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18C requires non-racial remit without curbs on free speech

By Tim Wilson - posted Thursday, 22 December 2016

The proper test in law between preserving free speech and protecting community safety is not whether someone is offended, insulted or humiliated. It is whether they are harassed or intimidated.

The joint parliamentary hu­man rights committee is at present inquiring into the infamous and ridiculed section 18C of the Racial Discrimination Act. Infamous because it has been used as a weapon to censor public debate, as demonstrated by the cases against cartoonist Bill Leak, columnist Andrew Bolt and Queensland University of Technology students; ironically, the QUT students were pursued for comments against ethnic segregation.

Ridiculed because it is being used in a case by a Japanese community group to resolve disputes about events against Koreans during World War II.


This farce has not emerged because of the cases but the law.

In its existing form, the test in 18C is whether someone is offended, insulted, humiliated or intimidated. To understand the absurdity of this test we need to step back and look at how the tension between free speech and safety operates across federal law.

The federal Criminal Code makes incitement to violence and advocacy of terrorism a crime. Significantly, these tests operate without reference to race or any other matter.

The code also includes a protection against urging violence toward groups, but that is a crime only if it relates to groups united by race, religion or politics; other groups aren't covered. The only other relevant law for public acts is 18C, and it applies only to race, colour or national or ethnic origin.

No other area of federal law seeks to make public acts unlawful simply for offending, insulting or humiliating someone.

In its present form 18C has more in common with anti-blasphemy laws in theocracies than it does with other federal laws.


To put into context just how bad 18C is, under federal law you can urge violence against groups of people with a disability, gays or women but you can't offend people on the basis of their race.

In its present form 18C is not a protection of people's human rights on the basis of race; it grants a special privilege that isn't afforded to others in society.

For example, under federal law a person can urge violence against gay and lesbian people. But if another person unreasonably offends the ethno-cultural basis of their hostility to same-sex attracted people, they can be captured by 18C. That's insane. The parliamentary joint committee needs to make sensible and practical reforms that protect free speech, community safety and establish a test in law that treats everyone equally.

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This article was first published in The Australian.

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About the Author

Tim Wilson is the federal Liberal member for Goldstein and a former human rights commissioner.

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