Section 18C of the Racial Discrimination Act

Here is the wikipedia article on section 18C of the Racial Discrimination Act. While the article is not perfect (I have noticed a contradiction there already) it makes a good starting point to familiarise oneself with what this thread is going to be talking about. In particular the article includes what exactly 18C says, what defences for it are allowed in 18D, some case law examples, some criticisms, and some details on controversies surrounding it.

Of particular note is that 1(a) and 1(b) of 18C are NOT connected in regards to the nature of the act. It is possible under the law as written for acts with no racial character to them to qualify if they were done for the criteria in 1(b). It really is a horribly imprecise bit of law and deserving of the thoughtcrime criticisms people have directed at it.

Here is the wikipedia article on hate speech law in the United States. This is extremely relevant because the US is a country that has the sort of constitutional protection for free speech that is current PPAU policy. The Supreme Court over there has consistently ruled that hate speech is protected speech, meaning that 18C would be ruled invalid under such protection. The latest ruling on the subject was in 2017 and was unanimous. The comments given by the court are worth reading.

In case anyone is wondering, the legal principle of implied repeal is the practical reason why constitutional protection is necessary instead of mere legislation. That principle is the reason why New Zealanders don’t have the right to free speech, regardless of what their Bill of Rights Act says.

Current PPAU policy repeatedly and pervasively reaffirms commitment to upholding freedom of speech and being against the notion of hate speech laws. This can be seen in:

  • The freedom of speech policy preamble, paragraphs 2, 3, 4, 6
  • The bill of rights policy preamble, paragraph 2
  • The bill of rights policy points on thought and belief, points 1, 1.1
  • The bill of rights policy points on communication and expression, points 1, 1.4, 1.5

The position statement that the 2020 Pirate Congress voted to adopt on this subject indicates support for hate speech laws in no less than 5 separate places. This goes against PPAU policy as mentioned above and if such a position is adopted consistently it would represent a massive shift in policy on the subject. Would almost certainly scare away some current voters too.

Also, that position statement broadly places PPAU in agreement with the Turnbull government’s attempt to amend 18C in 2017 as mentioned in the second paragraph of this article. An attempt that was opposed by Labor and the Greens. So even if we stick to that statement, we can still expect criticism to come from that direction about it.

This is the Guardian article published prior to the 2019 election that mentioned PPAU policy to repeal 18C out of context. Given all of the above, as long as we retain policy to uphold freedom of speech, or even if we abandon that and merely seek to amend 18C as per the above position statement, we can still expect similar out of context statements in the future.

That’s why making position statements on the run is a dumb thing to do, by the way.

Voting numbers for PPAU in 2013, 2016, and 2019 do not support the notion of the policy costing us votes either. Voter numbers for PPAU in 2019 were at record highs across the board, even disregarding WA, despite the out of context Guardian article. There will always be voters from all directions who don’t want to vote Pirate for one reason or another and compromising core party values to chase some of them is foolish.

However, it does turn out that I was wrong about my assumption that intimidation, harassment, etc, were already covered by existing law. They are covered sufficiently in NSW which is all I had time to look up during Congress, and WA certainly has very comprehensive law on the subject, but some other places not so much. The main problem is that such things fall under the crime of stalking in several states which usually requires either multiple instances or a single protracted instance. Details for each state and territory can be found in their respective criminal codes except for in NSW, which these days has a separate Crimes (Domestic and Personal Violence) Act 2007.

Given all of the above, I’d suggest a reasonable course of action to be policy to partially repeal 18C (the hate speech parts), tighten up the connection between 1(a) and 1(b) to remove the thoughtcrime, and predicate full repeal only upon sufficient statutory protection against general intimidation, harassment, etc at the state level since state level criminal codes is where those sorts of crimes are generally placed. That may be too detailed though, and in any case is roughly equivalent to replacing the phrase “pre-existing common law protections” with “pre-existing common and statutory law protections” in the current policy point on 18C.

We really need to get used to advocating for free speech in the face of unfair opposition. And the position statement as voted on by Congress, assuming it passes the member vote, really needs to be dropped. If we are to have a statement on the subject it needs to actually align with PPAU policy and core values.

So, thoughts? Suggestions? Yay on freedom of speech? Nay on freedom of speech? Something out of left field that I’ve missed entirely? I haven’t conducted any review of past threads on this topic, so there’s probably something there.

I’m going to start by reiterating my comments:

  • 18C is a very strong tribal marker right now for much of the Left
  • bits of it are incompatible with our Bill of Rights policy (specifically “offend”, “insult”)
  • the other items should be prohibitable regardless of motive

I believe these three dot points are agreed upon by everybody in the discussion so far.

I don’t think I’ll find much disagreement that threading the needle between “absolute freedom of expressing an opinion” and “preventing people propagating hatred” is a Gnarly Problem. But that’s more a discussion about deplatforming and semi-public spaces/forums.

My preference is to spend the time this year developing policy outlining the basis for a combined anti-discrimination act, replacing the existing ones, which abstracts across both ‘actions’ and ‘classes’ and is consistent with our Bill of Rights positions on speech, association, and discrimination.

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So? The remit of the Pirate Party is to advocate for core party values, come up with evidence based policy informed by those core values, and persuade people to vote for us based around those policies and values so as to hopefully have government enact them one day. Where exactly does caring about tribal markers that contradict our core values fit in to any of that?

The particularly silly part is that I’ve already shown, with sources, that even the terrible position statement voted on at this year’s Congress will not do anything to stop PPAU being criticised for 18C.

I have to disagree here, at least a little. Humiliating someone is not necessarily something that should be prohibited. Extreme humiliation, sure, but if it’s all humiliation then it can have the same problems as prohibiting offensiveness does. Harassment would be more precise.

Again, have to disagree. I have already quite clearly demonstrated, again with sources, that if we are to advocate for freedom of speech and freedom of expression then people must be free to be offensive. That is, to express that they hate someone. If you think it’s a gnarly problem, you don’t believe in freedom of speech.

As we discussed between Congress sessions, you know that any sensible anti-discrimination act will be decried by the Left since it will prohibit affirmative action. Kinda undermines your concern about tribalism.