Karen Bailey pleaded guilty at Downing Centre Local Court last Thursday to the crime of using offensive language. Bailey received a 12-month good behaviour bond for the offence, with no conviction recorded.
Before the government’s backflip, it had steadfastly singled out section 18C as the enemy of free speech. Bailey’s case shows that other Australian laws, federal and state, go beyond section 18C in silencing speech. But are these laws a reliable remedy for racism?
You might recall Bailey’s racist tirade on Sydney public transport in early July. Her string of abusive, xenophobic remarks was filmed by a fellow commuter, uploaded onto YouTube and was soon circulating on social media.
The following day, Bailey was taken to Wyong Police station and charged with using offensive language.
Bailey repeatedly used the racial slur “gook” to refer to a woman, adding:
Why did you come to this country? This is our country. People with slinky eyes don’t belong.
She also taunted a man she thought was dating her target. Other commuters who told her to “shut the f— up” were met with further abuse.
A turning point for offensive language crimes?
Bailey was fortunate to receive a good behaviour bond. She could have been fined up to A$1100 for her conduct under section 50 of the Passenger Transport Regulation 2007 (NSW).
Her case can be contrasted to the thousands of other Australians who receive fines, and even terms of imprisonment, for using “four-letter words”. Minority groups, particularly Indigenous Australians, people with mental illness, young people and the unemployed or homeless, are vastly overrepresented in offensive language fines and charges.
In 2007, Aboriginal people were the subject of 20% of offensive language proceedings, despite representing just 2% of the NSW population.
In Thursday’s court proceedings, Bailey said that she was “absolutely appalled” by her behaviour. Bailey handed up character references from those claiming never to have heard her utter a racist remark. Magistrate Teresa O’Sullivan noted Bailey’s lack of criminal history, her remorse and that stressful factors may have explained her behaviour that day, behaviour that the magistrate said was “nevertheless unacceptable”.
It is perplexing that someone’s private misfortunes or the inconvenience of standing on a crowded train can be used to justify such barefaced bigotry, prefaced on a (mis)conception of the self as an “average” Australian, coupled with a belief that membership of this country is tied to white skin colour or an Aussie accent.
Nevertheless, Bailey’s guilty plea might mark a turning point for offensive language crimes. Historically, the law overlooked racial epithets as constituting “offensive” language. When offensive language crimes were introduced into the Vagrancy Acts of the 19th century, people were fined or locked up for using “unutterables” such as bugger, bloody and bastard.
In this era of euphemism, members of a fluid middle class could assert their differences to the working classes through language and its censorship. Police now overlook the “b-words”, instead targeting a more limited set of swear words, usually uttered towards police or in their presence.
Law cannot cure all ills
Our criminal law contains too many cracks to be, in and of itself, a reliable remedy for racism. Offensive language laws were not drafted to tackle racist behaviour. Successive parliaments had quite the opposite intentions of countering four-letter threats to authority, reinforcing social boundaries and reproducing inequalities.
It is plausible that most contemporary Australians would consider racism as more offensive, and more injurious, than swear words. While we tend to draw upon a discourse of dirt, pollution, violence and decay when conceptualising swear words, these are simply metaphors. Expletives might arouse shock or disgust, but any “injury” they cause is typically fleeting. Dirty words do not literally pollute our streets or poison our ears.
Racism, on the other hand, is a pervasive and harmful problem in Australia. It can damage self-confidence, increase the risk of mental illness, limit educational and employment opportunities, destroy social cohesion and incite violence.
Bailey’s guilty plea reminded us that laws other than section 18C curtail our “right to be bigots”. And with the omnipresence of smartphones, similar episodes can be caught on camera, so that offensive language charges can be laid and bigotry exposed.
But offensive language crimes, and those who police and enforce them, are not sophisticated enough to tackle more insidious forms of prejudice faced by minorities in Australia. Whether it be the racist jokes shared over the dinner table, discriminatory hiring practices, or the exclusory, nationalistic rhetoric of political elites, silent forms of racism are pervasive and damaging.
Unlike Bailey’s racist rant, such behaviours are not shunned as anti-social. They are accepted modes of operating in “polite” society.
When we place individuals like Bailey in the category of the eccentric criminal, or excuse her behaviour as “out of character”, we also excuse ourselves from looking inwards at our own complicity in racism. All of her gestures, her words and her thoughts are not unfamiliar; this is perhaps why they were so horrifying. The criminal law might be a powerful tool to spurn the “other”, but there are many injurious behaviours to which the law is blind.