Free speech/section 18C policy

Currently our civil liberties policy says:

Remove existing laws which unduly restrict privacy, speech, expression and access to information

  • Repeal section 18C of the Racial Discrimination Act.

The problem with this policy, as was evident when we submitted on the Government’s “Freedom of Speech Bill” a few months ago, is that it doesn’t actually deal well with alternatives to s 18C. The Government’s proposal wasn’t just the repeal of s 18C, it was also a replacement section for ss 18B–18E. I recently wrote an analysis of the changes which you can find here: It provides a lot of the background to this post, so read it if you can.

I think our policy on this isn’t robust enough to deal with different proposals. We oppose s 18C on the basis that it unduly limits freedom of speech. But our policy doesn’t take a stance on whether “vilification” and “intimidation” on racial grounds are acceptable limits on freedom of speech. Nor does our policy address vicarious liability (whether employers should be responsible for their employees’ vilification and intimidation). Lastly it doesn’t deal with exemptions: if we accept vilification and intimidation, should the long list of proposed exemptions be supported?

We don’t want to go into such detail that we’re writing legislation, but it recently irked me when we linked to the policy and I saw that remained. I’m thinking that our policy should change to be along the following lines:

  • Repeal the subjective aspects of s 18C.
  • Include vilification and intimidation, and their definitions.
  • Keep vicarious liability provisions.
  • No exemptions to vilification and intimidation.

Just some thoughts to make our policy a bit more robust.

If we’re revisiting this I’d suggest referring back to the idea from a few months ago (I forget who proposed it) for a holistic anti-discrimination law which prioritizes speech and human rights. That would provide grounds to repeal the whole of the racial discrimination act rather than just one specific problematic clause.

What crystalised my views on 18C was the attempt by the ALP in 2012 to extend the 18C provisions to cover all kinds of other speech including making it unlawful to offend someone on the basis of religion. That was shocking, but it did provide two insights that might be useful in guiding our approach:

  1. censorship tends to metastasize if it’s allowed a foothold in law.
  2. it really is senseless to treat different types of discrimination differently (we can presumably at least grant that point to the ALP).

I believe I suggested it, and @dcrafti may have also suggested it independently at another time.

I think as a stopgap measure what @Mozart proposes is a good start.

I think the key thing we have to do is to explicitly explain any restrictions on free speech we would keep, in terms that show how we are balancing free speech with the either to dignity or other rights.

That’s how we can say that insulting or offending isn’t enough of an affront to dignity to curtail free speech, but speech that actually excludes a person from society on the basis of something of which they’re not in control, and does so in a way that encourages others to do so as well, can put the balance against free speech.

With regard to @MarkG’s comments to repeal the RDA, we should keep in mind that most of the act is unrelated to hate speech and is about actual discrimination, such as in the workplace. That could be put in terms that aren’t just relevant to racial discrimination, but the protections themselves should exist. I think that’s what Mark is saying as well.

By the way the “alternative” to 18C in the policy is simply to not have specific censorship targeted to one type of discrimination. In other words to treat discrimination as a whole more consistently.

It’s incumbent on supporters of censorship to demonstrate that censorship works using evidence and reason. Until someone has done this, censorship has no place in an evidence-based policy set.

Another way to look at it is that s 18C is not actually an anti-discrimination provision and our policy could be to axe it from the RDA entirely.

Then introduce a general anti-vilification law that implements the Racial Discrimination Convention and the ICCPR as appropriate. It’s my feeling that we could not repeal s 18C and maintain our international obligations unless it was replaced with something. The prohibition of vilification and intimidation would be sufficient, and possibly we could extend that to vilification and intimidation of a person or group of persons on the basis of anything.

Consolidation of anti-discrimination legislation could be useful; NSW has a single Anti-Discrimination Act.

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I agree that s 18C was a failure. The Bolt Case wasn’t appropriate to bring and probably brought more ill-feeling against those Bolt’s articles were directed at. The suggestions of the HREOC seem to be in line with what you’ve suggested (and I agree with it):

The Human Rights and Equal Opportunity Commission (‘HREOC’) also recommended a civil offence for ‘incitement of racial hostility’ with a threshold higher than conduct resulting in ‘hurt feelings or injured sensibilities.’

There is a difference between not being able to say something and having consequences for what you’ve said. Assault has never been challenged as an unfair restriction on speech: where someone apprehends imminent violence, the community seems generally happy that that should be a crime. Should this be extended to ‘arms length’ circumstances, where someone broadcasts or publishes material that incites others to ‘vilify and intimidate’ a person or group of persons?

I think a Federal version of the NSW anti-discrimination act created in line with PPAU values could be solid. If we’re going to change the policy I’m for doing it once and doing it right.

