THE HON MARK DREYFUS QC MP
SHADOW ATTORNEY-GENERAL
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
18C INQUIRY AN INSULT TO FREE SPEECH AND IGNORES REALITY
The Abbott government's botched attempt in 2014 to repeal section 18C of the Racial Discrimination Act- the law that has drawn a line against racial abuse, Holocaust denial and harmful hate speech for more than 20 years was one of its biggest failures.
And yet in 2016, the anti-18C crusade has been revived. The latest push will take the form of a parliamentary inquiry as a fig leaf for attempts to weaken the law once again.
Politics aside, it is beyond time for some perspective to be injected into the debate. Because the fact of the matter is, the anti-18C argument only survives because it is based on misrepresentation of the way in which this provision works.
Those who attack section 18C usually fail to mention section 18D. It is a deliberate omission, because while 18C sets out the contravention of insulting, offending, humiliating or intimidating another on the basis of race, 18D sets out a wide range of defences. A complaint under section 18C will not be upheld if the publication was made in good faith in the context of an artistic or intellectual work, or political comment Section 18D strikes the balance between protection from racial hate speech and freedom of speech. The broad defences offered by 18D are part of the reason there have been so few established contraventions of section 18C.
The tiny and vociferous band of opponents to 18C like to create the spectre of thousands of vexatious complaints brought to court The hard facts of the matter are that in the 21 years section 18C has been in existence, only 96 cases had been brought to court by September this year. That's just over five a year.
The overwhelming majority of the hundred or so complaints each year to the Human Rights Commission have been satisfactorily and promptly resolved by a conciliation process, without resort to court.
Opponents of 18C also like to focus on two words contained in that section - "insult" and "offend". They pretend cases are judged by four separate tests against each word - intimidate, humiliate, insult and offend. This demonstrates an ignorance of how the law works. It is a single test, not four separate tests. This sets the bar high for proved contraventions of section 18C.
As Justice Kiefel (now a High Court justice) said in a judgment in 2001, "to 'offend, insult, humiliate or intimidate' are profound and serious effects, not to be likened to mere slights". That statement was relied on by the Federal Circuit Court judge in striking out the Queensland University of Technology case last Friday, though you won't see that reported in certain segments of the media.
This issue was laid to rest in 2014. It has been revived not for reasons of law, but because it is a pet project of the hard right of the Liberal Party to whom Malcolm Turnbull is beholden, as well as the Institute of Public Affairs.
Sections 18C and 18D draw a line, as they must between unfettered free speech and protections against certain kinds of speech. We draw such lines in many areas of Australian society including a ban, for instance, on inciting terrorism or violence. This week, the Parliament legislated to create a criminal offence of advocating genocide. I am yet to hear the self-identified crusaders for free speech argue for the abolition of those protections.
Finding the balance between free speech and protections against certain kinds of speech is a difficult endeavour.
But the balance struck by 18C and 18D has had 20 years of testing and the provisions have worked well, without much controversy, until the right wing of Australian politics decided to make it a talismanic cause.
The law doesn't need changing. It has served the Australian people well. I will keep making that argument together with my Labor colleagues.
First published in the Australian Financial Review on Friday, 11 November 2016
