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Section 18C: does it go too far?


Chris Kounelis

By

September 19th, 2016


Australia is a democratic society, with liberal values at its bedrock. However, does legislation aimed at limiting hate speech go too far in restricting one’s right to free speech? Chris Kounelis makes the case for why Section 18C of the Racial Discrimination Act should be reformed.


Some weeks ago, I was deep in the bowels of my local library in search of something good to read. As I scoured the aisles, I stumbled upon an old leather-bound book amidst a sea of other long-forgotten tomes. It gave off a pungent, musty odour. Curious, I thought. Much to my surprise, it was a classic I had yet to read – George Orwell’s 1984. And so, seized by curiosity, I riffled through its brittle, timeworn pages, eager to see what this novel was all about. Almost immediately I was hooked. The world Orwell paints for us is eerily dystopian, yet not entirely alien; it is a place where free speech and individual thinking are condemned as ‘thoughtcrime’ — where a totalitarian regime diminishes free expression by enforcing the use of a controlled language, aptly named ‘Newspeak’. On finishing the book, a thought struck me – our own reality is, perhaps, not quite so far removed. After all, time and time again, our personal liberties — primarily the right to free speech — are being curtailed in an effort to prevent prejudice and bigotry from flourishing.

Equally of Orwellian proportions has been the assault on free speech in the form of Section 18C of our Racial Discrimination Act. On the surface, it purports to protect Australians from being “offended, insulted, humiliated or intimidated” on account of their “race, colour or national or ethnic origin”. However, in recent years it has been used by some to promote vexatious litigation and limit the scope of acceptable thought and language.

The lawsuit involving several Queensland University of Technology students has given renewed impetus to the case against Section 18C. On 28 May 2013, three students were prohibited from using free computers at a computer lab assigned to Indigenous students. Following the incident, one of the students, Alex Wood, complained in a Facebook post, “Just got kicked out of the unsigned Indigenous computer room. QUT [is] stopping segregation with segregation.” Almost a year later, however, the staff member responsible for removing the students from the lab spotted the post, and lodged a complaint before the Human Rights Commission. The commission subsequently set a hearing date for later that year, of which the students were not made aware. They were thus denied the right to a fair trial. Aside from being hauled over the coals, they are now being slapped with $200,000 in legal fees, and their reputations have been forever besmirched.

Whether or not you find fault with Alex Wood’s remarks, there can be little doubt that Section 18C, in its current form, is deeply flawed. Particularly from a policy perspective, it is fraught with all sorts of ambiguities that have no place in our legal system. Simon Breherny, Director of Policy at the Institute of Public Affairs, has observed that the central shortcoming of 18C is that there is no objective test by which to gauge offensiveness; after all, what may be offensive to some cannot be reasonably expected to cause offence to others. Some are eager to point to Section 18D as the panacea for 18C’s problems, because it states that all exemptions to the law must be “said or done reasonably and in good faith”. But this cannot possibly be determined objectively. What may be a perfectly reasonable, if not entirely valid, opinion said in good faith can easily be construed by others as offensive. But the crux of the matter is this: given that Australian democracy is rooted in the rule of law, we rightly expect our legal system to clearly discern between lawful and unlawful behaviour on objective grounds. Section 18C thrives only on subjectivity.

This issue has also been brought to the fore by Liberal Democrat Senator David Leyonhjelm, who, after being recently labelled an “angry white male” by Fairfax Media’s Mark Kenny, invoked Section 18C and lodged a complaint before the Human Rights Commission to demonstrate the absurdity of the Racial Discrimination Act. Senator Leyonhjelm later admitted in a statement, “I was not personally offended by the comments – that’s my choice. However, under 18C of the Racial Discrimination Act, this does not matter. […] Mr Kenny’s article is unlawful because his article was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people on the basis of their colour.”

Perhaps the most pressing problem with 18C, however, is that it exists at all. Put simply, the idea that having the right to unfettered freedom of speech could open the floodgates of racial hatred is disingenuous. It is grounded in the assumption that ordinary Australians lack the capacity for common decency and goodwill.

Section 18C, it seems, has now become a strategic asset in the broader war that is being waged against freedom of expression, with the aim of restricting the spectrum of political opinion. The recent controversy surrounding a controversial Bill Leak cartoon, published in The Australian, is a testament to this. The cartoon in question portrayed an Aboriginal father holding a beer can and not remembering the name of his son, and was met with a barrage of criticism. Regardless of Leak’s intended message, he nonetheless succeeded in stirring up debate. However, for Tim Soutphommasse, the Race Discrimination Commissioner to intervene, and encourage those offended by the cartoon to lodge formal complaints under the Racial Discrimination Act, was completely unnecessary. By putting on those rose-tinted glasses, are we actually engaging with the very real concerns of some sections of our society? Do kneejerk reactions accomplish anything, or do they merely deprive the debate of legitimacy and substance? We so often choose to tread on eggshells, but we all know you can’t make an omelette without breaking a few eggs.

We must recognise that the Racial Discrimination Act was introduced with honourable intentions; namely, to prevent bigotry and prejudice from taking root in our country. However, Section 18C has strayed far from what it initially set out to do. Censoring offensive language won’t help us in the fight against racism and bigotry. Those who believe it can are sadly mistaken. There is a better way. Namely, it is to give those who harbour such odious views the spotlight. Let the world see them for what they are. Rather than slapping them with lawsuits and the like, let them face the court of public opinion.

With Section 18C in its current form, our freedoms are being held hostage, and like someone stricken with Stockholm Syndrome, we are seemingly warming to our captors. Prime Minister Malcolm Turnbull recently stated that he had no plans to amend 18C, maintaining that there are more “pressing priorities” the government must grapple with, such as budgetary repair. He is wrong to dismiss the growing threat to freedom that this law poses.

In the interim, Liberal Senator Cory Bernardi has been making meaningful strides in pushing for reforms to the law. His plans to introduce a private member’s bill to remove the words “insult” and “offend” from the Racial Discrimination Act have been supported by nearly every Coalition backbench senator and seven crossbenchers, in addition to prominent human rights lawyer Julian Burnside QC, the Law Reform Commission, and tens of thousands of Australians who have signed his online petition. In recent weeks the tide of public opinion has been turning on the issue of 18C, with a new Essential poll showing that 45% of Australians approve of amending the law, while 35% remain opposed.

In short, 18C as it stands is a stain on free speech. Such laws chip away at our freedoms, and must be resisted at all costs. Our liberal democracy embraces diversity of opinion, and as such, is fertile ground for new ideas. We will invariably, then, encounter points of view that seem overwhelmingly ignorant, offensive, and fly in the face of reason. But never must we set out to silence them.

To quote English writer Evelyn Hall, “I disapprove of what you say, but I will defend to the death your right to say it.”

Christopher Kounelis is a first year student at the University of Melbourne studying a Bachelor of Arts and is a member of the Melbourne University Liberal Club.

The views expressed within this article are those of the author and do not represent the views of the ESSA Committee or the Society's sponsors. Use of any content from this article should clearly attribute the work to the author and not to ESSA or its sponsors.

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