Section 18D

The IPA’s opening statement to the Parliamentary Joint Committee on Human Rights’ hearing into section 18C

The following remarks were given by the IPA’s Simon Breheny to the Parliamentary Joint Committee on Human Rights’ hearing into section 18C in Melbourne yesterday. The opening statement was followed by questioning directed to Simon and the IPA’s Dr Chris Berg. Readers can watch the video at this link.


Freedom of speech is a basic Australian value.

A survey commissioned by the Institute of Public Affairs, published today, finds that ninety-five per cent of Australians say freedom of speech is important. Fifty seven per cent say it is very important.

Australia’s commitment to freedom of speech makes this country one of the most diverse, prosperous and socially welcoming on the face of the planet.

Laws that undermine free speech put at risk our success story as a socially inclusive nation.

Section 18C of the Racial Discrimination Act is one of the most significant restrictions on freedom of speech in this country.

Along with the rest of the provisions in Part IIA of the Racial Discrimination Act, Section 18C ought to be repealed outright.

It is an excessive, unnecessary and counterproductive restriction on Australians’ liberties.

Alternative proposals for reform would not solve the problems with the legislation that have been identified by recent court cases involving section 18C.

Simply removing some of the words from the section or, worse, replacing them with new words, would be, in our analysis, either ineffective, or redundant, or create even more uncertainty about the scope of the law.

Some participants in this debate argue that freedom of speech is protected by section 18D. But section 18D is a weak and unstable foundation for such an important right.

Section 18D has been applied in just three out of more than 70 cases that have been decided by the courts since Part IIA was first inserted into the Racial Discrimination Act in 1995.

Nor should parliament imagine that section 18D provides any certainty about the law. In the QUT case Judge Jarrett noted a “conflict in the authorities about the way in which s.18D might operate.”

More fundamentally, section 18D places a burden on the respondent to prove why he or she should have the right to speak freely. This is not a requirement that a free country like Australia should be proud of.

Offence is not a moral trump card. Australia is driven by other values – including individual freedom and democracy. Section 18C harms these values.

We urge this committee to recommit to the liberal democratic values that make this country great, and to recommend the full repeal of Part IIA of the Racial Discrimination Act.

Thank you.

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The MP who is there for free speech – always

New South Wales Liberal Democrat Senator David Leyonhjelm has a magnificent piece in today’s Australian Financial Review ($). He laments the failure of Australian politicians to consistently defend our most important civil liberty – freedom of speech.

Senator Leyonhjelm has opposed every encroachment on this fundamental human right during his time in the Senate, including the recent proposal to increase restrictions on speech through “stronger prohibitions on vilifying, intimidating or inciting hatred“, section 35P of the National Security Legislation Amendment Act, the establishment of a censorious Children’s e-Safety Commissioner, the proposal to track every Australian’s internet activities via the planned mandatory data retention regime, and has been disappointed to see the Abbott government reverse its election commitment to repeal section 18C of the Racial Discrimination Act 1975:

What all this means is that free speech is defended in some situations – when the speech is agreeable, linked to privacy, or relevant to a certain political constituency – but not others. It amounts to not supporting free speech at all. To make an old joke, selective support for freedom of speech is like being partly pregnant.

Shutting down speech by claiming you’re ‘offended’ or that something should not be said, or inhibiting speech by criminalising journalism, is an admission of failure to understand the whole concept of free speech. And if you don’t understand free speech, you don’t understand freedom.

Freedom of speech is the paramount freedom. Without it, we struggle to exercise our other freedoms. With it, we can fight for those freedoms. It may be offensive, insulting and make governments uncomfortable, but if this is the price to be paid for living in a society where all claims are open to question, then it is a price worth paying.

I compromise on certain issues on the grounds that some progress in the direction of liberty is better than none. But I believe all politicians in a liberal democracy should be uncompromising in defence of free speech. My fellow politicians should make their voices heard while they still can.

Read Senator Leyonhjelm’s important piece here ($).

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Senator Day’s bill an important step on the road to restoring free speech

“Family First Senator Bob Day’s Racial Discrimination Amendment Bill 2014 is an excellent step in the right direction to restore free speech,” said Simon Breheny, director of the Legal Rights Project at free market think tank the Institute of Public Affairs.

Senator Day’s bill is being debated in the Senate this morning. The bill is co-sponsored by Liberal Democrat Senator David Leyonhjelm and Liberal Senators Cory Bernardi and Dean Smith. The bill proposes to remove the terms “offend” and “insult” from section 18C of the Racial Discrimination Act 1975.

