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

Thirdly, there ought to have been but there was no mention of the dictionary meanings of the words "offensive" or "insulting". It was noted, however, that "The law does not define what constitutes "offensive language".

Here again, there is confusion of concepts in large part because the report is ahistorical. The lack of definition of what constitutes"offensive language" may be true of the four statutes, but if the ABC team had checked the long history of judicial interpretation of precursor legislation, it would have become apparent that there is a right to be a bigot because there is a right to offend.

The world is full of thin-skinned folks who find offence, insult and bigotry for no better reason than that other people have the temerity to disagree with them.

In developing the jurisprudence over more than a century, the courts considered that the proposition that an individual could be subjected to legal liability for doing no more than that some other person was or might be thin-skinned enough to "find" speech-related conduct "offensive" - could not have been the legislative intent because it would be productive of absurdity and oppression especially for non-violent highly offensive and insulting dissenters.

The investigators only had to go back to the Vietnam War (Ball v McIntyre (1966) 9 FLR 237) or Korean War (Worcester v Smith [1951] VLR 43) for pointers to the many restrictions which had been judicially implied.

Here there is more high-level irony. The ABC report's four statutory examples all explicitly require proof of an objective test of reasonableness because the imposition of any legal liability for the subjective taking of offence is manifestly inconsistent with individual liberty.

If that was not enough to vindicate Senator Brandis, the posing of the question Do Australians have the right to free speech? had some unintended utility. It adventitiously managed to establish that what the Attorney said was unimpeachable for an entirely separate reason. The report had taken no account of the law of defamation even though the High Court of Australia cases concerning the implied constitutional freedom of communication in matters of government and politics mentioned in passing in the report include one notable defamation case.

Many an unsuccessful plaintiff in a defamation case will find the defensible defamatory statement – by definition, one having the tendency to excite hatred, ridicule and contempt – "offensive, insulting or bigoted".

Australian bigotry: a "reality check"

The Aesopian language of the ABC "verdict" and its supplementary defence about what may and may not be said in public mount a powerful case for having the ABC tweak the Fact Check unit's riding instructions so that it applies a measure of "reality" checking to disputed statements about the law.

The everyday reality is that s 18C of the RDA does not and cannot, for example, deter some Australians from expressing fanatical religious bigotry by way of rowdy public exhortations that other Australians be put to death for religious reasons.

However, absent a clear and imminent danger to public safety, the application of the general criminal law to such incitements to violence would be an over-reaction serving no useful purpose. The disseminators of such florid bigotry condemn themselves. The claim that a content/viewpoint specific civil censorship provision like s 18C is necessary or desirable to minimise public expressions of bigotry is no more than wishful thinking.

The reality is that Australia has survived such provocative displays of "hate speech" which should tell us something about the nation's innate tendency to practise tolerance and to reject violence as an acceptable political tool. And it signals the need not to be swayed by the hyperbole, patronising, stereotyping and fear-mongering which has been at the forefront of opposition to the repeal of s 18C.

ABC Fact Check's feather-duster swipe at Senator Brandis is, putting it as inoffensively as I can, a bit rich.

The national broadcaster should promptly own up to the blue it has made and reverse its "verdict".