A Conservative’s View of Section 18C

September 8, 2016 by Geoff Bloch
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On 5 September, 2016 on this site, Australia’s Federal Shadow Attorney-General Mark Dreyfus QC wrote an article in praise of section 18C of the Racial Discrimination Act which makes it unlawful to offend, insult, humiliate or intimidate another person or a group of people because of their race, colour or national or ethnic origin.Dreyfus failed to address my main objection to section 18C.

Geoff Bloch

Geoff Bloch

Many Australians, especially those of us who lament the progressive decline in the quality of political discourse in this country, do not want the Government and the Judiciary to be the moral arbiters of how we should speak and relate to each other. Instead, we have more faith in the good sense of our fellow Australians than we have in our politicians and judges and would therefore prefer that our social conventions, rather than laws and regulations, set the parameters for such a fundamental right as the right to speak and communicate freely.

The Government’s role should be limited to helping us only where we cannot help ourselves and no more. Only Government can maintain an army and a police force, build roads and provide other fundamentally important public services. But passing laws regulating how we speak to each other? Surely that is a matter best left to us. Do we really need to be infantilised by our Government and warned against offending and insulting each other under threat of being taken to court?

Dreyfus referred to the current initiative by members of the Government and the cross benches to modify section 18C by removing the words “offend” and “insult” from the section (the words “humiliate” and “intimidate” would be retained). What is proposed is a very modest reform indeed. I would also hope that the applicable legal test as to what constitutes acts which contravene the section will also be modified. That test is currently based on the effect objectionable acts are likely to have on the sensibilities of a reasonable member of the offended class rather than of a reasonable member of the general Australian community. It is unsatisfactory that an offensive or insulting epithet or formula of words may be unobjectionable if directed to one group of persons but may be actionable if directed to another. Justice Sackville of the Federal Court of Australia has recently agreed that the test should be changed in this way.

Australia’s Jewish communal leadership agrees with Dreyfus that section 18C should not be modified. I believe they are wrong. Their primary objection to the proposed modification of the section is, understandably, based on the desire to prevent hateful Holocaust denial.

Many decent people who abhor Holocaust denial nevertheless consider the section, as presently enacted, to be an illiberal intrusion on our right to free speech. Professor Michael Berenbaum is the Professor of Jewish Studies at the American University in Los Angeles, director of the Los Angeles Holocaust Museum and the person in charge of the Spielberg archive which he established (he was selected by Steven Spielberg). He was also intimately involved in establishing the renowned Holocaust Museum in Washington. Professor Berenbaum is a man who has spent most of his adult life studying and lecturing on the Holocaust.

Professor Berenbaum recently agreed with me that it is far preferable that Holocaust deniers not be silenced but instead out themselves, discredit themselves and expose their own antisemitism so that they can be judged in the court of public opinion. He opposes invoking illiberal laws which regulate what can and cannot be said or written in a free society.

Many in the Islamic community share the Jewish communal leadership’s view that the section should not be modified. While the Jewish community’s rationale for retaining the section might be considered laudable, the Islamic community’s objection is primarily calculated to insulate sections of that community from legitimate critical comment. It is therefore somewhat ironic that both communities are bracketed together as fellow travellers on the subject and that their respective positions are treated as morally equivalent. For example, senator Nick Xenophon justified his opposition to modifying the section on the fact that “the Jewish and Arab communities” are of one mind on the issue.

Dreyfus did address a number of matters and reached conclusions with which I disagree –

  1. Dreyfus is wrong that “section 18C… has only recently become contentious…. for no obvious reason.” The Bolt case and, more recently, the case involving the unobjectionable Facebook posts of three students at the Queensland University of Technology, have galvanised wide community objection to the section. One wonders whether the complainants’ real agenda in such cases has more to do with silencing unwanted opinion than with redressing any genuine hurt.
  1. Dreyfus is wrong in suggesting that when Attorney-General George Brandis told the Senate that “people have a right to be bigots” Brandis was “seeking to justify giving a green light to racist hate speech.” To the contrary, by correctly characterising those indulging in offensive or insulting acts as bigots, Brandis left no doubt that he disapproved of their views. Brandis was simply expressing, perhaps in a politically incorrect way, the distinction between expressing objectionable views and the right in a free society to do so.
  1. Dreyfus is wrong in concluding that “the Abbott Government eventually saw sense and abandoned its divisive proposal (to reform section 18C)” because it came to agree with the Labor party’s support of the section. The Abbott Government regrettably did abandon its proposal to reform section 18C, but not because it came to support the Labor party’s views on the section. It abandoned the proposal as they were “a needless complication” in the Government’s relationship with the Australian Muslim community. Significantly, Tony Abbott has recently expressed his regret at having abandoned the reform.
  1. Dreyfus is wrong in justifying section 18C on the basis that we already have defamation laws which constrain free speech. There should indeed be laws which redress monetary or commercial loss unduly caused by objectionable behaviour in all its forms, whether that be a breach of consumer protection law, contract law, or tort law which includes defamatory (false) speech or other publication. Yes, the false spoken word can indeed cause monetary loss and, in that sense, the false spoken word is no different from any other kind of actionable wrong. But there is a huge distinction to be drawn between monetary loss and hurt feelings. The former justifies a law suit. The latter does not. There is also a huge distinction be drawn in that the former always involves falsity whereas hurting someone’s feelings often involves the mere expression of an opinion albeit offensive or insulting.
  1. Dreyfus’ statement that “it is Labor’s unequivocal view that racism has no place in modern Australia” is a statement of the obvious as it is a sentiment shared by all Australians of goodwill. The statement does not, however, lead to the inevitable conclusion that section 18C is a logical imperative.

