and which the RDA ratified, and particularly its insistence that “there is no justification for racial discrimination, in theory or in practice, anywhere.” Along with SBS, the RDA is one of the few Whitlam legacies to have survived more or less unscathed into the twenty-first century, although it was, in fact, strengthened by another Labor Government's 1995 Racial Hatred Act which laid down procedures for dealing with allegations of racial discrimination and added sections 18C & D, the latter specifying a number of exemptions to the provisions of the former. 

Both as a Whitlam Act, albeit slightly modified, and one with links to the UN – not to mention its threat to disrupt the minor everyday pleasures that many white Australians take in casually abusing others – it  has been disputed by the Australian Right, who have focused overwhelmingly on the wording of section 18C which they see as impeding free speech – their main complaint against 18C from the beginning. There has also been some dispute over the procedures to be followed in dealing with allegations of racial discrimination.

The disputed passage of 18C refers to acts that are “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” specifically 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.” Critics of the Act on the Right of the Liberal Party, who seem to have never recovered from the shock of the Whitlam years, object to the terms 'offend, insult, humiliate or intimidate' on the grounds that they are subjective (offence, for example, is said to be in the mind of the offended, an observation that is taken to mean that there can be no reliable legal test); insufficiently precise (although we should note that Australian Courts have found little difficulty in convicting many indigenous people of offensive behaviour towards police officers – who can be trusted to recognise offensive behaviour, especially when they see it directed against them); and that, notwithstanding the exemptions listed in section 18D, they serve to limit free speech. The latter has invited the critics' opponents to ask in turn, what they wanted people to be able to say that they cannot say now. The Chair of the Senate Committee considering options for reform denied a request by the ACT/NSW Aboriginal Legal Service that its representative be allowed to speak to the Committee.

In a nicely symbolic act of discrimination, the Chair of the Senate Committee considering options for reform denied a request by the ACT/NSW Aboriginal Legal Service that its representative be allowed to speak to the Committee. The Government finally opted to replace 'offend insult, humiliate' with 'harass' and to introduce procedural changes, while insisting that the original 18C had been discredited and, further, that this change in wording made the Act stronger by making it clearer – only to have its revisions rejected by the Senate.

Discrimination

Several features of the 18C debate are worth noting. First, for all this interest in terminology, in the meanings of words and what people do with them, critical discussion of section 18C barely touched on two absolutely central terms, discrimination and race – nor, of course, did it touch on the derivative terms, 'racial', 'racism' and 'racist'.

Starting with discrimination, we can note that its meanings range from the simple act of recognising difference – between, say, moths and butterflies, indigenous and other Australians or wasps and bees – through the capacity to recognise such differences to action towards others that is unjust or prejudicial. The RDA targets only discrimination in this last sense, which is also the most recent: the earliest English-language use of the term in this sense noted by the OED was in 1819, while discrimination in the first sense appeared as early as 1621. Discrimination against indigenous Australians is also discrimination in favour of non-indigenous Australians.

Discrimination against others in the prejudicial sense clearly depends on the act of discrimination in the sense of recognition of difference. Yet, we should not imagine that prejudicial discrimination is entirely negative in its effects. We often find references to positive discrimination, discrimination that favours disadvantaged groups, for example, through quotas in schools or universities, many introduced as gestures towards rectifying earlier discrimination against them. There is also a second important sense in which discrimination can be positive, essentially because it always cuts both ways. Just as some are victims of unjust and prejudicial actions, many others, who are not victims,  experience a no less unjust and prejudicial discrimination in their favour. Discrimination against indigenous Australians is also discrimination in favour of non-indigenous Australians.

Collective behaviour

Notice finally that, like the RDA itself, the debate treats racial discrimination, as basically a matter of  some people or organisations doing something unpleasant to one or more others because of 'their race, etc...'. This raises three points, two of which I return to later: first, both the RDA and the recent 18C debate take it forgranted that races exist, which is undeniable in one sense and problematic in others; second, treating racism as resulting from prejudice suggests that the problem rests primarily in the minds of individuals. Thirdly, widespread inequities result not only from the prejudicial conduct of one or more individuals but also from the conduct of state agencies and the collective behaviour of banks and other organisations.

Perhaps the clearest example of the latter is redlining, which led to the de facto segregation of many US cities outside the South. The term itself comes from American investigative journalism in the 1960's: it refers to the practice of restricting services  – whether by not providing clinics, hospitals, schools and supermarkets, or locating them in places that some find hard to access or by selectively adjusting prices for insurance and mortgages – to residents of certain areas according to the racial or ethnic composition of those areas. Redlining is a clear case of discrimination that is difficult to blame on the bias of any single individual or group. The net result of their actions amounts to massive discrimination against indigenous people and in favour of the non-indigenous population

As to the inequities enacted by state agencies, we need only think of the ongoing scandal of Aboriginal deaths in custody and disproportionate rates of indigenous incarceration, Australian Governments' cavalier treatment of native title or of the quality of the services provided to Australia's indigenous peoples by agencies operating at various levels of Australian government. The net result of their actions amounts to massive discrimination against indigenous people and in favour of the non-indigenous population.

