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

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.

It is relatively straightforward to do so. First, parliament should change the Criminal Code and extend the protection against urging ­violence to all sections of society.

Second, it should establish a standard that can be applied consistently between protecting free speech and safety.

The obvious option is full repeal of 18C, which wouldn't leave anyone without protection.

The Australian Constitution charges states to frame laws around harassment, and they do.

The only reason 18C exists is because of the crafty work of man­ipulating the external affairs power to give the federal government the power to legislate for it.

Failing full repeal, the committee should recommend a standard that can be applied universally.

In its present form, the law is based on a subjective test of whether someone is offended, insulted, humiliated or intimidated, based on the attitudes of someone in that subgroup.

So it asks, for example, what a Chinese person thinks is offensive to Chinese people.

In practice that means some Chinese people can say things that non-Chinese people can't.

That has to change to an objective assessment of an ordinary Australian, so we are all treated equally.

Then the correct test should be introduced for all. A universal test can't be "offend, insult or humiliate". If you want to know why just ask Hobart's Catholic Archbishop Julian Porteous. He was hauled before Tasmania's anti-discrimination authorities for allegedly violating section 17 of the state's Anti-Discrimination Act.

Section 17 uses a similar test as 18C but goes beyond race and includes gender and sexual orientation and so on.

The case against Porteous was based on distributing booklets that argued for the existing definition of marriage in Australian law.

The case was absurd, but it is what the test in law allowed. That can't be repeated.

Adding the words vilification or hate speech would not solve the problem. They are opaque and can capture seriously offensive speech that still should be lawful.

A consistent and appropriately targeted test would focus on workplace harassment, which includes acts that seriously humiliate and denigrate people, causing intimidation. The other is public harassment that seriously humiliates and denigrates others to cause intimidation.

The difference between workplace and public harassment is context and intent. Speech always has a context. A workplace creates a more intimidating environment for people to express themselves - particularly because of the power relationships between employers and employees.

To trigger public harassment acts requires a known intent to cause intimidation. So abuse on public transport would be covered. But projecting challenging ideas - even those that offend, insult or humiliate, bringing culture shame - in newspapers wouldn't.

Such a law would get the balance in law right, stop frivolous cases and protect all Australians equally instead of creating special legal privileges for the select few.