Section 18C: the controversy that just won’t go away.

On the other, in the opinion of Human Rights Commissioner, Tim Wilson (who is also Free Speech Commissioner), 18C “sets a low bar to restrict free speech” and is bad law that “allows publications to be bullied through legal processes until their only viable option is to cower and self-censor”.

The problem is that, not only has section 18C altered the balance between two areas of human rights, it has become a precedent for other laws relating to people’s injured feelings and sensibilities. Something the common law has never been ready to condemn nor redress.

There is a number of federal, state and territory laws relating to a range of other anti-discrimination provisions in areas such as age, disability, political opinion, pregnancy, religious belief, gender identity, dress appearance, breast feeding, marital status, etc, in respect of which it may be argued that “to offend, insult or humiliate” anyone or any group with respect to those categories should also be declared unlawful.

The Andrew Bolt article was a poor piece of journalism deserving of condemnation by the Press Council, not the law.

So what now? Is there an alternative to repealing section 18C, which has proved so difficult to achieve?

We can learn from the English experience where incitement to racial hatred and vilification has been a constant problem for many years which, in particular and despite the difficulty of obtaining prosecutions, has given rise to special legislation to address hooliganism and incitement of abusive hate-related chanting particularly at football matches.

What Part III of the UK Public Order Act 1986 tells us, is that conduct involving the use of insulting words may amount to an offence when used in the context of an act of abuse, intimidation, incitement or aggravation.   

In other words, use of ordinary free speech which may offend, insult or humiliate can amount to unlawful conduct providedthose words are used in the course of abusing, intimidating, inciting, etc, someone or some group in a gratuitous act of racial hatred.

That being so, there could surely be no objection if section 18C(1) were to be amended, without changing its substantive wording, by inserting an additional new sub-clause to follow sub-clause (a) and which makes unlawful the conduct referred to in (a) when it is donein the course of a gratuitous act of abuse, intimidation, or incitement to racial hatred or vilification.

That would not only bring 18C within the concept of the UN Convention as intended but would also restore the right of free speech in racial matters which is expressly assured by that Convention.