Freedom to speak. Section 18C and terrorism

13 Jan




I find myself in a familiar turmoil over the issue of free speech, raised again most recently by the Charlie Hebdo massacres. Those lives were not lost because of the exercise of freedom of speech. They were lost because violent, brutal ideologues murdered them. The lives lost in the 9/11 attacks had nothing to do with the exercise of free speech. Thousands upon thousands upon thousands  of civilian lives lost in wars waged by western powers were not lost because the victims were exercising freedom of speech.

While I abhor the dehumanising stereotyping that is at the heart of hate speech and racial vilification, murderers are responsible for murdering and those ideologues determined to murder will do so, and they will find any reason to justify their thirst for destruction. It is ludicrous to claim that offence and insult are provocation enough to incite them, and that attempting to restrict offence and insult will do anything at all to restrain their murderous impulses.

Race is a construct, used to justify ill-treatment and dehumanisation of those not in the dominant tribe. Religion is a construct, also used to justify ill-treatment and dehumanisation of those not of the dominant belief system. Race and religion are equally illusionary, that is, they are human constructs that have come to be reified as monolithic truths for which people are willing to kill and to die. Section 18c of The Racial Discrimination Act will not affect these monolithic truths, and the willingness of their adherents to murder and die for them.

The human species has not yet evolved out of its need to gather in tribes of one kind or another, and take arms against those they define as not of them. Restricting free speech does nothing to address these fundamental problems.  In many situations it serves to exacerbate division, for example in defamation legislation that inevitably favours those with wealth and power over those with none.

There have always been and will always be extremists and radicals. We can no more expect to live free of the threat of terrorism than we can expect to live without the air that we breathe.

In the end, nothing will be as effective against terrorism as the freedom to speak, even if that speech is offensive and insulting. Those of us who aren’t murderous extremists must learn to deal with speech that insults and offends us because the option, a mass silencing,a mass surveillance of thought, word and deed is far too horrific to contemplate. There is no human right not to be offended. A life without insult is a sheltered life indeed. It is a serious loss to Australian society that a magazine such as Charlie Hebdo could not be published in this country. If you don’t like it, don’t read it, but to make it illegal is unacceptable.

What is wrong with us is that we do not regularly mobilise as did the French in Paris yesterday, visibly united against terrorist attacks. What is wrong with us is that we have become too precious, too willing to allow governments to take responsibility for us in legislation that is and can be little more than a band-aid. Over-protection weakens and infantilises us, and causes us to give up our power to those who would control us, whether they are elected governments or murderous extremists.

Terrorism, and political and governmental reaction to it is spectacle, and it is the same, shared spectacle. It is bad theatre. It is full of sound and fury, signifying nothing and it will not save us from death and destruction, metaphorical and literal, by those who would silence us.


Update: This is the piece on Charlie Hebdo being published in Australia, to which I attempted to link in The Australian and was initially foiled. Suck it up, Rupert.


Being Charlie — with 18c in place, Australia says ‘non’


Charlie Hebdo from October 2014.

SATIRICAL French publication Charlie Hebdo could not be printed in Australia under existing restrictions on free speech, despite its cartoons being embraced across the world as a symbol of Western liberties after the massacre at its offices.

Human Rights Commissioner Tim Wilson told The Australian the restrictions contained in section 18c of the Racial Discrimin­ation Act would “ensure it would be shut down”; he was supported in this position by media law ­experts.

The carnage in Paris has also encouraged two Liberal MPs to publicly call for the debate about changes to section 18c to be re-opened after the government last year unceremoniously dropped its planned reforms following a fierce public backlash.

Mr Wilson, dubbed the “freedom commissioner”, has taken aim at opponents of the 18c changes who are now rhetorically embracing free speech, warning that words needed to be backed up with concrete action.

Failure to do so would be seen as hypocritical, he said.

“The Charlie Hebdo attack is a wake-up call for a lot of people who rhetorically support free speech but when it comes to the nub would choose political ­advantage over sensible reform,” he said.

“This is where they have an opportunity to rise to the challenge, like the leaders of Europe are now doing, rather than being held out as hypocrites.”

In The Australian today, the chairman of the parliamentary joint committee on human rights, West Australian senator Dean Smith, challenges Tony Abbott and Bill Shorten to support a private senator’s bill proposing a middle pathway forward on an 18c overhaul.

The Opposition Leader yesterday indicated he remained unmoved on 18c.

“You don’t give the green light to hate speech when in fact it’s hate which is what we’re all ­united against,” he said.

Mr Shorten said it was distasteful to turn the events in Paris into a domestic political issue. “It is an inappropriate stretch … to see government MPs trying to use what happened in Paris to justify divisive debates.”

The government has formally ruled out any changes to 18c, saying they are “off the table”.

While Mr Wilson argued that many of the religiously themed cartoons in Charlie Hebdo would not fall foul of the discrimination act, he said that racial stereo­typing of Jews and other ethnic groups would create too many legal issues for such a publication to continue in an Australian context.

