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How much freedom to hate do you need?

Section 18C of the Racial Discrimination Act 1975 makes it unlawful for someone to commit a public act that is reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity.

Section 18D of the Racial Discrimination Act contains exemptions which protect freedom of speech. These ensure 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.

While opponents of 18C argue that it stifles freedom of speech, the courts have consistently interpreted sections 18C and 18D as maintaining a balance between freedom of speech and freedom from racial vilification. The courts have held that for conduct to be covered by section 18C, the conduct must involve:

“…profound and serious effects, not to be likened to mere slights.”

This is a point opponents of 18C always ignore. Section 18C isn’t about insensitive jokes and hurt feelings, it’s about genuinely malicious behaviour. Typical examples of successful prosecutions under 18C include:

Holocaust denial and anti-Semitism;

a case in which Aboriginal youths killed in a car accident were described as “criminal trash” and “scum” that should be used as “land fill”; and

a case in which an Aboriginal women and her family were subjected to an torrent of abuse, including being called “niggers”, “coons”, “black mole”, “black bastards” and “lying black mole c**t”.

Sections 18C and 18D were introduced in 1995 in response to recommendations from major inquiries including the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. Those inquiries found that racial hatred and vilification could cause emotional and psychological harm to their targets, and reinforce other forms of discrimination and exclusion. They found that seemingly low-level behaviour often softened the environment for more severe acts of harassment, intimidation or violence by implicitly condoning such acts.

Sections 18C and 18D have existed in Australia for 21 years. They have been in existence for the entire time Andrew Bolt has been employed at the Herald Sun. They have been in existence for the entire time Pauline Hanson, David Leyonhjelm, Cory Bernardi, George Christensen, and the majority of conservative MPs calling for their repeal, have sat in parliament. They existed when One Nation, the United Patriots Front, and countless other hate groups demanding their freedom to offend, insult, intimate and harass were formed.

Those who claim that 18C limits their freedom to speak include a number of conservative MPs who, in addition to having access to taxpayer funded media staff and the national media itself, enjoy legal immunity through Parliamentary Privilege, which protects them against civil or criminal liability for actions or statements made in the course of their legislative duties. Outside Parliament Pauline Hanson has made regular TV appearances since 2004 and holds down a guest spot on the Today show. While Leyonhjelm, Bernardi and Christensen have hardly been starved of the opportunity to put forward their unstifled opinions.

Other opponents of 18C include:

The IPA, one of the most over represented organisations in Australia, with members filling a number of positions in the media, on Government boards and the Government benches;

Andrew Bolt, the most widely circulated commentator in Australia;

radio shock-jocks such as Alan Jones, one of the most highly paid and influential media personalities in Australia; and

News Corp, the largest media organisation in Australia owned by the proprietor of the largest media organisation in the world.

Opponents of 18C include some of the loudest and most influential voices in the nation, they possess more freedom to speak than anyone else. Their opposition to 18C has nothing to do their freedom of free speech, it is about tipping the balance between freedom of speech and freedom from racial vilification in their favour.

Earlier this week the Government rather meekly called for submissions regarding 18C to their “Inquiry into the freedom of speech in Australia”. While the people who claim that 18C stifles their freedom of speech have had years to make their case, the rest of us have until Friday.

Commenting on this Blog entry will be automatically closed on February 4, 2017.