Proposals like the Family First plan to change the subjective terms to which 18C refers are basically just semantic changes. We’d still have to accept the idea that different types of discrimination should be treated differently. We’d still have to abandon the principle of evidence-based policy by supporting something (censorship) which we know doesn’t work and which is basically a form of hate speech in itself. It wouldn’t stop another Bolt case: his article was judged to have been “intimidating”, and with the safeguards of 18D removed (per the proposal above) the sole protection for speech will be a judge’s interpretation of a reasonable person test. If we’re going for a stop-gap solution the Brandis amendment at least provides a starting point in that it sets some boundaries on the lunacy of censorship. I don’t think a party which puts “free speech” right up front on its stickers can be seen to do less.

“Intimidate” is currently not defined in the legislation. The threshold in Eatock v Bolt was much lower than that of the proposed replacement, and is currently in its ordinary meaning. I don’t think under the specifically defined replacement section a repeat of the Bolt case would be likely. Also, it is significant that very few cases are in fact successful under the current legislation.

Clearly defined restrictions that are reasonable for achieving the fulfilment of other rights (in this case the right to personal security) should be easily defensible.

On the other hand, I do question the necessity of censorship and indeed whether it works. I suppose if we didn’t have vilifying and intimidating speech from radio broadcasters, we’d just get networks of racist gangs which could arguably be worse.

A tough situation.

A person at the UNSW Constitution Day event @piecritic and I attended asked “how better can we protect minorities from hate crimes?” How about we reframe this discussion towards consideration of the question: “How can we repeal s 18C and promote freedom of speech while at the same time reducing hate crimes?”

If we let people say what they like, even if it incites hatred and violence, how can we ensure that people don’t harm others as a result?

I suppose I’ll try answering my own question then…

It seems to me that almost every bad thing in the world boils down to education, or lack thereof. Racism is an extension of intolerance. Humans seem to naturally notice difference. I’ll go anecdotal for a moment and say that where I live is very culturally homogeneous: almost everyone is of Anglo ancestry, save for a reasonably sized Maltese minority. A Sikh family recently moved into the nearest town and they draw attention purely for the fact that finding someone who knows what a turban is seems pretty hard here. A bit of education seems to go a long way towards encouraging tolerance and acceptance. Some will pick up on my use of words there, I know. But tolerance is a good first step towards acceptance.

The problem then is what to do in the short term for the bulk of the population who have already passed (and will continue to pass) the point where it’s too late to start educating and building tolerance/acceptance. Until our education policy gets taken seriously, we’ve got to do something else.

We have a situation in which someone says something and a small number of people think it ought to be acted upon. As I’ve said, I don’t think Bolt said anything too dangerous. It would be a stretch for it to actually cause violence, and even then it’d be like blaming Tarantino for copycat behaviour. Reasonable adults (i.e. the audience for his films) wouldn’t go out and start carving swastikas into foreheads.

But what if it is something like “all [minority] must die”? How do we prevent the small number of angry people causing untold damage. Look at what’s been happening to the Muslim community in Australia at the moment. Ostensibly, and to the best of my knowledge actually, they are on our side and they’re being victimised from people who are taking certain statements a bit too seriously.

Perhaps robust freedom of speech is in fact the answer: but where is the majority voice of reason at the moment to sway the public against race crimes?

Therein lies the crux of my problem: it seems assumed that “bad ideas” will be argued against and somehow balance out. The empirical evidence seems to indicate the opposite: bad ideas get acted upon rather than shouted down.


Ultimately the thing that will stop race hate and similar is for it to be socially unacceptable. Education is obviously a mechanism to achieve that.

It’s unfortunate that this debate has revolved around such a polarising figure as Andrew Bolt, because I think it has meant that for many people, especially those in the political class, their opinion of Bolt himself has coloured their approach to the issue.

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That’s a good statement, I like it. Education is one way to achieve it. What are some positive measures we could consider in the short-term? Thinking about people who can’t receive it through formal education (i.e. the bulk of Australians who have left school).

[quote=“Mozart, post:10, topic:330, full:true”]If we let people say what they like, even if it incites hatred and violence, how can we ensure that people don’t harm others as a result?

I’ll try to answer your question.

Even free speech absolutists support laws against direct threats and attempts to incite physical harm
against an individual. These are rightly treated as assault and to call them “opinion” or “speech” is a category error. But placing censorship alongside assault laws and treating them as interchangeable is another category error. Abolishing section 18C in no way opens the path to violence; laws against threats and incitement were there long before the Racial Discrimination Act was ever introduced.

When it comes to intolerance - that’s an aspect of human nature. Humans aren’t about “good and evil”: it’s more like tribalism vs empathy. We can see those traits elsewhere in our evolutionary line: chimpanzees can be remarkably compassionate towards hurt and injured members of their own tribe, but they will beat to death members of other tribes for no apparent reason at all. Empathy is always good. Tribalism can channel into patriotism, team sports, and constructive competition at its positive end, and racism, religious conflict, and misogyny in its darker moments.

You curb harm by encouraging empathy and understanding and contact between people. Multiculturalism is good for this. So is education (with the obvious exception of tribal institutions like faith schools). But you can’t have education without a contest of ideas. The mistake of censorship advocates is that they put “hate speech” (however they define it) on a pedestal as some all-powerful force that creates harm and violence. The speech that responds to hate speech is regarded in the opposite terms: so weak and powerless that only censorship can balance the scales.

