Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here’s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

How to fix 18C without having to repeal it

By John de Meyrick - posted Tuesday, 15 November 2016


Let me be blunt: Section 18C of the Racial Discrimination Act 1975 (Cth) is an anomaly. It should never have been inserted in the Act in 1994. It is not supported in any way by the UNConvention on the elimination of all forms of racial discrimination,the adoption of which brought the Act into being. It has nothing to do with human rights. And it contravenes the Convention's expressly assured provision of the right of freedom of speech in regard to racial discrimination.

But now that we have it as part of the Act it has become a legal 'silencer' and a political 'football' as well as a 'sacred cow' of the nanny rights brigade.

So, how to appease the situation and reach a sensible compromise in this controversy and still preserve the integrity of one of the essential elements of a democracy – freedom of expression – which is embedded in the over-riding UN Universal Declaration of Human Rights?

Advertisement

First, let's look at the controversial words of section 18C as applied to racial discrimination (shown underlined):

(1)It is unlawful for a person to do an act, otherwise than in private, if –

(a)the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people;

Use of language described by the words "to offend, insult, humiliate" is part of free speech. Those words belong within a group descriptive of 'confronting conduct'. Words such as: mockery; derision; sarcasm; criticism; belittling; rudeness; antagonising; scorn and so forth. None of which constitutes unlawful conduct per se.

Social norms may dictate that we should tolerate and respect each other and to apologise for any unintended hurt that we may cause. But howsoever we conduct our relationship with others, none of us has a right not to be offended, insulted or humiliated. We do it to each other all the time. It would be a nicer world if we didn't. But it has never been unlawful for anyone to do so until 18C came along.

However, ordinary free speech using language that offends, insults or humiliates, may amount to unlawful conduct when used in various contexts, such as when the user of that language resorts to abuse, intimidation, incitement, threats or vilification. That is, conduct going beyond mere 'put down' of the other person or group.

Advertisement

In this we can learn from the UK experience where incitement to racial hatred and vilification has been a constant problem for many years, particularly at football matches and other volatile sporting events.

Despite the difficulty of obtaining prosecutions, the UK introduced special legislation as Part III of its Public Order Act 1986 to make unlawful the use of insulting words, when used as part of abusive hate-related chanting and other intimidating conduct at sporting venues. That amendment has largely worked. Such conduct has since abated significantly.

In keeping with that approach, the way to resolve the controversy in relation to section 18C is to amend subsection (a) by adding the words underlined:

  1. Pages:
  2. Page 1
  3. 2
  4. All


Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

11 posts so far.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

Other articles by this Author

All articles by John de Meyrick

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Photo of John de Meyrick
Article Tools
Comment 11 comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy