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Vile law should be abolished

By David Kemp - posted Monday, 10 October 2011

Section 18C of the Racial Discrimination Act is contrary to the principle of freedom of speech that underpins our democracy, and we cannot afford to allow it to stand if we wish to preserve our freedom.

This is not simply a matter of facts being wrong. If it were, the case would have been conducted under defamation law.

Nor is it simply a matter of "bad journalism". Bad journalism of the category complained of here should not end up in a courtroom. It should be examined in the realm of public debate, as it has been until now in any society confident in its liberal democratic principles.


The person responsible for this law, Michael Lavarch, has justified it (The Australian, April 9) on the basis that "history tells us that overblown rhetoric on race fosters damaging racial stereotyping and this in turn can contribute to societal harm well beyond any deeply felt personal offence".

The former attorney-general reminds us that freedom of speech is not absolute, and in that he is correct. The law as it stands, apart from his act, does not permit perfect freedom to say anything. To say something that causes a riot, or is libellous or defames a person, or is misleading or deceptive in a commercial context is not permitted.

But his law goes well beyond these time-honoured exceptions. Let us substitute the word class for race in his statement, or the word religious, or the word gender, or the word national, or even the words politics and political. Lavarch's statement is true for each. Overblown rhetoric on any of these topics can create stereotypes, can cause offence, and if made the basis for action may lead on to damaging consequences.

It was not racial hatred but class hatred that raised the guillotine during the French Revolution, or when millions were starved and slaughtered in Stalin's attack on the "wealthy" peasants, or in Mao's collectivisation, or in his vicious Cultural Revolution, or in the genocide perpetrated by the Khmer Rouge in Cambodia.

But in democracies we have long known that it is not words that produce such horrors, it is the failure to expose prejudice, to control violence and ultimately it is the absence of democracy that leads to these catastrophes. Violence and incitement to violence are proper domains of the law, but this is not what this law is about.

Lavarch and his ilk tell us that what people say is potentially too dangerous to be left to the uncertain processes of freedom of speech and the sanctions of public opinion. What is needed, he says, is a government tribunal to counsel and warn, to secure retractions and ban republication like the medieval church. If his view is accepted then liberal democracy becomes a historical interlude between the ruling classes that preceded it and the bureaucracies and tribunals that Lavarch would apparently like to see replace it.


This is a truly grotesque process that has no relationship to our democratic tradition and, dare I say it, one contrary to the inalienable natural rights of people to freedom of speech, on the observance of which, ultimately, the legitimacy of the democratic state depends.

The law enunciated in the Bolt case seems to fall within the concerns expressed by US Supreme Court judge Louis Brandeis, when he said that "experience should teach us to be most on our guard to protect liberty, when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning, but without understanding."

The exact point was addressed in his famous essay, On Liberty, by John Stuart Mill, the strongest opponent of political correctness in his day, when he considered the argument being put by some at the time that "the free expression of all opinions should be permitted, on condition that the manner be temperate, and do not pass the bounds of fair discussion".

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This article first appeared at The Australian on 6 October 2011. 

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About the Author

David Kemp was a cabinet minister in the Howard government and is immediate past president of the Liberal Party (Victoria).

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