LATE last year in these columns, I complained that it was very difficult in Australia to have a debate about freedom of speech because those who wanted to restrict that freedom would hardly ever break cover and make their views public.
Not for the first time, you need to be careful what you wish for. The federal government’s campaign promise to amend section 18C of the Commonwealth Racial Discrimination Act has unleashed some strong opposition from ethnic groups, including the Hellenic Council, the Chinese Australian Forum, the Arab Council and the Council of Australian Jewry.
It is worth recalling just what section 18C actually makes unlawful. It refers to conduct that “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.
It is true that an exemption is provided for expressions of opinion on matters of public interest - but this is completely undermined by the requirement that these statements must be made “reasonably”.
There is room for argument as to whether the prohibition on intimidation should be retained, although this could normally be dealt with by the ordinary provisions of the criminal law.
The notions of offence, insult and humiliation, however, involve hurt to feelings. This is always unattractive for the subject of the verbal attack but these shock tactics have always been legitimate tools of debate on questions of politics and public interest.
Sometimes these attacks are totally unreasonable. But there should be no place in a federal or state statute for a prohibition on their use in public discussion of social and economic issues.
One of the arguments put by the defenders of section 18C is that it was used to bring proceedings in the Federal Court over a period of 10 years against Frederick Toben, who denies there is evidence that the Holocaust took place in the late 1930s and early 40s.
Toben’s claim is, of course, absurd and naturally offensive to Jewish members of the community. But that is no reason for stopping him expressing this view. The right response to speech that one finds offensive is one’s own speech, not suppression.
There are many examples of distortions of history. Should Turkish diplomats around the world, including those in Australia, be the subject of proceedings under section 18C because they vehemently deny that up to a million Armenians were killed in Turkey in 1916, when all the available evidence indicates that this is what happened?
Some of the defenders of section 18C describe it as a bulwark against “hate speech”. One problem about this term is that it is now frequently used with reference to publications that are merely offensive.
Hatred is a very powerful emotion and one, it might be thought, relatively rarely encountered. The Commonwealth Criminal Code already makes unlawful statements urging the use of force or violence against a person or group distinguished by their race, religion, nationality, national or ethnic origin or political opinion. This is an offence punishable by imprisonment for up to seven years if the use of force or violence would threaten the peace, order and good government of the commonwealth, and otherwise by imprisonment for up to five years.
If it be thought necessary to outlaw incitements to “hatred” that somehow fall short of the urging of force or violence, historically a rare form of publication in our society, it would be possible to include the kind of provision present, for example, in the NSW Anti-Discrimination Act that makes the incitement of hatred on the grounds of race an offence. This provision refers to threatening physical harm and inciting others to threaten harm, but it is not limited to these forms of conduct. There is always a danger, however, that, in the absence of incitements to violence, these kinds of provisions will be used to stifle publications that are merely offensive.
It is hardly surprising that this is an area of particular sensitivity in some sections of the Jewish community. In the aftermath of the Holocaust the state of Israel was established as the only democracy in the Middle East. Despite this history, hostility to Israel is an article of faith in large sections of the media and universities in Europe and in Australia. The BDS boycott movement is just one manifestation of this underlying view.
It would, however, be a pity if representatives of the Jewish community in Australia allowed themselves to be used as part of a campaign to stop the repeal of section 18C. In the long run they have the same interest in freedom of speech as everyone else. As the American jurist Oliver Wendell Holmes said more than a century ago: “We should be eternally vigilant against attempts to check the expressions of opinions we loathe.”
Michael Sexton SC is the author of several books on Australian history and politics.
