The passionate debate and controversy around 18C, and Bill Leak’s cartoon, has made a simple choice appear complex.
It’s about free speech, or restricting it, which is what 18C does.
But choosing which one is best is hard, because both are valuable. Preserving free speech is a precious democratic foundation, 18C protects minorities from hurt.
I think every community leader, journalist and public relations specialist, at least those in corporate or public affairs, needs to make a call on this. My journalist colleague, Peter Greste, has an opinion piece in yesterday’s Australian supporting freedom of speech, and I agree.
Here’s my summary of the issue.
Freedom of speech is implicit in our constitution; it’s so much a part of our culture that we don’t think about just how valuable it is.
Generally we know the limits, taught to us by our parents, school and others. There are legal limits too: obscenity, defamation, blasphemy, to name a few.
But there’s a gap in those laws, to prevent racial vilification which becomes more of an issue as our communities become more complex. Hence 18C in the Racial Discrimination Act.
“…it is unlawful to ‘do an act’, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”
The problem is “offend, insult” are too vague. To a lesser extent you could argue the same for “humiliate and intimidate”. By comparison, for instance with defamation, it’s much most explicit – a defamatory allegation is either true or not. At its most basic that’s what a court case on ‘defo’ determines. Much simpler. Journos deal with it all the time.
So in the case of Bill Leak’s cartoon, if it had been directed at one person, that person could have taken Leak to court for defamation, argued it was untrue, and either won or lost.
The Australian Law Reform Commission has looked at this too:
“In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech…”
Some people say horribly offensive things: the holocaust deniers really upset the Jewish community; some of the terms used against footballer Adam Goode were appalling, as is some trolling. And Bill Leak’s cartoon is racist.
My preference is not to legislate against them, but give them ‘air’, so that they are given the public condemnation they deserve. So, based on journalists’ principles and the concept of free speech, I think we should dispense with 18C completely.
It’s difficult: for me Freedom of Expression is the lesser of two evils. On one hand our gut says ‘lock up’ the people who say really offensive things; by on the other, I suspect that suppressing discussion, if we do it enough, gives rise to yet another disenfranchised group of people who haven’t got a voice. And as we can now all see, there are increasing numbers of people who are disenfranchised, producing likes of Pauline Hanson and Donald Trump.