free speech

I have put in a submission to the Parliamentary Joint Committee on Human Rights. My argument: 18C (and D) of The Racial Discrimination Act are unconstitutional.

From the document:

The general background to this paper will be known to most Australian readers: the Racial Discrimination Act contains a section, 18C, making unlawful any public act “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” when “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.” Recently some cases have come into prominence highlighting severe problems with this formulation; we shall investigate some of these below.

I intend to present four main arguments:

• one, that 18C does not achieve its objective of prohibiting all racist speech.
• two reasons why 18C is unconstitutional:
  • the limitations of its scope in 18D grant discriminatory rights based on intelligence, education, and power;
  • it effectively bans, or makes too expensive to risk, any speech at all (good, bad, or indifferent) that relates to race and is not covered by an exemption in 18D. Due to the discriminatory nature of 18D, this amounts to an effective total ban (from a combination of actual law and fear of state retribution) on speech about race by certain classes of person.
• and, since neither of the two arguments against 18C depends upon whether one’s behaviour might “offend”, “insult”, “humiliate” or “intimidate” (or, indeed, any other “bad effect” verb that might be suggested to replace any of these), it follows that removing or altering some of these words will not fix either of the two problems I have identified.

Before I get to these arguments, there are some general issues that need to be discussed. These include:

• A preliminary discussion of the concept of “race”; this will be referred to in the arguments that follow.
• A short discussion about the sections of the Act preceding the troublesome 18C: what is right, and what is wrong, with these sections. This is necessary in order to see why, in the main arguments, the superficially similar wording of 18C to the preceding sections has such different consequences.

I have presented it in the form of a white paper. Here is the link to the document (pdf, 282K).

During the writing of the paper, I made an (to me at least) amazing discovery: