Reframing the 18C debate – The One Question

The debate about s 18C of the Racial Discrimination Act has reemerged. It’s not a debate most Australians asked for, yet a vocal minority of mostly conservative white males have managed to garner it an inordinate amount of attention.

For those not familiar with the Act, s 18C and its companion provision 18D were introduced as part of Part 2A in 1995. These provisions relate to limitations on hateful speech on the basis of race and ethnicity, in order to support a multicultural society and to give effect to obligations under international law.

s 18C, the provision most often focused upon in this debate, makes it unlawful to do in public an act that is reasonably likely to offend, insult, humiliate or intimidate another person or group, where that act is done on the basis of race, colour, or ethnic origin.

Opponents of this provision, and some in the media, describe it as making it illegal merely to offend or insult people, and claim it’s a law on thought. The latter claim is obviously false, for one can hold any thoughts they wish, and even share them around the dinner table. The law is only concerned with the expression of those thoughts in public, where they are capable of having a deleterious effect on the rights of others.

As for the words “offend” and “insult”, yes they are words that could potentially be applied broadly. But as with all law, it relies on interpretation, and sensible application by regulators and the judiciary. The judiciary recognises that there must be a balance between free expression, and the necessary restrictions on that to protect the essential rights of freedom and dignity. That is why in the 2001 Cook case the court held that “offend and insult” must relate to an act with “profound and serious effects… not mere slights.”

This respects the position in international law, affirmed by Article 19 of the International Covenant of Civil and Political Rights, which states everyone shall have the right to hold opinions without interference, and everyone shall have the right to freedom of expression. Article 19.3 states that right to expression may be subject to certain restrictions provided by law to protect the rights and reputations of others, and to protect public health or morals.

Rarely addressed by either opponents of 18C, or the media who are meant to interrogate their arguments, is the companion provision of s 18D. This provision contains exemptions to the restrictions in 18C. So long as what it said is done reasonably and in good faith, then artistic works, public debate and discussion, scientific publications, or any fair and accurate report in the public interest, or fair comment in the public interest expressing a genuinely held belief, is exempt. It is not unlawful.

It’s easy to see why 18C opponents don’t raise 18D, because it’s a generous provision. There was a rare occasion recently where a journalist, the wonderful Patricia Karvelas on RN Drive, did interrogate an 18C opponent, Senator James Patterson, on the subject of 18D. His response was to first claim the provision didn’t work, citing the 2011 Andrew Bolt case, and then to argue courts shouldn’t be the ones to decide what is fair and reasonable.

It’s a common refrain in this debate, to cite a purportedly unfair decision (invariably the Bolt case), and then to discredit the judgment and legitimacy of the decision maker. Journalists though rarely if ever ask for a further precedent. Recently 18C opponents have begun offering a second example, the as yet undecided case before the Federal Court involving students from QUT.

So relatively rare are judicial proceedings arising from s 18C, a tiny proportion of total complaints received under the provision, that the scarcity of precedents offers by 18C opponents to support their cause should be telling. Indeed opposition to 18C, including the IPA’s campaign, only began after the Bolt case, against the then 16 year old provision. It is disappointing the media has not delved into this more, though I commend the always erudite Waleed Aly for doing so briefly this week in the Sydney Morning Herald.

Unfortunately the debate over 18C ignores precedent and statistics from the 20 years the provision has been in force, in favour of abstract philosophical arguments. Consider this example from Guardian Australia’s Melbourne Editor Gay Alcorn:

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And this from the IPA’s Simon Brehany:

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Let’s remember that under Australian law, free speech is protected to the extent that it is necessary to ensure enfranchised citizens can cast an informed vote, referred to as the “implied freedom of political communication.” And as touched on earlier, international law recognises the importance of free expression to civil and political life, but also recognises it may be limited to protect the rights and reputations of others.

Neither international nor Australian law provide a sound basis for Brehany’s or Alcorn’s philosophical arguments, which are by no means unique in this debate. This is to be expected, as law demands nuance and detail, careful interpretation, and the balancing of rights. But abstract philosophical arguments are attractive, perhaps that is why they have taken centre stage in this debate. Free speech is perceived as good, so is democracy. But in the abstract they have no regard for the detail, for the balance of competing rights. And so long as these abstract philosophical arguments take centre stage, the debate over 18C will be one that goes in circles.

We need to reframe the debate, and we need to do so based on s 18D. Section 18D is the generous provision that is there protect free speech, that says all the things we can still say and do in good faith in public, that will not cause the ills s 18C seeks to prevent. It is there to ensure we can still engage in public discourse, that opinions can still be expressed, that journalists can still report, and that science and the arts can still shine a light on society as they must.

The simple question that must be asked in this debate is what do you want to say or do that isn’t already permitted by s 18D?