There is no right not to be offended. Yet dozens of provisions on the commonwealth statute books make it unlawful or illegal to offend.
There is a right to freedom of speech, and each of these laws is an attack on that right.
The existence of these laws is an embarrassment to Australia as a country that holds itself out as a liberal democracy. As a minimum, from the perspective of the restoration of free speech, every one of these laws should be repealed.
And as luck would have it, a bill that does just that was introduced by NSW Liberal Democratic Party senator David Leyonhjelm just last month.
It’s a revealing read. No doubt readers of this paper will be familiar with perhaps the most famous legislative use of the word “offend” — section 18C of the Racial Discrimination Act 1975 makes it unlawful to “offend, insult, humiliate or intimidate” another person on the basis of their “race, colour or national or ethnic origin”.
But the Leyonhjelm bill demonstrates that section 18C is not alone. Far from it. The bill catalogues more than a dozen provisions that make it unlawful or illegal to offend.
Most people would have no problem removing some of the provisions included in the bill. Did you know it’s unlawful to register a name in respect of a plant variety if the government deems it to be offensive? Better yet, did you know about the Plant Breeder’s Act 1994? It’s not clear how society functioned before 1994.
Under the present Criminal Code Act 1995 you could also find yourself in jail if you use the postal service to “cause offence”.
Cause offence? Until recently I lived in a local government area where the council used the postal service to send me a five-times-a-year magazine called Divercity, which helpfully recorded all the left-wing, virtue-signalling garbage the council was engaged in.
That was pretty offensive. And why five times a year? Surely that’s enough to make it an aggravated offence.
The removal of other provisions — despite the logic of the argument — is a bit harder to swallow.
But the great thing about the Leyonhjelm bill is that it is consistent. And it progresses a debate that has been raging for some years now. The argument for repealing section 18C is clear because the practical consequences of the provision are so well known.
The Australian public has been made aware of the existence of this law through a number of high-profile cases. And through those examples, Australians have made up their minds about the malevolence at the heart of this provision.
We don’t want to see university students such as Alex Wood and Calum Thwaites dragged through secret legal proceedings for sensible commentary about race-based university programs; we don’t want cartoonists such as the late, great Bill Leak hauled before a government bureaucrat for making funny cultural observations; we don’t want journalists censored for writing about important matters of public policy, which is what happened to Andrew Bolt in 2011.
And if it’s wrong to make it unlawful to offend in the context of the RDA, then it’s also wrong elsewhere. So the challenge is now before federal parliamentarians.
Because the concept of freedom of speech still holds significant rhetorical power and cultural significance, everyone says they are in favour of it. But in so many cases this is just not true.
If every time you say the words “I’m in favour of freedom of speech” and then follow it up with the word “but”, you might be better off admitting you are not in fact in favour of freedom of speech.
It’s not yet the most socially acceptable thing to admit, but if it’s true and you are willing to say it, you might just be in for a much more honest and interesting discussion. So much modern political debate is hamstrung by dishonesty.
Evidently, a majority of federal politicians over the years have paid lip service to the principles of free speech while voting for legislation that places restrictions on it. Parliamentarians have allowed these restrictions to accumulate and, despite appearing in some cases small and innocuous, they should not be ignored.
Our liberties are often put at risk incrementally. Overnight authoritarianism is rare. Creeping authoritarianism is much more commonplace. Every one of these provisions is an attack on our freedoms.
The parliament ought to use this opportunity to start making inroads into the hundreds of laws that restrict free speech. As James Spigelman, a former chairman of the ABC, said in his 2012 Human Rights Day Oration, “there is no right not to be offended”.