Section 18C currently makes it unlawful to “offend, insult, humiliate or intimidate” a person on the grounds of “race, colour or national or ethnic origin”. Section 18C was the law used against journalist Andrew Bolt in 2011.

“This bill removes the worst parts of section 18C – the terms that create the right not to be offended. Senator Day’s bill is an important step on the road to restoring freedom of speech,” said Mr Breheny.

“This reform will increase the threshold that complainants will have to meet to make out a successful claim under section 18C. It will also make it more difficult for judges in future cases brought under section 18C to rely on the precedent set in the Bolt case,” said Mr Breheny.

“This proposal to amend section 18C attracts support from commentators across the political spectrum. Former Prime Minister John Howard and former minister David Kemp have forcefully argued for the reform of section 18C. Prominent members of the political left are also in favour of the proposed change, including barrister Julian Burnside, human rights academic Sarah Joseph and journalists David Marr and Gay Alcorn,” said Mr Breheny.

Removing the words ‘offend’ and ‘insult’ is a policy position that almost everyone can agree on. All those who value freedom of speech should support Senator Day’s bill.”

This morning the IPA released a video on Senator Day’s bill, which you can watch here.

The IPA today also released a fact sheet explaining Senator Day’s bill, which is available to download here.

For media and comment:
Simon Breheny, Director, Legal Rights Project, 0400 967 382, [email protected]

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The fight to repeal section 18C continues

The Institute of Public Affairs will never stop fighting to restore free speech in Australia. We will continue the fight to repeal section 18C of the Racial Discrimination Act.

As an IPA supporter you’re invited to be a part of the IPA’s next step in the fight for freedom of speech in Australia. Together with the Menzies Research Centre, the IPA is hosting The Ultimate Freedom? Professor Frank Furedi, in conversation with John Roskam and Nick Cater, will talk about how to restore freedom of speech in Australia, and the current and emerging threats to the ultimate freedom.

Professor Furedi is a world-leading expert in education, risk and culture in the West. He has published 17 books, including Wasted: Why Education is not Educating and First World War: Still No End in Sight. His articles have been published in New Scientist, the Guardian, the Independent, the Financial Times, the Daily Telegraph, the Daily Mail, the Wall Street Journal and many other publications. Read Professor Furedi’s excellent Spiked article on the importance of freedom of speech here. And click here to view his website. The event will be filmed and available to view online.

Details of the event are:
Monday, 6 October 2014
5.00pm for 5.30pm – 6.30pm
CQ Functions, 113-123 Queen Street, Melbourne

The event is free for IPA members, and $10 for non-members. Click here to book or contact Sarah Wilson at swilson.ipa.org.au or on (03) 9600 4744.

IPA members tell Tony Abbott about the importance of free speech

This statement was placed in The Australian by the IPA after the Abbott government announced that it was abandoning its election promise to repeal section 18C. Thank you to the 501 IPA members and donors who together contributed $60,294 to make the statement possible. 20 lucky donors have been sent a copy of the statement personally signed by Andrew Bolt.

On 6 August 2014, in a radio interview on the day after the government’s announcement, Prime Minister Tony Abbott said the proposal to restore freedom of speech by repealing section 18C had become a “needless complication”.

Even worse, the political class now see freedom of speech as being a ‘right wing’ issue. IPA Executive Director John Roskam explained this trend in his must-read Australian Financial Review column last Friday:

“A commitment from public commentators in this country to the importance of freedom of speech and a free press would once have been taken for granted. Now a belief in freedom of speech is regularly labelled as ‘ideological’ and even, bizarrely, as something that’s ‘right wing’.”

The IPA is continuing to fight to restore free speech in Australia.

Later this year, we will release a briefing paper on the experience of other Western liberal democracies in dealing with laws against offensive speech. Australia is moving in the wrong direction on free speech and it is out of step with some of our closest cousins. Canada repealed its own version of section 18C back in June 2013. The United Kingdom also repealed laws against offensive speech last year. The United States has never had hate speech laws.

Australians want section 18C to be repealed. The Abbott government’s decision to drop its section 18C repeal bill does not reflect the opinions of the Australian electorate. As a 2011 poll demonstrated, when Australians are asked to choose between freedom of speech and the right not to be offended 82% of them will choose freedom of speech.

We are also committed to demonstrating that the restriction on freedom of speech imposed by section 18C goes beyond the case against Andrew Bolt. The Bolt case was the most egregious use of section 18C. But there are dozens of other examples where section 18C has been used to limit the fundamental human right to freedom of speech.