The exact opposite is true, though. The reason racism and so on has been pushed to the fringe is that it lost the battle of ideas. The counter-speech was stronger, more sensible, more unifying than the hate-speech. Stopping the debate now and martyring the hater side in their hour of defeat is counter-productive in the extreme. Nothing does more for a hate speaker’s standing and esprit-d-corps than a dose of persecution from the state.

So, on the question of should “we” let people say what they like. Obviously we should, because the attempt to gag them is so counter-productive. The Weimar Republic was a morass of hate speech laws. The early forerunners of the Nazi movement were people who faced public censorship and grouped together to push back. Pushing filth out of sight only makes it fouler and stronger. We should be letting this stuff out in the sun where it can be exposed. This is an applied form of the “education” we all apparently support. Not just the education of the hate speakers, but of the public itself, which should be treated like adults, permitted to see the debate and make up its own mind.

Censorship infantilises, and de-educates. It’s not an enabler of dignity, but of indignity. We have to believe that a state can liberate people from the “oppression” of hostile speech by using a tool which has contributed to every kind of state oppression in history. We have to believe that bad ideas can be defeated by treating them as all-powerful, and showing that we fear them. We have to believe that the historical changes in social norms will come to a halt and the populist banning of ideas will never come back to bite us.

With so much unreason in the censorship agenda it’s not surprising that GetUp and their fellow travellers seriously believe that opposing censorship equates to supporting the ideas being censored. That kind of mental incapacity will only get worse the longer we rely on the state to make our arguments for us and hide from our obligation to engage and debate. Censorship is a direct challenge to the process of educating ourselves out of racism.

As some have noted, there’s not much practically at stake in the fight over 18C. What is at stake for us though is whether or not we are a censorship-supporting party. That is a precedent and philosophical direction that is really going to matter in the future, because the challenges to free speech never stop.


@MarkG: I am reduced to mere, utter inchoate admiration. You have absolutely nailed the issues, in my humble opinion.

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@MarkG : That was very nicely put and I think it reflects a core party position on censorship.
I think your rant about would work nicely as a preamble for a core Censorship policy, that links out to each related area.
Want to take that somewhere MarkG?

In this context it is not necessarily a specific individual who is the target of the incitement. As far as I know, the Attorney-General was correct when he said there was no law against vilification or intimidation (as he wanted to define them in the exposure draft). Assault doesn’t quite work when you have a non-quantifiable group that may feel fear from unknown third parties.

That wasn’t actually the question. The core of the question was “how do we ensure that people don’t harm others as a result of what someone else says?”

I was not making an argument for censorship, but what I see is a very confronting point in our policy that doesn’t really offer much by way of an adequate alternative.

Section 18C is a failure, yes. Censorship is inappropriate, yes. But what was the aim of s 18C? It was to curb race-based violence. Arguably, it has failed — or it has gone too far and missed the mark of what the objective actually was.

I think the policy could use some kind of positive statement saying how better we could achieve the fulfilment of our obligations and the objectives of s 18C and Article 4 of the Convention.

I’m not convinced that common law protections are adequate. Nor am I convinced that censorship works.

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[quote=“Mozart, post:17, topic:330”]
Section 18C is a failure, yes. Censorship is inappropriate, yes. But what was the aim of s 18C? It was to curb race-based violence. Arguably, it has failed — or it has gone too far and missed the mark of what the objective actually was.

I think the policy could use some kind of positive statement saying how better we could achieve the fulfilment of our obligations and the objectives of s 18C and Article 4 of the Convention.[/quote]

Fair enough, I’m just not into the idea of “fixing” a censorship law. Canada just abolished its hate speech law because it was irredeemable. The speech laws in the UK and Europe have been horrific in their effects. Enough time and evidence has come along to suggest that it’s not just a series of failed implementations- that we’re really looking at a failed concept and we need to stop shifting the deckchairs.

Like I said, education and debate and mixing of people seem like the ideal alternatives. But if we have to have government involved there’s something to the idea of harmonizing the state anti-discrimination laws. We can oblige the UN and close the loopholes and simplify things for victims and ensure no infringement on speech. It seems like a good compromise.

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The image I have in my mind about this situation, is that things like racial discrimination, vilification or intimidation, are all things that occur where the parties involved are socially isolated from each other while being members of the same broader community. They feel threatened by the others difference from themselves and at least one side views the relationship as being adversarial.
Actual solutions to such situations are about making connections, building understanding, getting through the “storming and norming” phases of relationship/team building.
In contrast to this, the law is by by its very nature, adversarial. It draws lines in the sand. It separates with its rules. It is rigid and it does not build connections or understanding.
If you want people to be nice to each other, then find something they have in common and get them talking over a beer or a nice cup of tea, and maybe give them a common goal, in neutral territory, but whatever you do, do not set them up against each other in court over things they said about each other.

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Absolutely agreed on the education, debate and mixing of people approach, and totally behind the opposition to censorship.

I actually really like that summary. So some kind of pro-mingling policy might be appropriate.