Last year, the Australian Parliament debated changing Section 18C of the Race Discrimination Act purportedly to enhance freedom of speech. Some parliamentarians, ministers too, believed the Section prohibited people from expressing their opinions and thereby, the Section was not democratic. The Section made it an offence to insult, humiliate or offend specific peoples on the basis of race, but the parliamentary attempt against vituperative and vitriolic language failed, raising conjecture about freedom of speech in this country.

In the 18th century, philosopher J.S. Mill espoused his polemic about freedom in his tome “On Liberty” in which he scribed that freedom could be attained with the proviso it did not cause harm to others. Harm was his operative word and disappointingly, I cannot now remember how he defined and analysed harm, so more than likely I may be plagiarising his understanding in what ensues.

What exactly then is harm to others? How can it be comprehended and defined? Furthermore, is there an intrinsic difference between what one person perceives and feels as harm compared to another? Moreover, should it be the concern of law to protect those who do indeed feel ‘harmed’ by someone expressing his/her opinion? One of the reasons the removal of certain words in Section 18C failed was because some ethnic minorities vociferously campaigned that the change to what could be spoken in public would make these minorities more vulnerable to ‘harm’; enshrined by unrestrained and legally sanctioned freedom of speech that would cause them suffering and pain. At the same time, it was subsumed that the abusive perpetrator/s would of course feel no harm, seemingly implying they derived some pleasure in causing harm to people they targeted as marginalised outcasts. The label for this kind of verbal vitriol is sadism, I suggest.

The fact changing Section 18C failed only reinforces the law as but one strategy for proscribing a ‘no harm’ proscription to freedom of speech. Harm is a complex conundrum, enacted by our legislators to protect social well-being, with collective cognition to what is believed and agreed to cause harm. This law gives ‘sadists’ no refuge in public; in private, it’s undoubtedly another issue where people can say what they want with impunity. This separation of the public and private domain is just another example where our legal system operates in two different spheres; likewise our judiciary who are called upon to adjudge what ‘harm’, if any, is perpetrated in the former instance.

In the novel “Jonathon Livingstone Seagull” written by Richard Bach in the 1970s he wrote that “The only true law is that which leads to freedom”, seemingly believing that the only true law is one that leads to freedom, absolute and unfettered. This belief ignores and/or simplifies the constant and inevitable struggle between our laws and our freedoms and what constitutes our democratic rights. It evokes issues as J.S. Mill did about the very notion of freedom and whether there ever can be not just a reality of absolute freedom but whether our laws can or should legislate to ensure that.

Currently, the debate about same-sex marriage, which is being voted on by the public in a postal survey to be completed in November, has raised concerns yet again about freedom of speech, with the Turnbull Government, supported by Labor, passing “emergency” laws limiting free speech by banning any vilification, intimidation and threats on both sides of the debate. Various commentators have penned outrage that it is Yes campaign supporters who are castigating the No claimants more than the other way round with never ending discourse in the letters’ pages and newspaper columns. The national newspaper, The Australian, wrote in its editorial “Sexuality hate-speech laws unnecessary and worrying” that these laws go much further than simply mandating a level of honesty from the opposing sides. It stated: “While we will always demand civility in public debate, this sort of heavy-handed legislation creates a worrying new level of regulation around free speech. It is redolent of the section 18C provisions of the Racial Discrimination Act which, no matter how well intended, we have seen misused by individuals and authorities in the past few years to unfairly censor, admonish and persecute people.” It continues: “We need eternal vigilance to protect free speech against the creeping hand of the state. These laws are a case of legislative overreach...” Another editorial headlined “Yes, thought police bullies dominate same-sex debate” opined that “it is clear (the government)…must also strengthen freedom of speech laws…(and the debate)…has raised important issues about the rights of individuals to say what they believe.”

