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How to fix 18C without having to repeal it

By John de Meyrick - posted Tuesday, 15 November 2016


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?

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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.

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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:

(a) the act is reasonably likely, in all the circumstances, to offend, insult or humiliate another person or a group of people, when it is done in the course of abuse, intimidation, incitement and/or vilification;

In that way the section would then comply with the Convention and would also come within the general 'test' of free speech, as well as meeting the views of both 'camps' intent upon keeping/repealing the section as presently enacted.

The freedom of speech 'test' referred to, like that of freedom of expression generally, is the balance between hurt and harm. That is to say the law has never been concerned about the use of words, sounds, conduct or images that may only hurt the feelings or upset the sensibilities of a person or group, but whether those words, etc, have caused actual harm to that person or group – as in defamation, economic loss, damage, disadvantage, physical and mental health or any other such detriment.

Thus, when that 'test' is applied to attitudinal law (ie, 'mind set' law) which is the regulation of people's attitudes towards others in matters of bias, discrimination, equal opportunities, etc, for non-harmful words, sounds, conduct or images to constitute harm they must be used in a harmful way.

So it is, that an act (conduct) proscribed by the word "intimidate" in section 18C is properly regarded as harmful; whilst acts proscribed by the words "offend, insult and humiliate", without more, are not.

(The suggestion by some advocates that "humiliate" should remain on the harmful side of the 'test' is ill-conceived. It still lets in vexatious claims in cases such as those of the QUT students and the Bill Leak cartoon.)

The absurdity of the present situation is that there are quite a few other acts, state and federal, relating to discrimination on the grounds of age, disability, political opinion, pregnancy, religious belief, gender identity, dress appearance, breast feeding, marital status, etc, in respect of which it could be contended that what's good for the Racial Discrimination Act is good for those other acts as well.

So, for example, if it were unlawful to offend, insult or humiliate a person on the grounds of age, then someone who might call his neighbour a "stupid old bugger" could well end up before the Human Rights Commission charged with discrimination on account of that person's age.

(I leave it to readers to imagine for themselves some of the unintended possibilities whereby they might breach the law in regard to such other grounds of discrimination if the same provisions as in 18C were to apply.)

As for section 18C, if it's too hard politically to repeal then at least bring it within the context of proper law. As it stands it does not constitute a human right. Freedom of expression does.

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About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

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