Criminal Law

By Adrian McKenna

23.03.17

Why the section 18C obsession is not really about freedom of speech

The Federal Government has reignited national debate on a controversial proposal to amend section 18C of the Racial Discrimination Act. But how does the catch cry of freedom of speech so often put forward by proponents stack up?

Section 18C makes it unlawful for a person to do an act that is reasonably likely to offend, insult, humiliate or intimidate another person or a group of people because of their race, colour or national or ethnic origin. A contravention of the section is not a criminal offence. Instead, it gives rise to making a complaint to the Human Rights Commission and seeking compensation in court.

No doubt freedom of speech is one of the pillars of our society but one has to wonder why there is such obsession with this particular piece of legislation to the exclusion of all others. Where is the outrage or concern for other laws that are arguably greater curtailments on freedom of speech? The amendment seems not so much about broad concerns on freedom of speech but rather in giving licence to racism and racial insensitivity or as George Brandis put it, the right to be a bigot. That or to give certain commentators free reign in engaging in incendiary racial discourse.

Section 474.17 of the Commonwealth Criminal Code, for example, makes it a criminal offence to use a carriage service to “menace, harass or cause offence”. The offence can carry up to 3 years imprisonment. You can land up to 2 years gaol under section 471.12 for using a postal service to menace, harass or cause offence.

In NSW it is a crime to behave in an “offensive manner” or use “offensive language” in a public place under sections 4 and 4A of the Summary Offences Act. Those offences can lead to fines and up to 3 months imprisonment. In Victoria, the equivalent legislation carries 2 to 6 months for certain conduct in a public place including singing an “obscene song or ballad”, using profane language or behaving in an offensive or insulting manner.

From my experience, these and a whole host of other similar charges are not often laid but they are far more common than any court proceedings relating to section 18C.

If the 18C debate is really about freedom of speech, why haven’t we heard a jot from proponents about these offences which are equally, if not more, restrictive of this freedom? One can’t help but be deeply suspicious of the purported motives.