Free speech: would removing Section 18C really give us the right to be bigots?

Despite previously saying we all have the right to be bigots, Attorney-General George Brandis now says reform of Section 18C of the Racial Discrimination Act is no longer on the government’s agenda.

However, there are several senators – some new, some returning – who beg to differ. David Leyonhjelm, Bob Day, Derryn Hinch and One Nation’s Malcolm Roberts all say they will push for changes to Section 18C.

What’s all the fuss about?

So, what does Section 18C say?

The first thing to note is that it refers to a public (not private) act, including speech “that is likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people” and “the act is done because of the race, colour or national or ethnic origin” of the person or persons.

Therefore, it prohibits some speech, made in public, based on certain features of a person’s identity.

Section 18C is limited in scope, and it would thus be wrong to claim that free speech carte blanche is under threat. It is, after all, a section of the Racial Discrimination Act, not “The Stop Anyone Being Offensive To Others Act”.

Offensive speech is alive and well in Australia

Roberts should be well aware of Section 18C’s limits because he has been free to make a number of deeply offensive remarks recently. He suggested climate change is a conspiracy among global bankers, who also manipulate the United Nations in an attempt to create a socialist world order.

Let’s leave aside the implausible suggestion that bankers are in fact the revolutionary vanguard of the proletariat. Also ignore the suspicious similarity that such talk has to long-standing pernicious ideas about a Jewish banking conspiracy to dominate the world.

Instead, let’s focus on the suggestion that global warming is a huge conspiracy. Tied up in this claim is the proposition that most scientists working in this area are deeply dishonest. Roberts is claiming they will fudge the data, deceive their employers and lie to the government and the general population – all presumably to further their own interests.

People accused of such activities will rightly be offended, but they will get no help from Section 18C because Roberts' statements are about the scientists’ moral character rather than their race or colour. Libel laws are more of a threat to Roberts in this instance than Section 18C.

Another example of free expression that offended many people was Bill Leak’s cartoon in The Australian last week. The cartoon differs from Roberts’ comments because it has very explicit racial content.

Even in this instance, however, the freedom to offend is secure. Section 18D of the act says “Section 18C does not render unlawful anything said or done reasonably and in good faith” or that is “held for any academic, artistic or scientific purpose, or any other genuine purpose in the public interest” or made in “a fair and accurate report” or “is an expression of a genuine belief held by the person making the comment”.

So, there are a great many exemptions to Section 18C that allow comments that might offend, insult, humiliate and even intimidate a person on the grounds of race, colour, national or ethnic origin. And we therefore don’t need to change it in order to be bigots.

The Leyonhjelm/Roberts alternative

Both Leyonhjelm and Roberts have offered alternative approaches to speech regulation.

Leyonhjelm says he intends to introduce a bill to remove Section 18C and other relevant sections of the act. He said:

Free speech is free speech, there is no qualification to it.

Roberts concurred, and rather convolutedly said:

Free speech is free speech; anything less than that is not free speech.

He also claimed Section 18C was:

All done, as far as I understand it, to nobble Andrew Bolt, and Julia Gillard did that.

This is a very bizarre claim, given the act has been around since 1975.

Both senators are very clear that free speech means unfettered speech. This is important. It suggests not only are they opposed to Section 18C, including the part that prevents intimidating a person because of the colour of her skin, but that all limits on speech have to go. Child porn? Go ahead. Revealing state secrets? Reveal away. Blackmail? Go for your life. I could go on, but you get the drift.

The vision offered by Leyonhjelm and Roberts is dangerous, misguided and extreme.

Further reading: Does racism make us sick?