Those who support the modest modification of section 18C by the deletion of the words “offend” and “insult” should not be painted as supporting racism. To do so is intellectually shallow. The real question which ought to be grappled with is the point Dreyfus did not address: Why is it the Government’s business to buy into this issue at all? Ever expanding government and its intrusion into almost every aspect of our lives by imposing laws and regulations as the cure for every ill in our society, is not necessarily a good thing.

In the case of persons who offend or insult others, I believe they ought to be tried in the court of public opinion rather than in a court of law.

Geoff Bloch is a member of the Victorian Bar


13 Responses to “A Conservative’s View of Section 18C”
  1. Michael Burd says:

    You represent the Muslim commuty well Henry Salam a Lakum

  2. David Adler says:

    The foundational democratic principle often stated as “I might disagree with what you say but will fight for your right to say it” is also a foundation of Jewish thinking and development for millennia.

    We of course do not condone physical harm to property or people.

    Government does NOT have a role in what we say, think or how we express an opinion, but does have a role in regulating adverse behaviours.

  3. Henry Herzog says:

    Not one mention, Geoff Bloch, of section 18D and it’s importance in relation to section 18C, to protect your freedom to insult, offend etc., on grounds of race. If Bloch was honest he would have included the exemptions to 18C in 18D;such as, if it’s for scientific or artistic purposes or is in genuine to public interest. It’s very sad to see a Jew argue that it’s acceptable to insult and offend Jews, just because they’re Jews.

    • Geoff Bloch says:

      There is nothing in my article to suggest that “it’s acceptable to insult and offend Jews, just because they’re Jews.” To the contrary, I have acknowledged that insulting and offensive acts are odious and should be tried in the court of public opinion. You are erroneously conflating two issues. It is one thing to acknowledge a person’s right to act in a way that some might find insulting and offensive. It is quite another to endorse such behaviour.
      I deliberately made no mention of the limited carve outs to be found in section 18D because I oppose section 18C. If I were to embrace the carve outs as conferring adequate protection, I would necessarily be endorsing what is to be found in section 18C. Section 18D was therefore not germane to the points I hope I made.

      • Henry Herzog says:

        So the reason why you don’t mention the provisions of 18D is because by doing so you’d be endorsing 18C, to which you so strongly object. That’s certainly a subjective judgment on your part, and isn’t that a reason you object to 18C. Nor do you really explain why you so object to 18C. Is it because you’re limited to insult and offend people simply because they belong to a particular race or religion? And if you need to do so because you want to engage in legitimate criticism, then you have 18D to protect your right. And if a Holocaust denier has arguments based on actual fact, unlike Bolt, then their free speech is protected by 18D. I suspect you didn’t inform Professor Berenbaum of that. Of course mentioning 18D is an inconvenience for you because then you’ll be endorsing 18C. In other words, you object to a law that limits your free speech, while you ignore an associated law that protects your freedom of speech. Where’s the logical reasoning in that? As you should also know, there are many defamation cases based on false claims and made purely for financial rewards. I recall Jeff Kennett once threatening a newspaper with defamation and remarking that it would pay for his new shed. Lets be honest here Mr Bloch; your objection has little to do with logic and is driven only by your right-wing ideology.

        • Henry Herzog says:

          Allow me to explain what I meant by saying Mr Block’s comment about not including 18D in his article was subjective. He had a particular agenda to can 18C, but 18D got in his way. So to further his argument, Bloch chose to ignore 18D. If not subjective, certainly contrived, and intellectually dishonest.

  4. Eleonora Shifrin says:

    The Government trying to impose moral imperatives by way of legislation makes the society look more and more like a kindergarten. Very soon one will be punished because somebody very “sensitive” will complain that “he gave me an angry look”. Freedom of speech is being sacrificed for the sake of senseless and unqualified equality. You first allow in members of groups seeking to destroy your society and its values by using your freedoms. Then they become a minority and are protected as such. Then they start reducing your freedoms in order to limit your rights to protect your society from them. Before you know, you cannot recognize your society any more.

  5. michael Burd says:

    Whilst I agree we Jews need to be aware and concerned about Holocaust denial by the anti- Semites the fact is currently the biggest threat to Jews now is Islam although some prefer to dress it up as ‘Extremist Islam’ or Radical Islam to be PC.

    So we need to be able to be able to have an open and public conversation about the threat of Islam without the threat of legal action that currently prevents this from happening. So far Josh Frydenberg MP has been the only Jewish Politician or Representatives willing to say it as it is that there is a problem within “Islam’ and look at the Brouhah it caused.

    This is a terrific article very well thought out in my view Dreyfus mainly seeks to protect any such criticism of Islam obviously because of his largely Muslim constituency.

    The 18 C argument is not going to go away it may be an idea for the Jewish communal leadership to include some input from Mr. Bloch.

    • Henry Herzog says:

      Did any Muslims lodge complains with the Human Rights Commination claiming Josh Frydenberg had breached 18C by saying that? NO. So how, Mr Burd, is 18C impeding Frydenberg’s and yours, in particular, incessant freedom to insult and offend Muslims, limiting your free speech? And what other freedoms do you need to antagonise and demonise Muslims!

  6. Danny Kidron says:

    In addition: a democracy protects the rights of its citizens but those rights do not include the right to not be offended or insulted.

    • Rami Reed says:

      No, you are wrong. Citizens decide what are rights in a democracy and there is no reason why democracy should not include the right not to be offended or insulted if citizens decide that these two concepts should be included.

      • Henry Herzog says:

        No Rami, you are wrong. We elect representatives to parliament to represent and speech up for us, That’s what democracy is all about. Otherwise we’d have a plebiscite for every new bill brought before parliament, don’t you know. So if parliament decides that insulting and offending people on grounds of race is an offence, that’s democracy.

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