The Powerful Already Have Free Speech


Last week, Christopher Pyne was heard by many to use an offensive word in relation to Bill Shorten. Pyne claimed to have said ‘grub’, a word that does not in fact end with a t. But repeat the word Pyne didn’t say — repeat it, for example, as an Indigenous person and in a public park — and neither Pyne-like bluster nor defence of free speech will do you any good as the police arrest you for offensive behaviour.

In defence of proposed changes to the Racial Discrimination Act George Brandis has claimed an essential part of ‘public debate’ is the right to offend, or to be bigoted, and that conversely no one has a right to seek redress for being offended. The employees of Brandis’ beloved Institute of Public Affairs sing the same song about offence, with the Human Rights Commissioner Tim Wilson now humming the tune in his new taxpayer funded position.

But in Australia, these two assertions are heavily qualified. The right to offend is exercised in a context in which some Australians are dominant and others are subordinated. It's a context in which domination and subordination run along the lines of race, sex and class (for starters). For the most part these lines are an open secret: not marked in the letter of the law but rather in its operation and interpretation.

There are notable exceptions, however. The letter of the law does apply to refugees in an explicitly discriminatory manner — the Federal Government's Code of Behaviour dictates that "all adult illegal maritime arrivals" who are claiming bridging visas can have their visas cancelled if they spit or swear in public, or do "other actions that other people might find offensive". Refugees are explicitly distinguished as dangerously inclined to giving offence, but as legally incapable of being offended.

The lines of domination and subordination, whether explicit or not, instruct us as who is allowed to offend and be offended. And there is a fundamental underlying rule that makes offending acceptable: kick down.

One of the chief ways in which these lines of power in relation to offence operate is through laws against offensive behaviour and language which are usually placed in the summary offences or police offences acts of Australian state governments. It is rather peculiar then that summary offences acts have not been brought into question in the current debate on free speech.

Summary offences acts read like Borges’ example of a Chinese Encyclopedia, ranging over a motley collection of acts such as the consuming of dogs and cats, begging alms, consorting, loitering, drunkenness, the carrying of weapons, and tattooing. They cover acts and speech-acts that are sometimes still stipulated to be "offences against decency and morality". In the South Australian Summary Offences Act, for example, this category includes: indecent language, indecent behaviour, public urinating, soliciting for prostitution (but not the purchase of women).

These summary offences provisions against offensiveness are phrased in neutral terms, applying to all equally. However, the enforcement of summary offences provisions, as noted by Wojciech Sadurski, "tends to exaggerate the seriousness of the insults against majority members (in particular, against enforcement agents themselves) and to undervalue insults against members of disadvantaged minorities." That is, in practice, the provisions on offensive language kick down. And they kick down hard.

Offensive language provisions are used to discipline Indigenous communities in particular. While general apprehension rates under these provisions are in decline, summary offences acts continue to be used disproportionately against Indigenous people, whose use of words like 'fuck' or 'cunt' is often primarily or solely witnessed by the police, who are often the only persons claiming to be offended by the words.

In contrast, these words are not offensive in the polite circles of television and other media broadcasts, or of films. For instance, such words are permitted to be aired, at least after 9.30 pm, on free to air television. As early as 2001, Shane Warne’s use of the term "fucking arsey cunt" was heard on television after Zimbabwe's Stuart Carlisle hit a six off a Warne delivery. The South African cricketer Graeme Smith claimed that Warne’s customary greeting to new players like himself was a cheery "You fucking cunt, what are you doing here?" Shane Warne has not yet been arrested, nor had a charge of resisting arrest thrown in for good measure, as is common in Indigenous prosecutions. The lines of power in Australia mark Warne out as a funny guy, and mark his words as not offensive, or not offensive enough to count.

The word ‘cunt’ has also been reported in parliamentary records. Famously, Gough Whitlam claimed to have used the word in the phrase 'country member' in response to what he called the ‘cavalleria rusticana’ in the House, but there is no record of this in Hansard. The September 1969 Hansard, however, records Clyde Cameron as saying to Anthony Luchetti: "You are a country member," with Luchetti replying, in true call and response style, "I am a country member."

So if you want to know if a word is offensive, it is very important to work out where the speaker of the word fits in the structures of power. An Indigenous person who says ‘cunt’ is going to make that word sound a whole lot more offensive to the ‘constitutional powers’ (to use Charles Dickens’ term) than Christopher Pyne does. The rules of safely and legitimately giving offence are simple: kick down and kiss up.

All the while, keep in mind that when the talk among our betters turns to the ‘right to offend’, what is at issue is not freedom of speech but freedom to discriminate. What is at issue is their right to kick down.

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