18C Human Rights
Posted on Wednesday, 1 March, 2017
Mr RAMSEY (Grey—Government Whip) (16:30): There has been much debate regarding the Racial Discrimination Act in Australia, particularly section 18C, and we have all become increasingly familiar with 18C, which creates an offence of saying anything which is reasonably likely to offend, insult, humiliate or intimidate another person or a group of people because of their race, colour or national or ethnic origin.
The commitment to repeal 18C was taken by Tony Abbott to the 2013 election, and for good reason: it is fundamental to a free and functioning democracy that we protect the rights of individuals to free expression of genuinely held belief. In the interim there have been some very high-profile cases that have generated a groundswell of support to repeal at least part of 18C, perhaps by removing the words 'offend' and 'insult' from the section rather than completely repealing it. The course of action that has been proposed by the Parliamentary Joint Committee on Human Rights is a possible option for reform of the act. It is a disappointment that they could not have been more deliberate in their recommendations in this area. However, to cut off the short history of the joint committee's report, it is worth noting that, when the newly elected Abbott government moved to deliver on its commitment to abolish 18C, a large antireform group coalesced, and it became increasingly obvious that there was no chance of passing the required legislation through the Senate. As such, Prime Minister Abbott determined that, with so much of the government's reform agenda being held up by an intransigent Senate, the government's efforts were better spent elsewhere, and the proposal was dropped.
We as a society have implemented laws to protect our freedoms and our way of life, and in Australia the law is one of the tools available to combat racial vilification. That is why the Racial Discrimination Act exists. Freedom of speech, however, is a fundamental right in our democratic society, and we are blessed to live in a country where we have basic freedoms. As with all these things, it is a matter of balance. If we have no law, we surrender our freedom. If we have laws that restrict too much and impinge on our ability to move and to speak on the issues that truly concern us, that too impinges on our freedom.
Some have called for the total abandonment of 18C and consider that other protections that sit within our law structures, such as those against libellous and defamatory statements, are sufficient, and a powerful case can be made for that. However, given the events surrounding the last attempt to abandon 18C, it is highly likely that another attempt would meet the same fate. In that case, serious consideration needs to be given to whether, in Australia, the giving of offence or insulting an individual should be subject to legal sanction. It is indeed a very low bar and a totally subjective judgement, and in my opinion laws that depend on subjective judgement should be avoided wherever possible.
It is a section of the legislation which silenced Andrew Bolt in 2011, stemming from the comments he made in a newspaper column that were deemed to have contravened section 18C. It is also these words which led to the outrageous attack on four Queensland university students in connection with the now infamous Indigenous-only computing room on campus, urged on by our Human Rights Commission, who seem to have lost the most important filter of all, common sense. Individuals were supported in laying charges against other individuals that common sense should have told them should never have been laid. Common sense would have precluded such support, but it seems that the Human Rights Commission was in their opinion motivated by law. If that is the case, it is surely time to reconsider the laws that generated that behaviour.
Let us consider the premise of offence and how broadly we construe the notion of offence. The frighteningly low harm threshold, through the use of the words 'offend' and 'insult' is problematic. Freedom of speech means people sometimes will be offended. What may not offend 99.9 per cent of the population may well offend just one person. This definition makes the statement of offending perhaps just one person an offence—in fact, people can choose to be offended. It is clearly preposterous and it should be rectified. This would not sanction speech that vilifies or insights racial hatred.
It is possible that section 18C was an appropriate piece of legislation for its time. However, it is the nature of our legal system that decisions are made on the basis of precedence. There are many areas of law where this results in incrementalism, or a reinterpretation of the original intent of the law. If this continues to occur then it becomes highly likely that the original laws will need to be amended to allow for this reinterpretation. This is what needs to be done in the case of section 18C. A law that once seemed to rest easily in Australia is now doing harm to interracial relationships by destroying social harmony and cohesion and increasing hostility and resentment towards ethic and racial minorities.
We may disagree with views that contradict our own, but it is surely a better mechanism for harmony to throw open discussion and encourage ideas rather than prohibit them. In fact, none other than the champion of the left-wing press, David Marr, said as much six years ago in The Sydney Morning Herald: 'In a free society, giving offence is necessary.' Australia is a robust society—certainly in the political field it is extremely robust—and it is an underlying strength of our democracy that we must be prepared to fight for. Political correctness is not only strangling the Australian vernacular, it is limiting the manner in which we can discuss the important issues of our time. Unbelievably, we have surrendered the right to call a spade a spade. Who would ever have believed that of Australia? Minorities find themselves, under section 18C, in a unique position as the wielders of an unfair weapon available only to them. How is it that a middle-aged white male in Australia would almost certainly not find 18C a protection for abuse or victimisation?
Bess Price, that remarkable young Indigenous Northern Territorian said:
If a non-Aboriginal attempts to address any of these issues—
she is referring to domestic violence in Indigenous communities—
and an Aboriginal person is offended by this they can simply call ‘racist’ and the debate is shut down.
The risk 18C imposes on public debate is compounded by requiring that the commentary is only reasonably likely to 'offend' or 'insult'. Freedom of speech is crucial to the quest for truth and honesty. Society will more effectively ascertain accurate facts and valuable opinions in an atmosphere of free and uninhibited discussion and criticism of a debate. Simon Breheny from the Institute of Public Affairs recently revealed that there are 18 complaints currently under consideration by the Australian Human Rights Commission and that over the last six years there have been 838 complaints lodged under 18C. Section 18C has restricted freedom of speech in our democracy without people even knowing it.
What compounds the issue is that section 18C has done nothing to eliminate racial discrimination but has had a truly detrimental impact on freedom of speech. If not for the high-profile case of Andrew Bolt and the Queensland University of Technology case public awareness of the implications of section 18C would be largely unknown. However, we should not make the mistake of believing that it only has an effect in those high-profile cases. It is seriously limiting the extent of discourse and honesty on a daily basis. If the Australian Human Rights Commission takes a selective rather than a rational position on cases and in their interpretation of cases brought before them, an ideological position stands to incur more harm than good for racial relations. 'Offend' and 'insult' are too open to interpretation. These words are subjective and rely on the emotions and the responses of the recipient. Australian law should not be based on subjectivity. Section 18C of the Racial Discrimination Act has survived for more than 20 years without being challenged in the High Court of Australia, and the time has come to review and adapt the act. In Salman Rushdie's words:
Democracy is not a tea party where people sit around making polite conversation. In democracies people get extremely upset with each other. They argue vehemently against each other's positions. (But they don't shoot.)