Free speech and Section 18c

Senator Day, with some additional support from a few other Senators, has introduced a bill into the Senate to remove the words ‘offend’ and ‘insult’ from the Racial Discrimination Act. These words are in the present Act, and make it unlawful  for someone to do something that is reasonably likely to “offend, insult, humiliate or intimidate” someone because of his or her  race or ethnicity.

There is a defence against 18c in the present Act: 18d allows that artistic works, scientific debate and fair comment on matters of public interest are exempt from section 18c, providing they are said or done reasonably and in good faith.

The Government had a draft bill which you can read here, which it subsequently withdrew, pleading that the need to keep the Muslim community onside was more important than freedom of speech. Its draft replaced the first three verbs quoted above with ‘vilify’. I thought that a great improvement, and regretted the Government’s abandonment of the bill.

That Bill also replaced Section 18d with a much more rounded defence:

(3)  Whether an act is reasonably likely to have the effect specified in sub-section (1)(a) is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.

(4)  This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.

I think that Senator Brandis, the Attorney-General, got that about right.

I need to declare an interest. Anyone like me who writes about contentious issues has to be careful in his use of language, and since I have been writing for the public for fifty years I think I have learned how to do it. But 18c is a big stick, since a complainant has only to say that he or she feels ‘offended’ or ‘insulted’, and the game is  on. In my own case, as a writer on Australian politics and society, with many published works, Section 18d is almost certainly going to be an adequate defence.

Nonetheless, debate can be stalled indefinitely if someone complains, since each party then needs to consider legal remedies, and avoid anything that might be construed as contempt of court while the case drags on. In my view 18c has led to a self-imposed restriction of useful comment in many areas of our public life, and that has led to an impoverishment of democratic discussion — at least in print.

People can be offended or insulted every day, and most of us by the end of adolescence have learned to led hurtful remarks pass over our shoulders. Anthony Dillon, an academic who is also indigenous, has suggested that people are far too quick to take offence, when there is no need to: words are neither offensive nor inoffensive in themselves; they are simply words, and this is true even if a judge says otherwise. People choose to make words offensive to themselves, which is why one person can be offended and another amused by the same word.

If you think that you, too, might be easily offended, then you can read ten tips for lowering your touchiness, right here. They’re pretty sensible, too. Abraham Lincoln said that  We should be too big to take offense and too noble to give it. I think that is a decent rule of life, and commend it. I try to practice it, too. On the other hand, Thomas Carlyle argued that No man lives without jostling and being jostled; in all ways he has to elbow himself through the world, giving and receiving offence.

Senator Day simply wishes to remove the words ‘offend’ and ‘insult’, but I rather prefer Brandis’s ‘vilify’, a lovely old-fashioned word that comes from the Latin vilem, meaning cheap, common, mean or base. So to vilify people is to degrade them, defile, reduce them to a lower standing or level. Brandis’s Bill says that to ‘vilify’ is to inspire hatred. You get the idea. I think that fits what I imagine to have been the moral purpose of the original Act. And I’m happy with ‘intimidate’, which means to leave people with a real sense of fear (literally, make them timid).

‘Offend, insult and humiliate’ are all about the feelings of the person who has been talked at or about. ‘Vilify’ and ‘intimidate’, in contrast, are rather more about getting people to act afterwards in a different way.

Having said all that, I still think that Act leads to a form of political correctness, in which one refrains from saying anything of any real consequence, because it might land you in court.

Tim Wilson, the Human Right Commissioner, has written: There will always be a constituency that wants government to restrict the human rights of others for their preferred public policy goal. But doing so always risks undermining the human rights of all Australians. Discussing changes to the Racial Discrimination Act were the beginning of our national discussion on the importance of free speech, not the end.

Free speech seems to be of little consequence at the moment, and that is a great pity. I don’t think that Senator Day’s Bill has any chance of being put into law, but I hope that it doesn’t go away from public notice, and that in time Senator Brandis’s Bill returns for proper debate.