Section 18C and the law of defamation

Moreover, s 18C makes no express allowance for the truth. In Eatock v Bolt, Justice Bromberg found that Andrew Bolt had got the facts about the applicants badly wrong. His Honour stated that "When not misused, truth will not generally cause the kind of offence s 18C is concerned with" (my underlining) and, in holding that Bolt was liable under s 18C, stressed that it was in part because Bolt had used "inflammatory and provocative language".

If Bolt had published the same two articles but had referred to other Australians of indigenous descent and had truly stated or indicated (and not distorted) the facts pertaining to those other persons, would he have been exposed to liability (a) under the law of defamation, and (b) under s18C? The answer to (a) is, no, and the answer to (b) is, possibly, perhaps probably.

In short, the case for the retention of s 18C is completely undermined, not buttressed, by the law of defamation.

The inherent vice of "hate speech" statutes

At the centre of the debate about s 18C and the other "hate speech" statutes is a general conflict of principle as to whether free speech is an overarching individual right, and a more specific conflict of principle, namely, whether there are to be privileged types of speech content/viewpoint.

An inherent virtue of the law of defamation – its application to all statements of (purported) fact and all opinions – is indicative of the inherent vice of all the "hate speech" statutes. They elevate public discussion of specific categories of speech content/viewpoint to a privileged legal status and thereby, necessarily, inhibit such discussion.

Had the then Gillard Government'sproposed Human Rights and Anti-Discrimination Bill 2012 been enacted, there would have been no less than 16 categories of protected speech content/viewpoint including the impenetrably obscure category, "social origin".

Section 18C rests on the legal fiction that offensive, insulting etc speech acts/conduct entirely unrelated to invidious discrimination in employment, in the provision of accommodation and in the supply of goods and services (itself a worthy subject of legislative prohibition) amount to acts of discrimination.

Ironically, the ideological foundation for that legal fiction involves a form of stereotyping, namely, the patronising claim that there are entire "minority" groups all of whose members are "vulnerable" or "marginalised" or "victimised" and so lacking in human fortitude as to be quite unable to withstand disagreeable ("hateful") speech pertaining to their group identity.

This has become such an article of faith that it is rarely questioned. It is usually accompanied by the no less patronising assessment of all those who do not belong to one of the groups whose feelings are said to be in need of privileged legal protection that those "majority" outsiders can have no knowledge of what it is like to be a victim of "hate speech".

All the sloganeering about vulnerable/marginalised/victimised groups and their "silencing" is merely the latest ideological pretext for censorship of "hurtful", controversial, dissenting public debate.