“18c only covers issues of race and ethnic origin, which would cover some of the material but not all of it,” he said. “It would cover Jews and ethnic representations, but it wouldn’t cover Muslims and other bits. In the end, the legal problems would essentially ensure it would be shut down.

“I think there are lots of different avenues for reform, but I think there are more issues than just 18c that need to be considered.”

Senator Smith threw his support behind Mr Wilson, but urged for a renewed focus on 18c. He is urging both sides of politics to back a private senator’s bill he has co-sponsored with Family First senator Bob Day, Liberal Democrat David Leyonhjelm and Liberal colleague Cory Bernardi.

Senator Smith says the bill could form a “legislative monument to the human price paid by France” and would simply remove the words “offend” and “insult” in a finetuning of 18c.

“By agreeing (to the bill) … Tony Abbott and Bill Shorten will have kept the protections against ­‘humiliate’ and ‘intimidate’,” he writes. “Our leaders have read the mood with precision and Tony Abbott is right to remind us to be prepared to ‘speak up for our ­beliefs’ and ‘call things as we see them’. It is now time to crown our words of vigilance with a deed.”

Senator Bernardi said he absolutely supported the passage of the bill.

Simon Breheny, the director of the legal rights project at the Institute of Public Affairs, told The Australian that Charlie Hebdo’s cartoons certainly “would have been caught in Australia by section 18c of the Racial Discrimin­ation Act”.

“Even if it wasn’t caught by section 18c, there is no doubt they would have fallen foul of restrictive state racial and religious vilification laws. This is one of the possible explanations as to why we don’t have any kind of publi­cations in Australia quite like it, because our laws restricting freedom of speech are so severe.”

Legal experts also united to suggest that Charlie Hebdo would be unlikely to meet the existing tests enshrined in current Australian law, pointing out that satirical cartoons do not occupy the same status in Australian culture.

“You would have a complaint if those sorts of cartoons were to run here,” said Minter Ellison Partner and Fairfax media lawyer in Victoria Peter Bartlett.

“I think they would certainly, run up against 18c and we would receive complaints and we would then need to deal with those ­complaints.”

Mr Bartlett also warned that there was already “some evidence of self-censoring”, given the ­caution around the existing racial discrimination laws.

Justin Quill, a media lawyer used by The Australian, said the publication would have “serious difficulties” and would constantly need to justify its actions. “If someone took action against them — probably more than once — it ultimately would mean that it would be difficult to survive and it could mean it had to be shut down,” he said.

“I can easily say I think there would be occasions where it would lose an 18c argument.

“It’s easy for those who support 18c to say ‘I think they wouldn’t’. What is clear is that the publication would have to successfully bear the onus of proof in proving their defence.”

Charlie Hebdo cover depicting Jesus on the cross.


15 Responses to “Freedom to speak. Section 18C and terrorism”

  1. deknarf January 13, 2015 at 11:34 am #

    While I don’t disagree with your view, I have difficulties with scumbags such as Bernardi whose idea of free speech is primarily one of freedom to vilify and denigrate! Freedom of speech as a right should also come with the responsibility to use it wisely.


    • Jennifer Wilson January 13, 2015 at 11:40 am #

      Yes, I am in agreement with you. Unfortunately, responsibility and wisdom can’t be enforced by legislation. They can be encouraged by public unity though.I think!


      • Marilyn January 13, 2015 at 7:16 pm #

        Public unity in Australia means the white racist trash get their own way all the time, as shown in the Great Australian race riot.

        The racist old white cartoonists here like John Spooner and Bill Leak are vile enough, we don’t need to encourage them to be ever worse.


        • Mayan January 14, 2015 at 9:34 am #

          During my travels, I’ve discovered a couple of relevant things. Firstly, racism is a truly equal opportunity sport: people everywhere have racist attitudes and behave accordingly, to various degrees. It’s not only the melanin-deficient who who play that game, no matter what some self-loathing westerners might think.

          Secondly, Australia is nowhere near as racist as many other countries, even some quite near us. Indeed, it can be quite shocking to see the quantity and quality of animosity on display in some places. Even the casual, everyday actions I’ve seen have surprised me.

          Now, none of this makes it right, but it is important information about humanity.


        • paul walter January 15, 2015 at 7:02 am #

          Inclined to agree, Marilyn.

          I think Jennifer missed the point as to,
          ” ït is ludicrous to claim offence and insult are enough to incite them…(clunk)” re hebdo and muslims,especially in France in recent times, a situation worsened by racist religious or ideological malignants.


          Bob Ellis claims that six million Iraqis alone have been killed or damaged there, then we add Palestine and Gaza, the Lebanon, Syria, Egypt and a dozen other place under the hammer, long term, on the false alibis for domination and plunder propagated by the West.

          I’d love to know what the likes of Tariq Ali or Edward Said would have made of that part of the post.

          Now down the second part re the OZ.
          Whoodda thunk I’d ever line up with Tim Wilson against Dr Wilson (shakes head, wtf)?
          But I think the article distinguishes fairly enough between hate speech and freedom of speech, which is its main mission.