In December 2007 the Council of Australian Governments recognised the seriousness of the issue, agreeing that steps must be taken at all levels of government to address gross inequalities between indigenous and non-indigenous Australians in the areas of health, education and employment. To this end, reports on progress are presented every year to the Australian parliament and they have so far been uniformly and predictably disappointing, a fact that is no less predictably deplored by politicians and media outlets before the rest of Australia gets on with other business

We might also think of the Australian practice of immigration detention. The 1901 Immigration Restriction Act, generally regarded as the basis of the White Australia Policy, aimed to prevent or severely limit the immigration of non-Europeans. It prohibited the immigration of various classes of people, with the result that they could not migrate legally to Australia, and provided for illegal immigrants, other than those of European descent, to be held in detention before they were deported. While the Immigration Restriction Act was finally replaced by the 1958 Migration Act, immigration detention has continued in various forms.

Under the current regime of offshore detention, which operates in spite of Australia's obligation as a signatory to the UN Refugee Convention not to penalise migrants seeking asylum, hundreds of refugees are incarcerated on Manus Island in PNG, which PNG courts have declared illegal, and Nauru. While White Australia openly discriminated in favour of Europeans, today's offshore detention regime does so covertly by incarcerating non-Europeans. So few refugees of European descent arrive in Australia by boat that the question of making special provision for them simply does not arise. We can only imagine what might happen if boatloads of English-speaking whites, displaced, say, from Hong Kong, Singapore, South Africa, Kenya or Zimbabwe, were to start arriving on Australian shores

Race itself

Compared to unjust or prejudicial treatment, discrimination in the earlier sense of recognition of difference might seem to be relatively innocuous. Unfortunately, consideration of discrimination on the basis of race will show that this harmless appearance may be deceptive. Some observers have argued that the making or perception of racial distinctions should be seen as racist.

As for race itself, 18C renders discrimination illegal whenever “the act is done because of the race, colour or national or ethnic origin of the other person.” Here the RDA clearly assumes that racial differences exist, along with differences in colour and national or ethnic origin. There have been too many accounts of race for me to even attempt to examine them here.  While races were perceived as objects of study, racial discrimination was widely experienced as an intractable social reality.

So cutting a long and complex story short, we can note, first, that races have generally been understood as populations distinguished from other races by their common inheritance, this last being variously understood in terms of blood, descent from one or a few common ancestors or genes. In nineteenth century Europe and America racial differences were often treated as matters of scientific inquiry. Alongside the resulting 'scientific' discussions of race there were others drawing in part on versions of 'scientific' race theory, with some also drawing on tendentious readings of the Biblical Old Testament. Second, while races were perceived as objects of study, racial discrimination was widely experienced as an intractable social reality – a social fact in the sense of Durkheimian sociology, that is, as a societal feature that exercises an external constraint on individuals – something that could not be wished away and that simply had to be negotiated.

Outsiders regardless

If racial discrimination is a social fact, so too are the races it distinguishes. The coexistence of the social fact of race and talk about different races raises many issues requiring further clarification, only a few of which can be touched on here. First, is there a causal relationship between talk about races and the social fact of racial discrimination? This would suggest the comforting view, at least for many intellectuals, that the rigorous examination of various accounts of races (which I have not attempted here) would certainly result in discrediting most of them and would thus be a practical way of undermining racial discrimination as a social fact.

Appealing to some as this view might be, it is hardly plausible. In medieval Europe, populations were distinguished ostensibly on the basis of descent but without reference to any concept of race, with Jews, Moors, Roma (Gypsies) all being identified as outsiders. Yet, if racial difference can appear as social fact in the absence of talk about races, it hardly makes sense to treat it as caused by such talk. If anything, the relationship works in the contrary direction  'Scientific' racism and other accounts of racial difference can be seen as serially unsuccessful attempts to make sense of the social fact. 

Following this last point, we should not expect too much from critical discussion of influential accounts of racial differences. This is not to say that critiquing these accounts is a waste of time, only that it will not bring about the short-term results that some might hope for. We should not expect even the most powerful critiques to bring the whole edifice of racial discrimination crashing down. In fact, as with many complex social phenomena, there is little point in trying to identify a singular cause of racial discrimination. The more important question for us today is how does racial discrimination continue, or how is it reproduced, and here, I suggest, 'scientific' and other accounts of racial difference do play an important part.

Denial and prejudice

Consider, for example, the vexed issue of race and intelligence. Around the end of the nineteenth century anthropologists and psychologists began to seek scientific evidence for and explanations of the superior mental capacities of Europeans – a truth which, for the most part, they simply took for granted. To this end, they compared brain sizes, skull shapes and sizes and adapted the recently developed techniques of intelligence testing. (I leave aside the contentious issue of whether the intelligence of individuals is amenable to testing in a culturally-neutral fashion.) By the mid-1930s psychologists had settled on the view that environmental and cultural factors were more significant determinants of intelligence than inheritance and this has since remained the majority view.

