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Freedom of speech versus freedom from discrimination

Opinion

Amid the storm about the Showdown banana incident, a confronting cartoon and an allegedly “angry, white male” senator, legal commentator Morry Bailes offers his view on the proposed change to Australia’s racial discrimination laws.

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Where does one begin with a sensible discussion about section 18C of the Racial Discrimination Act these days?

Perhaps with bananas being thrown by excited football fans, or white male senators complaining about being described as white, male and angry, or the frothy outrage expressed at the confronting comedy of a cartoonist?

Or perhaps the best way is by looking at the section itself.

We have, in our wisdom, permitted our Federal Parliament to enact a law making it unlawful to do an act, other than in private, that is reasonably likely to offend, insult, humiliate or intimidate a person or group, if the act is done because of race, colour or national or ethnic origin. Ever since its enactment, the section has had pretty poor publicity, and it seems there are few people now prepared to defend it in its current form.

What is our Federal Government’s stand?

Our Prime Minister says he is more concerned about the economy than dealing with the wash-up of section 18C, and while it ought to be amended it is not a “priority”. Perhaps in reality it’s just one of those issues that is in the too-hard basket, but some members of the new Parliament are unlikely to be so reticent in tackling the subject, so we can expect the 18C debate to continue.

Why is there all this controversy and excitement over a single section of an Act of Parliament? In short, this is a debate about what we are publicly allowed to say and not allowed to say; it’s about freedom of expression; it’s about freedom of speech.

In 1919, in the case of Schenck v United States Justice, Oliver Wendall Holmes Jr wrote the immortal words: “The most stringent protection of freedom of speech would not protect a man falsely shouting fire in a theatre and causing panic …”

Thus, we accept there are limits on freedom of speech. However, tellingly, Holmes’ interpretation of the first amendment was later overturned by the US Supreme Court in the 1969 case of Brandenburg v Ohio, when the court limited banned speech to that which may cause “imminent lawless action”, such as a riot.

With section 18C, we are a way away from the US position. Drawing from British history, the renowned 19th-century republican, atheist and parliamentarian Charles Bradlaugh said: “Better a thousandfold abuse of free speech than denial of free speech. The abuse dies in a day, but the denial stays for the life of the people, and entombs the hope of the race.”

While all that may seem a bit anachronistic and flamboyant in the 21st-century context, many in this debate agree with such sentiment.

Without drawing out the battlelines any further, we are able to point to voices of reason who counsel a way through this unnecessarily fraught subject.

Respected jurist Ronald Sackville has recently drawn attention to the difficulty of the current test in section 18C and its low bar. To many, the idea in Australian society that merely creating offence should be unlawful goes against the grain. Sackville says: “The balance at present (with s18C) is not what it should be.”

He advocates an objective test, to be determined by community standards. At present, the test is determined by how the act would affect a reasonable representative of the complainant group, whatever that is supposed to mean.

Senator David Leyonhjelm, who is campaigning for section 18c to be repealed, has lodged a racial discrimination complaint over an article that described him as an "angry, white male".

Senator David Leyonhjelm, who is campaigning for section 18C to be repealed, has lodged a racial discrimination complaint over an article that described him as an “angry, white male”.

As a white male, I’m not the least offended by a white male senator being called angry; in fact, I think it’s amusing. But am I reasonably representative?

Further, Sackville advocates that the standard itself ought to change to make unlawful only an act that degrades, intimidates, or incites hatred or contempt. Many may still argue that the restrictions such an amendment would place on our freedom of speech would be unacceptable, but we might be able to at least accept that offence and insult on whatever grounds should not get you up before a court.

I neither condone offence nor insult on racial grounds; indeed, I am implacably opposed to it. But I do treasure the right to allow citizens to speak freely.

We do ourselves a great disservice as a society utilising the Parliament to enforce the niceties of language. If you wish to be a rank racist and offend and insult, let society judge your actions rather than the courts.

Our banana-throwing friend has been dealt with just so. Those offended have shown extraordinary restraint, and have even extended the olive branch by offering to teach the banana thrower a thing or two about decorum, manners and appropriate conduct.

As to the rest of us, we don’t need a court to tell us that this person is misguided and offensive. The humility and embarrassment that she must now feel, underscored no doubt by the sensible nature of the response, is, I would suggest, enough.

As to Senator David Leyonhjelm’s angry white male complaint – yes, it highlights the stupidity of the current section, but really, could you just deal with it in Parliament, that body to which you have been elected?

And yes, I am still going to read Bill Leak’s cartoons, whether they offend me or not. I am delighted and confronted, as well as sometimes offended, by some of Australia’s most interesting social commentators, but I shall still read them.

To repeat the famed statement, often misattributed to Voltaire, but which was actually written by his biographer, Evelyn Beatrice Hall:

I disapprove of what you say, but I will defend to the death your right to say it.

I, for one, am prepared to be offended or insulted in order to preserve the right to that freedom for which many have died.

Meantime, can we please re-prioritise the section 18C amendment, because I can’t find many who don’t regard such a course of action as anything but sensible, and we can surely deal with economy at the same time – or is that too much to ask?

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, treasurer of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

His column appears on InDaily every second Thursday.

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