IPA member Senator Bob Day to introduce bill to restore free speech

South Australian Family First Senator Bob Day is proposing to introduce a private member’s bill to amend section 18C. Day’s bill will remove the words “offend” and “insult” from the provision that was successfully used against News Corp Australia journalist Andrew Bolt in September 2011.

We are delighted that Senator Day has committed to amending section 18C. Removing the words “offend” and “insult” from section 18C is a worthy reform, and his bill deserves the support of every member of parliament.

If you’d like to send Senator Day a message to congratulate him on this excellent initiative you can send an email to him at [email protected].

Although it’s disappointing that the government decided to abandon its reforms, it is encouraging to see Coalition backbenchers step forward to take a principled stand on free speech. South Australian Liberal Senator Cory Bernardi has committed to co-sponsoring Day’s bill. Queensland Liberal National Party Senator James McGrath has also said he will support changes to section 18C. Western Australian Liberal Senator Dean Smith has said that he is “strongly considering” supporting the proposed changes. Senator Smith reinforced his commitment to freedom of speech in an important speech he gave in the senate on 27 August.

Western Australian ALP Senator Joe Bullock has also flagged his personal support for the repeal of section 18C. Bullock’s maiden speech included this gem:

“Today, tolerance appears in some quarters to be a misunderstood concept. The politically correct place tolerance on a pedestal among virtues but hold that it requires that all sincerely held views—provided that they are not politically incorrect—be held to be equally valid with respect to the holder of them. This is not tolerance but rather a flawed doctrine of moral equivalence. To be tolerant of your views I do not need to pretend that you are just as right as I am but rather to accept that you have a perfect right to hold a view I believe to be wrong, even if I find your view offensive.”

Labor hypocrisy on press freedom

Bill Shorten surprised everyone recently by coming out strongly in favour of press freedom. This is what he said when asked about the Abbott government’s proposal to imprison journalists for ten years for revealing information about “special intelligence operations” at a doorstop on 27 August:

“We fundamentally believe in the liberty of the press, and the freedom of the press. …Labor is very mindful of making sure we maintain the freedom of the press. We will work through the details of whatever they’re proposing with the Government, but we certainly have uppermost in our mind that our journalists should be able to carry out their work.

This commitment to freedom of the press was absent when the Gillard government proposed massive new restrictions on the news media in 2013. I highlighted Shorten’s hypocrisy in a recent piece published in the Australian Financial Review:

 

Abbott government’s copyright reforms revive the internet filter

On 30 July 2014, the Abbott government released a discussion paper entitled ‘Online Copyright Infringement.’ The discussion paper outlines three proposals the government is considering in a bid to tackle online piracy. The IPA’s Chris Berg and I made a submission to the government on the proposed changes, which you can read here. You can read the Sydney Morning Herald‘s coverage of our submission on 2 September 2014 here, and an opinion piece I had published in the Daily Telegraph on 10 September 2014 here:

 

 

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Roskam: Free speech cannot be sacrified or negotiated

IPA executive director John Roskam’s column in the Australian Financial Review today is on the federal government’s decision to abandon the repeal of section 18C:

Media commentators welcomed the Prime Minister’s abandonment of his promise to repeal section 18C as evidence he would be less “ideological” and would govern from the “centre” of Australian politics.

Abbott’s decision last week reveals Continue Reading →

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Kemp: 18C debate must be won

Former president of the Victorian division of the Liberal Party and minister in the Howard government, David Kemp, has an important piece in today’s Australian:

Menzies was very aware of the tendency of politics to degenerate into the appeasement of powerful vested interests. The only way for a government to rise above the struggle of vested interests for privilege, he argued, is to persuade Continue Reading →

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Mike Carlton taken to the Human Rights Commission

Former Sydney Morning Herald columnist Mike Carlton is being taken to the Australian Human Rights Commission for a now infamous allegedly anti-Semitic column published on 26 July 2014. The legal basis of the claim? Section 18C of the Racial Discrimination Act.

I wonder if this has changed Carlton’s views on section 18C:

Probably not. As Andrew Bolt points out, Carlton has nothing to fear. In the eyes of the AHRC, the real crime is not being of the political Left.

But Carlton is wrong. Section 18C is a significant curtailment of our liberty. It should be repealed so that no one’s freedom of speech is restricted. Not even Mike Carlton’s.

It’s also worth noting that civil society has already meted out punishment for Carlton’s conduct. After being lashed in the media and losing his job legal action seems entirely redundant.

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