18D is more than just a bra size.


Image: @JacquiLambie

As sure as night follows day, as sure as death finds us all – present company intending to be excepted – as sure as people who say, “The proof is in the pudding.” don’t have a clue what they’re saying, section 18C of the RACIAL DISCRIMINATION ACT 1975 has again been raised by the usual political suspects.

I believe in free speech.  Indeed, I’m really quite a fan of it.  But I also believe in item 18C of the  Act.  Some think they’re mutually exclusive.  I don’t agree, but I’m open to arguments about the addition of the terms “offend” and “insult”.  I think they are, in fact, problematic.  We’ll look at that in a moment…

I’m going to stick my neck out here and declare that those people who wish 18C to be removed altogether from the Act, and not merely modified a little, have never read the item directly following and utterly interdependent on 18C — namely, 18D. You can glean from the arguments of such people that they either have no awareness of it, or are determined to pretend it doesn’t exist.

Let’s have a look:



Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)  in the performance, exhibition or distribution of an artistic work; or (b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)  in making or publishing:

(i)  a fair and accurate report of any event or matter of public interest; or (ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Pretty straightforward, isn’t it?  Many social commentators, aside from myself, have been trying for ages now to bring it to its rightful place in this debate.  So, given what it says, what’s all the bloody fuss about?  If you have a good faith belief in the view you’re espousing, 18D protects you.  If you don’t have that good faith belief why on earth are you expressing the view in the first place?  Because you think the principle of freedom of speech inheres the right to be a dickwad?  Perhaps to some extent it does, but there are reasonable and necessary limits.

One of the problems with this debate is that there exists philosophic ignorance, and far too much self-righteousness, on both sides.  It’s both amusing and disturbing to see how many Leftist secularists there are nowadays who are given to outbursts of haughty morally superior rhetoric that you’d ordinarily expect to see from a religious zealot.

The nonsense ad hominem of calling a person a racist in emblematic of that.  A person may or may not be a racist if they have an issue with 18C.  They are most certainly not such merely because they have an issue with it.

So, what about the addition of the words “offend” and “insult”?  Some people have a problem with them being included, and I can understand why.  They do create difficulty. Although it might be said that the language of the Act is rather subjective and arbitrary, and it kind of is, that isn’t really avoidable and generally doesn’t present that much of a problem.  But the inclusion of concepts like offence and insult make things even more bothersome.

When David Leyonhjelm says that offence is “…always taken and never given” he is wrong but there is nevertheless a valid point to be made from his error.  Though offence is always taken, it is also very often intended.  The predicament however is this:  intent can be very hard to prove, and the taking of offence never constitutes evidence of intent.  We can never allow a situation where a person is able to say to another, “I’m offended by what you said, therefore you intended to offend.”  That would be sheer idiocy.

But that’s the problem we create for ourselves when we try and legislate such concepts. What is the standard being applied and who gets to apply it?  The most sensitive, egotistical people in the community?  If not, then are they not being arbitrarily excluded?

So, the base standard from which we make judgements about offence and insult are in the hands of, for argument’s sake, a person who believes no-one from outside their race has any right or ability to make any statement regarding theirs, and therefore whenever they do they’re being insulting and offensive.  We necessarily end up at that point.  It’s far too messy and unworkably subjective and arbitrary for mine.

That said, this is, admittedly, a somewhat abstract argument anyway.  In the real world 18C does not restrict our freedom to express our beliefs as we hold them.  If we can’t do that without some measure of civility and moderation maybe we need to examine the reasons for that. One of the beauteous aspects of language is that it affords us almost infinite scope for the expression of ideas.  If we care about not giving offence and do not intend to do so, we usually have that ability available to us.  Or at least, we have the ability to acquire that ability.

On the other hand I have always been deeply suspicious of any person who believes they have the right to modify another’s speech based solely on their personal sensibilities. Context matters, of course, but such people have always spooked me.  You can tell me you don’t like what I’m saying, and I can respond to that as my moral and social conscience dictates, but don’t tell me I can’t say it just because you don’t like it. If the only thing at stake is your egotistical sensibilities, you can pretty much piss off.

Some of the rhetoric surrounding 18C is nothing short of hysterical.  18C is about creating civil, not criminal liability. Breaching 18C is not a crime, it is simply unlawful.  Andrew Bolt did not commit a crime, other than perhaps in the moral sense.

” Contrary to popular perception, no one can be prosecuted or convicted for breaching the RDA. Racial discrimination may be unlawful, but it does not constitute a criminal offence attracting penalties. A contravention of the law is neither a misdemeanour nor a felony, but a statutory civil wrong. Where someone believes they have experienced racial discrimination under the law, they are free to make a complaint to the AHRC and seek a remedy.” – Human Rights Commission

Just get over it, people.  Relax, speak your mind. Just, you know, pay some heed to the quality of the content of your mind. It’s really not that hard and it does sort of matter.

To finish – 18D.  Embrace it.  Feel safe and warm within its bosom.   I know I always do.

As always your thoughts are welcome.

About Dan Rowden

Dan Rowden is a freelance writer and philosopher who has been active in philosophical and political discourse since Malcolm Turnbull invented the Internet in Australia. For the last 15 years he has contributed to and administered Internet philosophy forums. Politics is a secondary interest, but he recognises moments of significance in Australia's political history.
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