Fixing 18c: Not Perfect, But Close To It

The Abbott government’s announced plans to repeal sections 18C and 18D of the Racial Discrimination Act, the so-called ‘hate speech laws’, are to be welcomed.   Never make the perfect the enemy of the good.  Sure, a repeal with no replacement would be better.  But we’re getting a repeal with a replacement that only covers those who ‘intimidate’, as in causing fear of physical harm, or ‘vilify’, as in inciting hatred against a person or group. 

The first of those is fine.  The second I don’t much like, but it will be far, far better than what we have now.  Better still, we have an explicit provision that jettisons the awful Justice Mordecai Bromberg reading of the existing law — that it is to be measured through the eyes of the self-perceived victim group.  Now we have an explicit provision that the test of whether speech has intimidated or vilified is to be judged ‘by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.’

And there is even a better rider now, one that says the section ‘does not apply to words … published  … in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter’.

So, if you were to take the same judge, same speech and same complainants and ask if Bolt would have won under the new legislation, the answer would be a clear ‘yes’.  Not even Bromberg, the man who stoppedToyota workers even considering changes to their agreement, could have found against Bolt under this amendment.

Mr. Abbott and Mr. Brandis are  to be congratulated.  They’ve had to contend with a hostile ABC (I shock you, I know), with all the usual suspects in the grievance politics world who, again I shock you, live on the public dime, with the ‘identity’ lobbies who plead racial endangerment (a ridiculous claim), and even with the handful of weak-kneed and left-leaning members of their own caucus.

So this is good — no, great! — work by the Coalition.  It has just earned them my vote at the next election.  Of course they still have to get it through the Senate and there is no hope of that until July.  Then we’ll see.

Meanwhile, who doesn’t love watching the hypocrisy of our former Governor General taking up her new title of Dame ?  I love this move by Abbott, too.  I would have given a day’s salary to be there when he sprung it on Turnbull.  Marvellous!

James Allan is Garrick Professor of Law at the University of Queensland