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So, what went wrong with section 18C?

By John de Meyrick - posted Tuesday, 10 January 2017


In this, the Shadow Attorney-General Mark Dreyfus QC, in a statement issued on 10 November 2016, asserts that s18D provides "the balance between protection from racial hate speech and freedom of speech" and something which "those who attack section 18C usually fail to mention". He is wrong.

The defences set out in s18D, as applicable to defamation (ie, good faith, fair comment, genuine academic, artistic or scientific purpose, etc) do not provide protection for ordinary free speech, any more than (say) the defence of provocation would serve as an answer to a parking ticket.

The shadow attorney, who also claims in his statement on 10 November 2016 that those who seek the repeal or amendment of s18C are a "tiny and vociferous band of opponents" (with whom I am pleased to be in very good company) asserts further,that "opponents of 18C…pretend cases are judged by four separate tests against each word – intimidate, humiliate, insult and offend – [which] demonstrates an ignorance of how the law works [because] it is a single test, not four separate tests". He is wrong again.

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The shadow attorney needs to look more carefully at the section which provides that, prima facie, an unlawful act is "to offend, insult, humiliate or [not and] intimidate…"

It is unlikely the Inquiry referred to will come to any consensus or satisfactory recommendation in relation to s18C. The task requires a large degree of acuity and understanding of legal concepts and legislative drafting, as well as political impartiality. In any case, can anyone really imagine any recommendations passing the present Senate unabated?

The Joint Committee comprises ten members. Five Coalition, four Labor, and one Greens. There has been 135 submissions made (including one by me). About 30 percent of these submissions are by organisations concerned with ethnic affairs; 25 percent by political and activist groups; 23 percent by 'neutral' bodies; 12 percent by informed legal interests; and 10 percent by academic and expert advisers.

Most submissions are well reasoned. However, few directly address the core issues. Few relate to the larger question of ensuring freedom of speech. Few provide any viable suggestions or solutions. And very few go to the essential reason why we are having the inquiry: That is the need for a clear understanding of the difference at law between conduct that only hurts a person's feelings and conduct that causes some actual harm. That is the question. That is the real issue. That is the problem with 18C.

The AHRC has provided a self-serving submission in defence of its handling of complaints and of its record. Much of it is disculpative and self-denying. For example, in par 21 of its submission it states:

The Commission observes that there is some confusion about the legal meaning of sections 18C and 18D, and the Commission's role in administering the RDA. It is important to make clear that the RDA does not prohibit speech or conduct that merely hurts a person's feelings.

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But that is precisely what s18C does; and it is precisely what the AHRC has been prepared to take up by way of complaints from people who claim that their feelings have been hurt, offended, insulted or humiliated (whilst seeking compensatory damages).

There is no confusion about the legal meaning of sections 18C and 18D, nor is there any confusion about the AHRC's role in administering the Racial Discrimination Act, other than exist in the 'mind' and the processes of the AHRC itself.

The Inquiry should start by noting the view of the High Court, that: "The law is not primarily concerned to provide redress for those who are subject of disparaging expressions of opinion; freedom of opinion (subject to necessary restrictions) is a basic democratic right". (Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [35], adopting the obiter of Lord Bingham in a case dealing with the defence of fair comment.)

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About the Author

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

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