Here’s a simple idea all lawmakers should adopt: when a law is fundamentally broken, it should be repealed. Not replaced. Repealed.
So it is with section 18C of the Racial Discrimination Act. Removing the words “offend” and “insult” from a provision that has been used as a weapon against newspaper cartoonists and university students is an incredibly modest proposal.
Any attempts to water down this inarguably sensible legislative change – by, for instance, replacing these words with a synonym of the removed words – should be recognised for what they are: an effort by those who have contempt for freedom of speech to kill off an amendment that seeks to restore this fundamental human right in Australia.
You don’t horse-trade on freedom of speech. Freedom of speech is an inalienable human right. It’s vital for democracy. Speech is the method by which our conscience manifests; an attack on freedom of speech is an attack on freedom of thought.
These are the principles that we need to constantly remind ourselves of in the context of the current debate in Australia around freedom of speech.
The modest reform bill currently before the Senate proposing change to section 18C is co-sponsored by 20 senators.
Part of the reason why the bill has garnered so much support among members of the upper house is that it presents such a sensible response to a clear policy failure.
The legal saga involving several QUT students – which took more than three years to be resolved at significant financial, professional, and emotional cost to the students and their families – and now the complaint against cartoonist and member of the fourth estate Bill Leak have sounded the alarm on a provision that has been a ticking time bomb since the law was first passed by federal parliament in 1995.
Australian Human Rights Commission president Gillian Triggs has disgraced herself in recent months, particularly in her oversight of the handling of these recent complaints brought under section 18C. Her intervention in the ensuing policy debate may yet be her biggest mistake.
Triggs has admitted that the status quo is unacceptable. Rather than adopting the elegant potential resolution on the table, she has proposed the replacement of the words “offend” and “insult” with the word “vilify”.
The Triggs proposal makes a mockery of the genuine attempt to reform section 18C. The word “vilify” is used in several state hate speech laws around the country, and it has been used as the basis for several cases that restrict freedom of speech in the same way that section 18C has.
Given this experience at the state level it’s clear that Triggs is either ignorant of the existing jurisprudence, or she is deliberately attempting to derail the reform process.
Fixing section 18C is as simple as repealing the provision, or parts of it.
There are countless laws that deal with threats, incitement and violence. All 18C adds to the body of law is a way to silence political opponents.
I’m writing this piece in the US, where a cultural reverence for free speech, underpinned by explicit constitutional protection, is ingrained in the American psyche. Free speech is not a partisan issue in the US.
Perhaps the most poignant recent illustration of this political consensus came in 2014 during an incident involving Donald Sterling, then owner of the NBA’s LA Clippers.
In August of that year, recordings of telephone conversations Sterling had had with his former girlfriend were released to the public.
Some of the comments made by Sterling in the course of those conversations were unambiguously bigoted, including telling his ex-girlfriend, “don’t bring black people to my games”.
Following NBA-imposed penalties on Sterling, US President Barack Obama, the nation’s first black head of state, was subsequently asked by a journalist about the incident and he declined to call for state intervention: “When ignorant folks want to advertise their ignorance, you don’t really have to do anything; you just let them talk. And that’s what happened here”.
Sadly, on this front Australia differs remarkably from our Anglospheric cousin across the Pacific. It is incredibly rare to find even small pockets of support for freedom of speech among members of Australia’s political Left.
The language employed by the Australian political Left on free speech gives the game away. Rather than engaging honestly in a debate about the reasonable limits of free speech, many on the Left accuse those who wish to expand the scope of debate unrestricted by state sanction of racism and hatefulness.
Attempts to expand free speech should be applauded. Getting on with the repeal, not merely the substitution, of the worst parts of section 18C is a level-headed step forward.
This article originally appeared in The Australian on the 11th of November, 2016.