So can or should an individual be free to say what he/she believes if it is felt as “harm” to another? Exactly where can a civil and democratic society draw a line about what is harmful? The adage “sticks and stones may break my bones, but names will never hurt me” may be valid for some people with a very thick skin, but many of us are harmed by insulting and humiliating verbal abuse. I do contest the law must encompass provisions to ensure people are not slandered and/or slaughtered by this kind of abuse. Within the government’s “emergency laws” there is allowance for criminal action leading to $12,600 fines or civil action at the behest of the Attorney-General. This does not intrinsically imply any curtailment of freedom of speech; rather, it guarantees that offensive and harmful abuse can be illegal.

Once more, we confront the notion of harm, except that in the same-sex marriage issue, it’s private boudoir behaviour that is seemingly arousing such antipathy. Unlike arguments about freedom of speech that pertain to Section 18C of the Race Discrimination Act which essentially were about public speech with public ramifications affecting employment outcomes, welfare payments and community cohesion, the freedom of speech arguments about same-sex marriage, although in the public domain, relate to private sexual behaviour in a marriage. I contend applying freedom of speech arguments in this debate is a ploy to divert the focus from the real issue which I believe is about sexual behaviour.

On the one hand, I do support people’s freedom to express their personal opinion about what same-sex attracted people can and cannot do when it relates to social well-being, similarly as heterosexual people, but enacting what these people can and cannot do in legislation, when there’s no ‘harm’ to social well-being, shouldn’t even warrant any debate at all! Of course, the No voters argue about the deleterious effects on children raised in a same-sex family, the impact and/or curtailment of religious freedom as well as propounding their fears that young people will be taught to be gay in schools. Certainly, I acknowledge their right to say what they believe but apparently, their voices are causing ‘harm’ to those within the LGBTIQ community. For me, this illustrates that what is actually causing the ‘harm’ is not about marriage within that community per se, but their sexual behaviour. Legalising this behaviour in marriage is going too far for the No proponents, arguing that these marriages will further undermine our social well-being.

It is well-researched that young LGBTIQ people already experience greater stress, depression, anxiety and even suicidal attempts than their heterosexual peers, which only reinforces the reality that many people in our society cannot accept same-sex attracted people as just another norm, the marriage of them only exacerbating that lack of acceptance. The media should be concentrating on presenting the evidence, and/or lack of, about these people’s arguments and while this is being written about to some extent, the arguments about freedom of speech shift the focus from the really significant issue about sexual behaviour.

In my perspective, the freedom of speech arguments, as encompassed in the “emergency laws” and in The Australian editorials, are a convenient, albeit much safer digression from the real issue which is not about homophobia per se, but an adherence to conservative, conformist and conventional behaviour about private, sexual relationships. We might have decriminalised homosexuality more than three decades ago, but many people, not just religious Catholics either, still believe in the 3C traditions of how our society can and should function, and more importantly, what is ‘normal’. Having the debate highlights that changing the status quo for these people is indeed alarming, while even more disturbing for them is changing social and legal definitions of what is ‘normal’ in sexual behaviour.

As a woman who never married at all, I have been as condemned as LGBTIQ people for being abnormal and aberrant by staying single, without a partner at all. On my own for more than 40 years, though having had many heterosexual liaisons, is as socially unacceptable as being gay. The unspoken inferences and/or assumptions about my sexuality have included that I am probably a lesbian who has never ‘come out’ or even more pathetically, a female with profound sexual dysfunction. A female who never succumbed to the 3Cs is, ipso facto, pathologically a ‘freak’, to be pitied, psychiatrised and inevitably, persecuted.

The concern about freedom of speech diverts us not just from the democratic right to say what we believe, but involves a far more insidious inclination to sully same sex attracted people, with legalising marriage between them just another opportunity for many 3C adherents to vent their hostility against anyone not heteronormative. The freedom of speech arguments obfuscate and/or shroud what I believe is essentially and unfortunately reactionary revulsion to same-sex attracted people; a latent homophobia and a fear of difference, still permeating our social milieu, however unacknowledged and inadmissible.

