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Section 18C, ABC Fact Check and the 'ill-informed' Attorney-General

By Laurence Maher - posted Tuesday, 27 May 2014


On 24 March 2014, the Commonwealth Attorney-General, Senator George Brandis QC, in the course answering a question without notice about the proposed repeal of s 18C of the Commonwealth Racial Discrimination Act 1975 (RDA), told the Senate this:

. . . People do have a right to be bigots, you know. In a free country, people do have rights to say things that other people find offensive, insulting or bigoted . . . (my underlining and below).

Using a standard dictionary definition of being "bigoted" as "having or revealing an obstinate belief in the superiority of one's own opinions and a prejudiced intolerance of the opinions of others", the Attorney's statement was unambiguous.

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Senator Brandis is an accomplished lawyer. As the first law officer of the Commonwealth, he could be expected to choose his words carefully. He clearly did so on 24 March 2014.

Taken either as the expression of an opinion about the state of the law in Australia, or as a statement of everydayreality, it was unexceptionable.

If the Attorney had been wrong about the law and was to be taken as urging the view that there should be a right to make bigoted statements, is that an opinion which no reasonable person in the real world could genuinely express? The response in some quarters was a resounding "How could any decent person dare suggest such a monstrous thing?"

Perhaps Senator Brandis would see some irony in the fact that the more intemperate the language used against him became, the more his critics were inadvertently buttressing his statement which, in less than a week, had become infamous.

He did not deserve the chiding solemnly administered to him by the Australian Broadcasting Corporation (ABC) Fact Check unit in the following "verdict".

Attorney-General George Brandis says people have a right to be bigots and to say things that other people find offensive. ABC Fact Check finds his claim is ill-informed.

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No amount of "deconstruction" or "unpacking" or, better still, old-fashioned common sense plain reading of the online ABC report of which the "verdict" forms a part, discloses what was "ill-informed" or incorrect about the Attorney's disputed statement.

In The Australian on 7 May 2014, Russell Skelton, the highly regarded journalist who is in charge of ABC Fact Check, defended its verdict in a letter containing the following statement:

People have a right to express bigoted or offensive opinions in their own home but repeating them in publiccan be an entirely different matter.

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About the Author

L W Maher is a Melbourne barrister with a special interest in defamation and other free speech-related disputes. He has written extensively on Australian Cold War legal history.

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