A core aspect of debate about surrounding proposed changes to the race hate laws is the concept of psychological harm, whether speech that demeans individuals with regard to race inflicts a level of harm damaging to both individuals and societal cohesion.
Psychological harm is in effect a legal concept. It can be measured in a variety of ways. I, along with many colleagues, assess it with regards to compensation claims, particularly in the field of personal injury. The most common way it might be measured is whether it resulted in a psychiatric condition and the level of impairment this might have caused.
A more appropriate method in the case of debates surrounding racism is whether it inflicted a psychological injury that impairs the victim's rights. This is very much the argument taken by many opponents of the changes to law, notably the Race Discrimination Commissioner Tim Souphommasse, who argues that the psychological harm inflicted on individuals via racial abuse deprives of them of rights and diminishes their ability to participate as a citizen. This version of hurt is entirely subjective and based on perception alone, an impossible thing to standardise or regulate through law.
Based on this argument surrounding psychological harm, a host of other insults could also fall into a similar category. Feminists may find comments surrounding pornography insulting or demeaning. Dwarves may find comments about height upsetting as might obese individuals with comments regarding weight. As far as I can tell, there have been no calls thus far to announce the new post of body image discrimination commissioner to help some of us extract apologies in the event we are called overweight.
The reality is race is treated differently because of extraordinary events in recent history. The climax of the history of racism came in the 20th century, when the antipathy one group felt to another reached a single mindedness and brutality that was unprecedented. The Nazis, South African Apartheid and the American South were some of the worst examples where a group was seen as having, unchangeable, inferior traits because of their race, ethnicity or religion. The Aboriginals and policies such as "the stolen generation" also overlap.
Its prelude was a century of the conquests of Empire, colonialism and the notion of the white man's burden to civilise the lesser peoples of the non white world.
The suffering associated with such events is why debates around race remain so charged.
But at what point should the special treatment of race pass? Australia has been among the most successful and cohesive multicultural societies for several decades and the idea that people of ethnic minorities are oppressed, disadvantaged and need special protections is highly suspect. Nothing comparable to the Far Right parties of Europe have had any lasting success in Australia, nor will they. Pauline Hanson has proven to be a blip on the political radar.
In terms of dangerous speech, as a doctor, I would argue that talk spouting the virtues of anti-vaccination is more dangerous in this day and age than Holocaust denial. Anti-vaccination ideas have been responsible for hundreds of deaths, especially in the UK. Yet we allow those who continue to believe such nonsense this right of expression, for it immediately allows others to aggressively overturn the erroneous, delusional beliefs. There will still be some who refuse to vaccinate their kids, a portion of whom are likely to require my services. But the vast, vast majority continue to vaccinate their kids because they are not stupid. The same could be argued with regards to Holocaust deniers.
The race debate illustrates the difficulties our political system has with the place and significance of groups. Our legal systems enshrine relationships between individuals and the state, but give no special place for groups of shared ethnicity or religion. The racial vilification laws attempt to find such a balance for the notion of psychological harm and its utter dependence on the perceptions of individuals is too loose to be applied in a modern, highly diverse society.
As a psychiatrist, I quickly learn that a given stressor results in a hundred different coping responses when applied to a hundred different people. The same applies to comments that might be considered insulting or hurtful. Perceptions will be wide and varied and to apply the test according to what a specific individual within a minority group may perceive is to give minority groups a legal significance that our democratic system was never designed for.
Our society is sophisticated and resilient. Racial prejudice is not tolerated and berated with intense ferocity. The Adam Goodes saga is a perfect example, where a twelve year girl was symbolically crucified for expressing ignorant, prejudiced beliefs. They are beliefs for a different age, not unlike anti-vaccination. The laws to amend racial discrimination are a reflection of our growing maturity as a modern, confident nation.
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