  2. Jan Dobson January 13, 2015 at 11:53 am #

    I’m not a subscriber to The Australian, so I couldn’t follow the link regarding the legality of publishing Charlie Hebdo here, but thought you may be interested in this by Race Discrimination Comminissioner Tim Soutphommasane on that subject.

    I’m in favour of some restrictions to ‘free speech’, especially in the areas of truthfulness, incitement and vilification. I always think of Stan Lee when reading the Voltare quote: With great power comes great responsibility.

    Personally, I’ll defend your rights up until they impinge on the rights of others. Then it’s a case by case decision. One of the strengths of being a thinking being, I can hold two or more opposing beliefs in balance. Or at least try to.

    Another good post Jennifer.


    • Jennifer Wilson January 13, 2015 at 12:09 pm #

      Sorry about that link, when I received it it was accessible, they have obviously clamped down this morning.

      Thank you for that link to PM, which was most interesting.

      The impingement on the rights of others is another excellent topic for discussion. Whose rights take precedence and why, for example.

      BTW I asked Tim Wilson this exact question about competing rights on Twitter when he was first appointed Freedom Commissioner. His response was to block me!


      • Mayan January 13, 2015 at 1:55 pm #

        I can’t speak for Tim Wilson, but one of my principle objections to s18c is the notion that one can breach a law because of someone else’s reaction to what you have said. Unless I’m one a few who lack the ability to read minds, this seems to make the law arbitrary, and hence unfair. For laws to be obeyed they should be specific about what it is they prohibit.

        Similarly, this was a concern about the previous government’s proposed media legislation. The creation of a body that would, after the event, determine whether something was or was not okay would have created an oppressive environment because no one would know what was disallowed.

        While there will always be some debate around the edge, which is the reason why matters are heard in court rather than determined by a formula, those who argue for restrictions on speech need to provide an objective standard.

        Liked by 1 person

  3. Mayan January 13, 2015 at 1:17 pm #

    Some of the cries of ‘racism’ for criticisms of Islam and its founder seem to me to be misguided. We live in a society in which, for example, Catholic doctrine is the subject of debate and discussion in the media, and quite rightly so because they and other Christian groups have entered into politics.

    We see now that there is at least a plurality of the Islamic community in favour of influencing the law in the direction of their religion’s laws. In that sense, they have opened the door to criticism of their beliefs and of the founder of that belief system whom they regard as some type of model to emulate. (I would contend that he is anything but a role model to emulate.)

    Liked by 1 person

  4. bjmuirhead January 13, 2015 at 2:12 pm #

    The onlly thing that the Abbott government has proposed that I agree with (as far as I know) is the repeal of 18c. I have opinions on Christianity which would be accepted (it’s just assumed acceptable by many) but which are (theoretically) in violation of 18c. I have similar opinions about Islam, which would really get me into trouble, even though they are roughly the same as my opinions on Christianity, especially the fundamentalist Christians. White, born and raised in Australia, and I hate Christianity. Is that ok, I wonder? Christians, Muslims and Jews are not races, they are a religious believers, and the rejection of a religion should never be the matter of censorship.

    (By the way, they are not races because they all accept converts to their faith. Any notion of it being racial seems oddly fundamentalist in the worst ways. Zoroastrians, on the other hand, are a different matter, this faith does not accept converts, and can only marry within the faith, which is now almost extinct, if you will excuse that word, as a result)

    Beyond the issue of faith, they all simply are people…. shouldn’t that be enough?


    • Hawkpeter January 13, 2015 at 2:33 pm #

      I feel like I’m in the same boat as you bjmuirhead.

      I was totally behind the Attorney General with his ‘right to be a bigot’ comment, and it indeed was about the only thing this government heed originally in the right direction on.

      St John’s gospel already clearly contains hate speech against ‘the Jews’ accusing them of deicide and claiming that they demand the blood of christ on their head.

      Uttering unpleasant words is something adults have to put up with; full disclosure, I am a white male.


  5. doug quixote January 14, 2015 at 11:23 pm #

    I agree regarding the amendment of 18C to remove the “offend” reference. There is no such thing as “a right not to be offended” and this law went too far.

    However, we find ourselves with strange bedfellows in Brandis, Bolt and Bernardi, which causes us pause for thought. Their approach is from a libertarian way of seeing things.

    But despite my general rejection of that approach, they do have some ideas of worthy provenance, which they stole from the great thinkers of the Enlightenment. Stolen from Voltaire, Freedom of Speech is one of them.


    • Jennifer Wilson January 15, 2015 at 2:17 pm #

      Strange bedfellows indeed, DQ, but as with all complex ideas, 18C is approached from differing points of view for often alarmingly different and opposed reasons. Can I have problems with 18C & not be seen as a supporter of the IPA, for example, as someone asked on Twitter.


  6. paul walter January 25, 2015 at 12:08 pm #

    Of the posts up this year, this one has stayed with me. It was up when other things were on the verge of ocurring and got lost in traffic, I think.

    I never quite felt I could resolve the more paradoxical stuff, and let it be for bit.

    Your last comment resonates, as with the tale of your expungement by the freedom of speech man, Wilson.


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