In a striking precursor to recent debates around global warming, a minority of specialists including, Hans Eysenck and Arthur Jensen, continued to hold out against this consensus, thereby providing excuses for an influential kind of denialism that still informs American education policies and political debates about positive discrimination in colleges and universities, for example. For example in Hernstein & Murray's disturbingly popular The Bell Curve: Intelligence and Class Structure in American Life  (which prompted a cautiously even-handed report from the American Psychological Association and a powerful rebuttal in Stephen Jay Gould's expanded 1996 edition of his The Mismeasure of Man) and the ‘academic’ Journals Mankind Quarterly & Intelligence.

What happens in this denialism is that the perception of Black and White as different – which might seem to be no more than a matter of discrimination in the first sense noted above and thus innocuous  –  comes together with a problematic psychological measure to justify racial discrimination, in the prejudicial sense, thereby reinforcing and reproducing existing prejudicial regimes.

“Are Australians Racist?”

Finally, what of the individualism of the RDA and the debate around 18C? I noted earlier that both the Act and the 18C debate understood discrimination as a matter of one or more persons or organisations doing something unpleasant to one or more others. There is no doubt that this happens, but I also noted that this focus on individual misconduct tends to discount discrimination by government agencies and other organisations.

While the Act does not deny that there may be discrimination by government agencies, section 6 insists that “nothing in this Act renders the Crown liable to be prosecuted for an offence.” Thus, if the Australian State or Commonwealth Governments were tempted to indulge in racial discrimination, as I have insisted they are, the RDA offers no protection.

Yet, ignoring government agencies is not the only significant limitation of the Act's individualistic focus. This focus suggests that the main problem of discrimination is a matter of prejudiced individuals. Suppose that we come up with a reliable explanation of individual prejudice, where would that leave us? In February 2017, the Australian broadcasting network, SBS broadcast a series under the heading “Is Australia Racist?” In practice, the series interpreted this question as meaning “Are Australians Racist?” and it turned out, to nobody's great surprise, that many were and way too many others experienced racial prejudice in their daily lives. We fear, or are prejudiced against, some people who don't look like we do: and we don't fear as much, or are less prejudiced against, others who also don't look like we do.

SBS drew on the work of psychologists and sociologists, the latter investigating the extent of racist behaviour by or towards Australians and the former providing an account of this racism as a kind of prejudice based on fear of “people who don't look like we do”, and suggesting that this fear was hard-wired into our brains but that we could change it, if we so desired, with a bit of effort.

Unfortunately, even if we were to accept the idea of hard-wiring in the soft tissues of our nervous systems, this account of racism would be seriously incomplete. We all grow up with people who don't look like ourselves and members of our immediate family, and over time we learn not to be afraid of many of them. So, we fear, or are prejudiced against, some people who don't look like we do: and we don't fear as much, or are less prejudiced against, others who also don't look like we do. What distinguishes the two groups is not that people in one look like we do and those in the other do not, since neither of them look like we do. So, there must be something else going on, something that is not captured by consideration of whether they look like we do.

Beyond something unpleasant

I have picked on the SBS series here, not to damn the network but rather to bring out the limits of treating racism as a kind of individual prejudice: no account of prejudice as a psychic process can tell us which people are targeted, why these are and those not. Nor is my observation that SBS sought the assistance of psychologists and sociologists intended to undermine the value of these disciplines. I write as a recovering sociologist and my point is simply that, in this case, their assistance did not get us far. Perhaps SBS was just unlucky or asked its hired psychologists the wrong questions. Yet, if accounts of discrimination as a matter of individual prejudice cannot explain who the discrimination targets, perhaps we should, once again, turn the issue around and consider the possibility that prejudice is turned against populations because they have been and often still are targeted by states, powerful groups or organisations. Prejudice is turned against populations because they have been and often still are targeted by states, powerful groups or organisations.

To conclude, if racial discrimination is a social fact, then so, too, will be the races it distinguishes. However, these races should be understood as populations identified by the fact of being targeted by racial discrimination, not as the entities specified by accounts of races that focus on heritable features that are allegedly shared by their members. This last point deserves more consideration than I can offer here: if only because, first, colonial territories and their successor states often contain distinct and differentially targeted populations; and, second, racial discrimination and the races it identifies cut across national boundaries. Races as targeted populations are all too real, but races as populations unified by shared genetic traits are little more than dangerous fictions: they are not the products of distinct creations, whether by God, geography or evolution, nor populations descended from Ham, Japhet & Seth, the sons of Noah, as a literal reading of the Book of Genesis might suggest. If races are targeted populations, and therefore social constructs, there are no rational grounds for supposing that any one of the races currently identified is superior to any of the others.

Again, if races are targeted populations, and therefore social constructs, there are no rational grounds for supposing that any one of the races currently identified is superior to any of the others. Thus, returning to the 1965 International Convention on the Elimination of all Forms of Racial Discrimination (which Australia ratified by passing the Whitlam Government's RDA): “there is no justification for racial discrimination, in theory or in practice, anywhere” and certainly not in Britain or Australia.