Indeed, it is a similar cant colouring the freedom of speech issue about race on some levels because as a so-called democracy we do not want to confront the reality that many people are frightened of anyone not of their ilk; be it in matters of colour, sexual preference, and indeed too, religion, among other things. Many in our midst want a white, WASP cultural community, using and/or manipulating the freedom of speech mantra as a raison d’etre to express venomous vitriol against those they are contemptuous and terrified of.

This argument is spurious and disingenuous, deluding people from the pertinent issue that difference should be celebrated, not condemned. It is as if we clamour for a conformist and conventional commune of thought that condones contempt for anyone who dares to live differently to the ascribed so-called norms of behaviour most people live by, even without causing harm to others. This reality has also been in the spotlight recently with diverse social pundits declaring multiculturalism hasn’t worked in this country and was, and is, a big mistake. It seems tolerant, rational and compassionate believers in the right to live as one chooses with the proviso of causing no harm to others is under attack, hijacked by those appealing to arguments of freedom of speech and religion as a cover for a collusion to create a sameness across society in the guise of safety and security for our children and of course, for the majority of Australians.

It is not just the rhetoric of the so-called extreme right, as The Australian editorials seem similarly blind to the salient sanctity of difference, missing the point of what underlies the whole controversy about same-sex marriage, the race debate, refugees and immigration, among other issues.

One of the ironies not considered is that Ayn Rand in her dystopian novel, “Anthem”, detailed the iniquity of sameness as ordained by the totalitarian state which proscribed individualism. Our so-called democracy is still apparently threatened by any individual stepping out of the confines of a social strait jacket, be they same sex attracted people wanting to marry, Muslim women wearing the burqa or black Sudanese demanding decent employment.

Regarding freedom of speech, populist scribe Andrew Bolt wrote that the emergency laws render “dissent… a crime”, but it is what underpins that dissent that is critical. Furthermore, what is its focus and aspiration? Certainly, The Australian editorial did recognise that “It is a sad reality that in political and commercial marketing some regulation is required to ensure truth is honoured,” but exactly what truth is to be honoured? In my perspective, the truth that demands to be honoured is about our society genuinely embracing difference, particularly difference from anything heteronormative, white and Christian. This still goes unwritten about, too many people oblivious to and uncaring about the political and social repercussions of damning diversity. The same sex marriage debate, sadly with much angst for both sides of the argument, is just another example where the real truth, engendered by fear of people’s boudoir behaviour still proscribes the debate, legalising marriage but a smokescreen for a deeper and more harmful rebuke about homosexuality in particular, and sex more generally. If homosexuality was ‘truly’ accepted as a norm, no debate would even be needed. I don’t actually understand why there is a debate or that there even needs to be one and I’m glad I don’t. Any understanding I may have is about a latent fear about sex per se and specifically, homosexuality. Changing the law to decriminalise it freed millions from the confines of prison, but sadly, discriminatory attitudes are still extant. Hopefully, the postal survey delivers a resounding Yes vote.

Of course, the institution of marriage between a man and woman reigns sacrosanct as the norm of life. It’s not freedom of speech or freedom of religion that underlies the furore, but a more profound perfidy pervading freedom of sexual behaviour and preference and wanting to curtail it.

Jonathan Livingstone Seagull’s belief that “The only true law is that which leads to freedom”, which applies as much to sexual preference as matters of colour, race, nationality or creed, among other things, should be the raison d’etre for same sex marriage legislation. When we feel free within self to live as we choose, including being able to marry who we want, without causing harm to others, then others can be as equally free to live as they choose without causing harm as well.

A personal, inner sense of freedom engenders freedom for others, in speech, in religion and sexual preference et al. If one feels free, one doesn’t have to enforce laws that curb others’ freedom and it’s this freedom that’s the foundation for peace, inspired by the dictum of do unto others as you would have them do unto you. It is not absolute, but it can be real, relatively speaking.