The freedom of speech debate is about to be reignited after a complaint this week demonstrated the ongoing danger of section 18C of the Racial Discrimination Act.
The case is an example of section 18C making day-to-day conversation unlawful, and dividing Australians rather than uniting them.
Cindy Prior, a Queensland University of Technology academic, has made a complaint against students and other staff at the university. Her complaint is based on several comments made by the staff and students following her decision to eject students from an indigenous-only computer lab in 2013.
Prior has complained that the comments have caused her to suffer "offence, embarrassment, humiliation and psychiatric injury", and has made a claim for just under $250,000.
The case is a sad indictment on the state of free and open debate in Australia. In my opinion, the comments in question would offend only a hypersensitive individual, and none of them are directed at Prior's particular "race, colour, or national or ethnic origin" — the basis of offence required by the Racial Discrimination Act. Prior isn't named, and the comments don't seem to exhibit any form of bigotry or racial intolerance.
So ridiculous is the application of Australian racial vilification laws that they can now be used to punish anti-racist sentiment. The comments above are an endorsement of the idea that students at the university should all be treated equally — no matter their race.
But 18C is now used as a gag to any debate about race and ethnicity. The same was true of a case whose inauspicious five-year anniversary looms later this year.
Prior's complaint demonstrates the legal and cultural significance of the 2011 case against conservative columnist Andrew Bolt. That case also used 18C as its legal basis.
Here's a refresher. Section 18C makes it unlawful to "offend, insult, humiliate or intimidate" a person because of their "race, colour or national or ethnic origin". Bolt was found in 2011 by the Federal Court of Australia to have breached 18C in writing two articles published in 2009 in the Herald Sun.
Most Australians had never heard of section 18C before the Bolt case. Debate raged at the time the bill that included the provision was passed by parliament in 1995. But between 1995 and 2011 section 18C was barely mentioned in the mainstream media. Section 18C was the means by which several legal complaints were made in that period but it was only after 2011 that it became the serious issue of public contention that it is today.
The Bolt case launched 18C into mainstream Australian consciousness. This has had two key effects.
First, it has become a major touchstone for a growing debate about freedom of speech in Australia. Since the Bolt case in 2011 there has been a sustained campaign in favour of repealing 18C. This campaign was partly born out of the deep concern about the provision being used to silence a prominent and well-respected columnist in a mature liberal democracy such as Australia.
But it also brought to the fore the idea that governments have passed laws which restrict this most fundamental human right, and that something must be done to turn back that tide.
Second, political activists and their lawyers have come to realise that section 18C can be used to aggressively pursue political goals.
The case against Bolt was not merely a group of offended individuals making a legal complaint in an effort to remedy personal loss. It is possible that the complainants could have made out a defamation suit against Bolt. But the case was pursued using 18C as a battering ram because of the negative perception that would be created by a breach of the Racial Discrimination Act.
Prior's complaint this week demonstrates that the reverberations created by the decision in the Bolt case are still being felt today.
Too often the law is being used opportunistically. Section 18C is being used not as a shield but as a weapon. In silencing, or threatening to silence, opponents in a debate using legal means, complainants remove the possibility of debate. It's unhealthy and it's undemocratic.
At a time when we are in the midst of a debate about recognising Aboriginal and Torres Strait Islander peoples in the constitution a provision which prevents discussion of these issues should be of concern to all Australians.
Section 18C must be repealed.
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