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Why Section 18c should be repealed

By Sukrit Sabhlok - posted Monday, 28 July 2014

Criminal lawyers defend people that are considered morally reprehensible. This includes accused or convicted criminals such as Mick Gatto, Mark "Chopper" Read, Carl Williams and Jason Moran. These men have either been suspected of serious crimes or were convicted in a court of law.

But who are the criminal lawyers that defend these individuals in court, and why do they help accused murderers, kidnappers and extortionists? Why do they choose to be in a profession that involves interacting with the violent and mentally unstable?

For Tony Danos, a criminal lawyer who has been practicing since the 1980s, everyone deserves a fair trial. "At the end of the day guilt is something established by a court and it's not for me to pre-judge someone. Everyone deserves procedural fairness and a right to be heard."


"Most people plead guilty however", he adds.

There are many parallels between defending an accused criminal and defending free speech, (even for people who may abuse that speech to make racist comments).

When the second American President John Adams acted as counsel for 8 British soldiers charged with the Boston Massacre, he was well aware that his reputation as an American revolutionary who had fought against British oppression would be at risk. Nevertheless, Adams agreed to take the brief at a time when the defendants struggled to find anyone willing to represent them.

Adams was acting on a higher and nobler principle: the presumption of innocence and a 'fair go', even for people accused of heinous deeds.

In the same way this principle can be applied to other areas, including the recent controversy over section 18C of the Racial Discrimination Act. The real test of someone's commitment to free speech is not whether they will allow opinions they already agree with, but whether they will – like criminal lawyers – defend the freedom of those they abhor.

People shouldn't be assumed to be racists until they're proven as such. To be proven a racist, merely expressing a politically incorrect opinion shouldn't be sufficient. Something more should be required – preferably there should be evidence that an individual has deliberately denied members of an ethnicity access to their place of business without good cause, or has fired them from employment due to racism (to cite two examples). Journalist Andrew Bolt, who was held liable under 18C despite maintaining he's not a racist and was only discussing issues of public importance, is an example of someone whose free speech was stifled without a good cause.


Another parallel that can be drawn between criminal lawyers and free speech advocates opposed to section 18C is that they acknowledge there are many grey areas in social discourse.

One of Danos' most difficult clients was Tony Angel. Angel was charged with culpable driving after going through a train crossing and becoming involved in a collision that killed his daughter and wife. One would think that the parents of Angel's deceased wife would hate him – yet the parents of Angel's deceased wife stood by Danos' client at court suggesting there was no clear 'bad guy' in this case despite Angel being charged by police. The case highlights how things are not always black and white in criminal law.

Similarly when free speech advocates argue against section 18C, it does not mean they want to protect bigots and allow them free reign. There are many grey areas when it comes to speech. In Andrew Bolt's case, it is possible to make an argument that he was raising issues of legitimate importance without intentionally wanting to be racist.

Voltaire is (incorrectly) credited with saying "I disapprove of what you say, but I will defend to the death your right to say it". Free speech is fundamental in liberal democracies because it allows for vigorous debate and discussion on matters of importance that may be politically incorrect and repealing section 18C would contribute to that.

If Australia had a Bill of Rights guaranteeing free speech as in the United States, the ability of the federal government to restrict speech would have been limited in any case. Since we do not have a Bill of Rights, only an alert populace can stop encroachments upon their liberties.

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About the Author

Sukrit Sabhlok is a PhD Candidate at Macquarie University Law School.

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