“Can you give the Committee an example of something you would like to say that cannot currently be said without offending 18C?” This is the challenge being given to many appearing before the Free Speech Inquiry in recent days, including me.
The Inquiry is investigating possible reforms to sections of the Commonwealth Racial Discrimination Act including section 18C which makes it illegal to “offend, insult, humiliate or intimidate” a person or group on the basis of race. This is the section responsible for the controversial complaints against QUT students who unwittingly used an Indigenous-only computer room and cartoonist Bill Leak for his depiction of the social decay in some Indigenous communities.
The answer to the question is, “no.” Not because there is no such example, but because we don’t know what can and cannot be said under 18C. Laws that prohibit offence and insult in the name of preventing “hate speech” are impossible to reliably obey and always have been.
Recently caught by a Tasmanian law with the same wording, Archbishop Julian Porteous’ error was to ‘offend’ someone who read his gentle pastoral letter on marriage.
I received calls in the aftermath of that complaint from people who had been busy writing articles, designing websites and preparing speeches about marriage (remember a plebiscite was on the cards). Were they safe, they asked? The only answer an honest lawyer can give is “I don’t know.”
I'm not the only one. The European Court of Human Rights is the most experienced arbiter of hate speech laws in the world today. Yet in its own fact sheet on the subject it confesses that “there is no universally accepted definition of hate speech.”
The great English common lawyer, Sir William Blackstone wrote that “there can be nothing more equivocal and ambiguous as words” noting that “their meaning always depends on their connection with other words and things… and sometimes silence itself is more expressive than any discourse.”
Or take the more recent comments of Australian High Court Justice Kenneth Hayne. Because of this uncertainty he explained that the law “has developed recognising that human behaviour does not accommodate the regulation, let alone the prohibition, of conduct giving offence.”
His Honour very presciently noted that “any general attempt to preclude one person giving any offence to another would be doomed to fail and, by failing, bring the law into disrepute.”
Surely this is part of 18C’s problem. It has been brought into disrepute by activists who have used it in the pursuit of ideological battles by ending certain ideas and debates with the force of law.
But that is precisely the point of “hate speech” laws. It always was. Incapable of bearing clear meaning, these laws have been used for many decades around the world to silence debate and ideas. This is a luxury only possible through a law that means, as Humpty Dumpty said, “just what I choose it to mean – neither more nor less.”
A modern warning of this phenomena can be found in a 2009 ruling by the European Court of Human Rights: “Humans, including judges, are inclined to label positions with which they disagree as palpably unacceptable and therefore beyond the realm of protected expression.”
This is why laws against offence are almost never invoked in cases of actual hatred. They are far more readily invoked when someone talks about something controversial. In my experience: marriage, transgenderism, abortion, religion. Nothing soothes indignant disagreement like a legal complaint and the shrill cry of “hate!”
When the power of the state winds up threatening debate itself and silencing the discussion of entire subjects one's mind turns to past regimes where this sort of thing was part and parcel of government agendas - mostly totalitarian or communist governments, like that of the USSR.
No surprises then that that’s exactly to whom 18C owes its heritage.
Many trace 18C, the Racial Discrimination Act and such legislation back to the international human rights treaties to which they give effect and stop there. But there is more to the story.
The argy-bargy and politicking that went into making those treaties is fascinating. Every time free speech came up for discussion, records show that delegates from the Western democracies (including Australia) registered passionate defences of no-holds-barred freedom, save for incitement to violence.
Eleanor Roosevelt (widow of President Theodore Roosevelt) from the USA delegation gave stern warning that making “hate” and “hostility” illegal would only create an environment where unpopular speech was so-labelled and outlawed.
Lady Gaitskell of the UK delegation railed against the words on which 18C is based, warning that such laws would not actually prevent racism but would give the state power over opinions and ideas that it should not have.
These women put our leaders to shame with their insight and prescience. Perhaps it was because they knew the motives of their communist counterparts all too well. It was they who demanded limits on free speech, to the chagrin of the free world.
When the votes were cast on Article 20(2) of the ICCPR, which limits speech that spreads “hatred” and “hostility”, every single European nation that voted in favour of the clause has since had its regime totally collapse. The western democracies stood firm against limits on free speech, but failed to marshal sufficient numbers to prevail.
Whether the UDHR, the ICCPR or CERD (the acronyms make this easier to read) – the story is the same with all these treaties. The relentless advocacy of failed communism saw free speech limits smuggled into their terms.
The ultimate irony is, of course, that the presence of hate speech laws in each of these nations did nothing to prevent them from being among the most despotic, violent, and even racist nations on earth. Even Hitler’s Germany and the Wiemar Republic (incredibly) had laws against racial hate and insult.
These regimes were themselves the haters. Their “hate” laws mere weapons of censorship.
So why can’t we reliably point at the dividing line between what we can and cannot say under 18C? We’re not actually supposed to be able to. That was always the point.