It is very difficult to see the point of this Inquiry. Every argument both for and against the repeal of s.18C has been well-canvassed over the last five or six years, as have the various intermediate positions arguing for partial repeal or amendment. Not a single new argument will come out in the course of this Inquiry and if the committee members are not already familiar with those existing arguments, they should be. A cynic could be forgiven for thinking that this is a Yes Minister-type exercise in stalling. The Coalition took a pledge to the 2013 election to repeal at least the preponderance of s.18C. In the face of Senate opposition, and possibly dissatisfaction in caucus, it broke that promise. The only remaining issues in this are political ones, whether a political party has the will to try for a substantial repeal of this provision.
My view is that free speech is in terrible shape in this country. You cannot claim to be in favour of free speech in the abstract and then slough off what has happened to those QUT students, or ignore the fact that s.18C ensnared one of this country’s leading political cartoonists. As every legal philosopher knows all laws will be over and under inclusive. They will capture people and instances not intended to be captured and miss others intended to be caught. That, in my view, is patently what has happened with 18C.
As members will know there are no hate speech laws of any sort in the United States. Yet it is a vibrant multicultural society; indeed it is one that does a better job integrating, say, Muslims than do the various European democracies with incredibly potent hate speech laws. As J.S. Mill made clear, the whole point of free speech is to allow words and speech that you dislike, find uncomfortable, offensive and flat out wrongheaded. Citizens have an obligation to grow a thick skin and respond to bad ideas by making plain why they are bad. That is how bad ideas get weeded out and held up to criticism and how each individual is treated in a non-paternalistic sense as a fully functioning adult. It is also what prevents over-weening government and bureaucratic over-reach of the sort so obviously on display as regards s.18C. It has no good long term consequences in a democracy to treat people as victims.
It is out of the vigorous back and forth of ideas that we move closer to truth and it should never be sufficient to silence someone just because another can claim to be offended, insulted or humiliated. No, free speech is not an absolute good. Even in the US they forbid speech that counsels violence. However, we in Australia are a long, long, long way from that when mere offence can be the basis for dragging someone else through the procedural hell that follows an 18C grievance.
Eventually this Millian defence of free speech dawned on the federal Parliament in Canada and by Private Member’s Bill they repealed in full their equivalent to our s.18C. As far as I am aware Canada continues to be a vibrant multicultural state since that repeal.
A victim of that Canadian process, Mark Steyn, has rightly pointed out that with these so-called hate speech laws ‘the process is the punishment’. My bet is that the three QUT students, and Bill Leak, and the many, many people who have paid what The Australian newspaper has claimed to be a cumulative half million dollars in ‘go away’ money would agree with Mr. Steyn.
As for the case law, I do not believe that Justice Bromberg’s reading of s.18C and s.18D was correct in the Bolt case. But I am against un-elected judges throwing out this law on the basis of either a federalism challenge or a so-called (but in my view made-up) implied freedom of political communication challenge. Getting rid of this bad law is the job of our Parliamentarians and you ought to get going and do so. Whether you will is another matter.
As for the Australian Human Rights Commission and its handling of these matters I think it is plain to near on everyone that it has done a laughably bad job. You do not really need to hold an Inquiry to see that. Nor is it clear what sort of submissions you could receive that would add anything to the existing information in the public arena. Personally I hope that the Australian Human Rights Commission continues with its inept and anti-free speech handling of these matters as that makes more likely the eventual repeal of this provision.
Finally, it is plain that no number of submissions to an Inquiry such as this will give anything approaching a representative view of what the public thinks on this issue. You will hear from the usual suspects, me included, but not from the vast preponderance of Australians. As I said, this issue was taken to the entire electorate already in the 2013 election. My belief is that ordinary Australians are sick and tired of this speech inhibiting law. They would reward a political party that made plain its intention to do something about it. Alas, they will probably be waiting for a while yet.
The above is the submission of Quadrant contributor James Allan, Garrick Professor of Law at the University of Queensland, to the Inquiry on Freedom of Speech in Australia