How to fix 18C without having to repeal it

Let me be blunt: Section 18C of the Racial Discrimination Act 1975 (Cth) is an anomaly. It should never have been inserted in the Act in 1994. It is not supported in any way by the UNConvention on the elimination of all forms of racial discrimination,the adoption of which brought the Act into being. It has nothing to do with human rights. And it contravenes the Convention's expressly assured provision of the right of freedom of speech in regard to racial discrimination.

But now that we have it as part of the Act it has become a legal 'silencer' and a political 'football' as well as a 'sacred cow' of the nanny rights brigade.

So, how to appease the situation and reach a sensible compromise in this controversy and still preserve the integrity of one of the essential elements of a democracy – freedom of expression – which is embedded in the over-riding UN Universal Declaration of Human Rights?

First, let's look at the controversial words of section 18C as applied to racial discrimination (shown underlined):

(1)It is unlawful for a person to do an act, otherwise than in private, if –

(a)the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people;

Use of language described by the words "to offend, insult, humiliate" is part of free speech. Those words belong within a group descriptive of 'confronting conduct'. Words such as: mockery; derision; sarcasm; criticism; belittling; rudeness; antagonising; scorn and so forth. None of which constitutes unlawful conduct per se.

Social norms may dictate that we should tolerate and respect each other and to apologise for any unintended hurt that we may cause. But howsoever we conduct our relationship with others, none of us has a right not to be offended, insulted or humiliated. We do it to each other all the time. It would be a nicer world if we didn't. But it has never been unlawful for anyone to do so until 18C came along.

However, ordinary free speech using language that offends, insults or humiliates, may amount to unlawful conduct when used in various contexts, such as when the user of that language resorts to abuse, intimidation, incitement, threats or vilification. That is, conduct going beyond mere 'put down' of the other person or group.

In this we can learn from the UK experience where incitement to racial hatred and vilification has been a constant problem for many years, particularly at football matches and other volatile sporting events.

Despite the difficulty of obtaining prosecutions, the UK introduced special legislation as Part III of its Public Order Act 1986 to make unlawful the use of insulting words, when used as part of abusive hate-related chanting and other intimidating conduct at sporting venues. That amendment has largely worked. Such conduct has since abated significantly.

In keeping with that approach, the way to resolve the controversy in relation to section 18C is to amend subsection (a) by adding the words underlined: