Everything You Need to Know About 18C
On Monday this week – which, incidentally, was World Harmony Day – Prime Minister Malcolm Turnbull announced that the government would be introducing changes to Australia’s race hate-speech laws.
The move came after more than a year of pressure from libertarian and conservative politicians who consider Section 18C of the Racial Discrimination Act a danger to free speech. Or as the Daily Telegraph so very fairly put it, “The Prime Minister … (is) saving journalists, cartoonists and everyday Australians from the threat of prosecution for insulting, offending or humiliating people based on their race or ethnicity.”
But for those of us who are more inclined to tune into Married at First Sight on a Monday than Q&A, there begs a bigger question than whether or not Jesse will ever find true love. What the hell is 18C, and why should we give care?
What is 18C?
No, it’s not just a bra size – Section 18C is part of the Racial Discrimination Act of 1975, and it makes it unlawful to offend, insult, humiliate or intimidate someone on the basis of their race, colour or national or ethnic origin in public. Pursuant to this law, you can’t call a person names, publicise unfair assumptions about them or threaten to beat them up just because you feel like being a racist prick.
Section 18C already comes with a whole bunch of exemptions, including publishing “a fair and accurate report” of “fair comment”, as well as “in the performance of an artistic work”. So basically, if you’re being satirical or arty, or you’re making a good point, you are likely to have any case against you dropped.
This now-contentious snippet of the Racial Discrimination Act was added in 1995 when Federal Parliament recognised that being physically disadvantaged (such as being denied a job, promotion or a lease due to your race) wasn’t the only problem associated with racism; the emotional impact of hate speech mattered too. Specifically, recipients of inflammatory comments based on race are likely to feel sad, hurt, angry and intimidated, and those feelings can manifest in negative behaviour.
Since the 1995 amendments, anyone who feels that they have been a victim of a breach of S18C can lodge a complaint with the Human Rights Commission. From there, the Commission will either dismiss the complaint or initiate some sort of conciliation process to resolve everything. Only if the case cannot be settled will it go to court, and since 2014, less than 5 per cent of complaints have actually made it that far.
What changes have been proposed?
Politicians like Pauline Hanson and commentators like Andrew Bolt (who was found to have violated s18C himself in 2011) are of the opinion that the entire section should be repealed (meaning revoked). Pre-2013 election, Tony Abbott actually promised to do so if he came to power, but in 2014, once he was Prime Minister, he backed down from the huge changes he’d proposed due to the likelihood of them being blocked by the Senate.
Malcolm Turnbull’s move this week hasn’t quite been so drastic: instead of repealing the entire section, he wants to cut the current words “offend, insult and humiliate” and replace them with “harass and intimidate”. He would also grant the Australian Human Rights Commission the power to reject frivolous claims at an earlier stage than is currently possible.
Why though? What’s wrong with the current legislation?
Those in support of the reform have largely centred their argument on a sudden and rather selective desire for free speech. They believe S18C is an ongoing danger that stifles one of our most basic civil rights by impinging on our freedom to say, write and publish things that are racist or xenophobic. In the words of Reverend Peter Kurti,“We don’t want to be told what not to say.”
Also, according to Senator George Brandis, “People are fed up to the back teeth with political correctness.” He reckons we Aussies shouldn’t be the “subject of government regulation or some intrusive moral guardian at the Human Rights Commission who thinks that it’s their god given right — they probably don’t believe in God — but it’s their right to tell other Australians what they’re allowed to think and say”.
In Parliament, Malcolm Turnbull insisted that his proposed amendments balanced protecting people from hate speech with defending and enabling our right to free speech. In response, Bill Shorten helpfully pointed out that if the Coalition really cared so much about freedom of speech, why then do they ignore the countless other Australian laws and policies that severely limit it? (The muzzling of asylum seeker whistleblowers is the first that springs to mind…)
So, why is it in the news?
The majority of the time, incidents brought before the court tend to go unnoticed by the public. This is probably because most of us don’t get indignant when people are found to have been racist. It’s more just when the alleged perpetrators are high profile, or when public outrage is evoked by the media linking an incident to a “leftist” push for increased political correctness, that incidents are thrust into the spotlight.
This has been the case three times in the past few years.
In 2011, Andrew Bolt was found to be in breach of S18C the Racial Discrimination Act for several articles he had written two years previously that implied light-skinned people who identified as Aboriginal only did so for personal gain. Bolt was “truly shocked” at the outcome of his case, calling it “a sad day for free speech”.
In 2013, an action was brought against a group of QUT students when they posted comments on Facebook in response to their university having a computer lab exclusively for Indigenous Australian students. In 2016, one student’s comment – “I wonder where the white supremacist computer lab is” — was found to be a “poor attempt at humour” but not unlawful; and another – “QUT stopping segregation with segregation?” – was found not likely to offend, insult, humiliate or intimidate someone. The court ended up dismissing the case against the students, and the subsequent appeal was denied.
In 2016, The Australian published a cartoon by the now-deceased Bill Leak. It showed a drunken Aboriginal father unable to remember the name of his son, and was drawn in response to a Four Corners report into Don Dale’s Detention Centre and its systematic abuse of young Indigenous people. A complaint was lodged under 18C by three people who claimed they’d experienced racial hatred due to the cartoon, but they later dropped the charges, allegedly on account of being bullied by The Australian.
Why should 18C be left as it is?
Firstly, the fact that both the latter cases were dismissed strongly suggests that the standard for complaints lodged under 18C to actually result in legal action is already quite high – something the courts have consistently held anyway. People are only protected from hate speech that causes “profound and serious effects, not to be likened to mere slights”.
Furthermore, even when a complaint is upheld, no one is ever convicted or imprisoned, because breaching section 18C is not a crime – it’s just a civil offence. Instead, damages are awarded, but even that is rare.
Secondly, the protection the act currently offers is necessary. You only have to search this week’s trending ironic hashtag #FreedomOfSpeech to get a sickening insight into the horror that is racial vilification in Australia.
To give you a better idea of the rights the current wording of the act protects, in a brilliantly researched paper published in the UNSW Law Journal, some cases where complaints under Section 18C were successful were tabled.
In a 2008 case, a man verbally abused his Aboriginal neighbour in public, calling her and her family names such as “niggers”, “coons”, “black mole”, “black bastards” and “lying black mole cunt”.
Another was centred on an online newspaper article and subsequent reader comments about a car accident that saw four young Aboriginal boys die. Readers commented “I would use these scum as land fill” and called the boys “criminal trash”.
A 2005 case looked at a complaint from Chinese woman who worked at a butcher as a cashier. She was continually insulted about her race by another employee, who, among other things, told her to, “Fuck off Ching Chong go back home.”
Is this really the type of free speech we want to champion and protect?
Freedom of speech is only a right for as long as it doesn’t encroach on someone else’s freedom to not be discriminated against. A distinction needs to be made between the intellectual diversity that comes from a population holding and expressing a range of evidence-based perspectives, and the legitimisation of hatred that comes with considering racial vilification part of our right to express our own views. Because hate speech is not, and should be not be legally considered, free speech.
This is not just my opinion – it’s a fundamental principle of international law.
So, what next?
So far, with Labor, the Greens and Senate crossbenchers giving the proposal to reword Section 18C the thumbs down, it seems unlikely the Turnbull government’s dreams of watering our anti-racial vilification laws down will come to fruition. The fate of the overhaul currently rests with the
Nick Xenophon team, whose three Senators support the proposal to change how the Human Rights Commission can process complaints, but not the rewording of the Section.
This hasn’t stopped conservatives within the government holding onto their hopes.
Liberal senator James Paterson told AM on Wednesday that he’s is interested in the political benefits changing s18C might have with regards to addressing concerns in the community that the law threatens free speech and liberal democracy.
“That’s a phenomenon very strong in Queensland and it’s not a coincidence that’s a state where One Nation is doing very well,” he said. “We’ve got to get those votes back home to us if they previously voted for us and this is one way to do that.”
But is pandering to the far right in order to win back their votes really the right way to go about reengaging the parts of our community that have become disenchanted with mainstream politics? 18C does not impose unreasonable restrictions, and reducing the conditions under which people can seek protection from hate speech is only going to increase and legitimise the proliferation of racism in Australia – already a huge problem in our culturally diverse country.
Not only that, but in its worst form, widespread hate speech often precedes incitement to violence. In fact, the International Criminal Tribunal for Rwanda recognised this relationship between the two and acknowledged hate speech as a potential precursor and catalyst for genocide. One only has to look to the mass killings in Srebrenica and during the Holocaust for further examples, and even Australia’s own Stolen Generation.
Everyone deserves to live a life free from discrimination on the basis of race, and this right is one that should continue to be enshrined our legislation. While Section 18C can’t fix racism in Australia, giving people a licence to insult, offend and humiliate someone based on their background or skin colour is definitely a step in the wrong direction.
Cover by Kayla Sutton