Shadow Attorney-General’s take on Section 18c

September 5, 2016 by Mark Dreyfus
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For over 20 years, since the Racial Discrimination Act was enacted by the Keating Government, section 18C has embodied our nation’s condemnation of racial vilification and protected our citizens and our society from the poisonous effects of hate speech…writes Australia’s Federal Shadow Attorney-General Mark Dreyfus.

It has been used against Holocaust denial and serious cases of racist abuse of members of many different communities, including the Jewish community. At the same time its sister provision, section 18D, has operated to protect free speech.

Mark Dreyfus

Mark Dreyfus

Section 18C, having operated well for those 20 years, has only recently become contentious and for no obvious reason. During the last term of the Liberal Government, then Prime Minster Tony Abbott launched a concerted attack on the prohibition on racist hate speech in section 18C, claiming that these protections were somehow a threat to intellectual freedom in Australia. Seeking to justify giving a green light to racist hate speech, Attorney-General George Brandis infamously declared to the Senate that ‘people have a right to be bigots, you know’.

Labor stood with thousands of individuals, legal experts and organisations, as well as 155 community groups from across our nation, who rallied against this reckless ideological attack on section 18C. The Abbott Government eventually saw sense and abandoned its divisive proposal.

It is of great concern to me and to the Labor Party that right wing crossbench Senators such as Bob Day and government MPs including Cory Bernardi are now once again campaigning to pass laws that will water down our long-standing protections against racist hate speech. It is no longer a fringe campaign – at last count Senator Bernardi had gathered 20 signatures from coalition and crossbench senators in support of watering down protections against hate speech.

Labor is a staunch supporter of free speech – but free speech is not and never could be absolute. Freedom of speech is a value that, like many democratic values, must always be counterbalanced against competing values.  In Australia, as in all western democracies, there are numerous ways in which freedom of speech has always been constrained to benefit our community.  For example, our defamation laws allow individuals to sue to protect their reputation, our consumer protection laws make it unlawful to say things that are misleading or deceptive in trade and commerce, our criminal laws have long outlawed words that incite violence, and our counter-terrorism laws have recently expanded the scope of those criminal prohibitions to make criminal statements that promote terrorism. The federal Parliament itself maintains numerous restrictions on what can be said by members during debates on matters of policy.

Of course, the constraints imposed by section 18C are not nearly as strong as those I have just mentioned. Section 18C does not render racist hate speech criminal. In almost all cases it does not even lead to civil litigation – most section 18C complaints are settled to the satisfaction of both parties through conciliation. Often, complainants want nothing more than an acknowledgment or an apology.

And opponents of section 18C would do well to pay more attention to its sister provision, section 18D, which sets out a number of exemptions for political speech or when a particular comment is made in good faith or in the public interest. Looking at Section 18C on its own outside of this context is senseless.

Australia is a multicultural society, and section 18C was introduced to help to ensure that the dignity of all our citizens was respected, while section 18D ensured that freedom of speech was also protected.  The importance of section 18C in upholding ‘the dignity of the individual’, including ‘the most disadvantaged in our society’, was demonstrated by the overwhelming response of the Australian community, and particularly from the dozens of ethnic communities, who were united in their defence of section 18C against the attack by Tony Abbott and Senator Brandis in the last term of this government.

It is of deep concern to Labor that after declaring that changes to section 18C were ‘off the table’, last week Mr Turnbull backed away from that commitment, saying only that weakening section 18C was ‘not a priority’ and praising those attacking section 18C for putting forward ‘worthy arguments’. In contrast to Mr Turnbull’s glaring weakness on this issue, it is Labor’s unequivocal view that racism has no place in modern Australia, and the Government should be setting an example by standing up against bigotry, not placating those who believe that our political debate will somehow be improved by changing our laws to permit public statements that are likely to offend or insult people on the basis of their race.

Labor introduced the protections against racial hate speech in Section 18C over twenty years ago, and we will continue to fight for those protections today.

Mark Dreyfus QC is the Shadow Attorney-General, Shadow Minister for National Security and Federal Labor Member for Isaacs 




7 Responses to “Shadow Attorney-General’s take on Section 18c”
  1. michael Burd says:

    I suspect Dreyfus in keeping 18 C as it is trying to protect his Muslim constituency from any legitimate criticism .

    • Henry Herzog says:

      Seems Michael Burd hasn’t heard that section 18C also protects members of the Jewish community from racial abuse by Holocaust deniers, and believes Jews are immune to racial abuse. Or perhaps Burd thinks it’s more important to be free to vilify Muslims, than to protect Holocaust survivors from abuse by deniers. And if it’s “legitimate criticism”, then you’ve got 18D to protect your precious freedom to offend and insult on grounds of race.

    • Henry Herzog says:

      Noo! Would you like me to change something in this.

  2. Henry Herzog says:

    Andrew Bolt was found guilty of breaching section 18C of the Racial Discrimination Act because he used factious misinformation in his nasty attacks on fair skinned Aborigines. If his articles were based on fact and were in genuine public interest, Bolt would have got off.
    The only serious issue with section 18C is that people like you categorize free speech as being free to insult and offend on grounds of race. Winter’s problem is that he thinks he’s white.

  3. Baron Revelman says:

    Mr Dreyfus states that 18C “has only recently become contentious and for no obvious reason”. I wonder would Mr Dreyfus maintain that view if one of his children were in the deplorable situation 2 QUT students now find themselves. All because someone was “offended”. He further states that 18D “has operated to protect free speech”. I would once again draw Mr Dreyfus’ attention to the same QUT case, which is attempting to convince us that the innocuous comment posted on FaceBook was racist. Mr Dreyfus, you haven’t convinced me.

    • Henry Herzog says:

      What is the problem here? The white students were exonerated. Anyone accused of breaching whatever law of the land needs to mount a defence and go to great expense in doing so. And if totally innocence of the alleged breach they would go through awful heartache and trauma. But that’s the way the system works.

  4. Paul Winter says:

    Sorry, Mark, 18C is being abused.

    It is properly used to expose and punish Holocaust deniers. It is abused when Andrew Bolt is fined not for what he said but what might be inferred from his comments. And it is shockingly abused against university students who object to reverse discrimination on social media.

    Neither 18C, not 20D in NSW, is worth anything when Hizb-uo-Tahrir’s Ismail al-Wahwah publicly incites against Jews and our Attorney-General “friend” in NSW fails to get charges laid while our fearless Jewish leadership – you included – chickens out on making a complain under 18C.

    The 18C issue is serious. Its well past time to place principles ahead of politics.

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