TAKING OFFENCE

It was Victor Hugo who wrote that ‘an invasion of armies can be resisted; an invasion of ideas cannot be resisted,’

It was Senator Dean Smith (Liberal, WA) that echoed the French poet and novelist’s words, 164 years later, at a book launch in Perth on August 10th.

The new book, No Offence Intended: Why 18c is Wrong, slams the pernicious curtailment of free speech under 18c of the Racial Discrimination Act (1975) and calls for action to be taken forthwith.

The three authors, Joshua Forrester, Lorraine Finlay and Professor Augusto Zimmermann say that 18c is wrong in law and wrong philosophically.

Further, the trio, all law lecturers, from Murdoch University (WA), argue, it is unconstitutional on two grounds: it is not supported under the external affairs power of the constitution and it impermissibly infringes freedom of communication.

The three legal authors make it clear that 18c does not require anyone to be actually offended, insulted or humiliated only that that an act be reasonably likely to offend, insult or humiliate. Truth is no defence in the new Orwellian society.

The times have certainly favoured their legal arguments with the ludicrous charging of three Queensland university students a prime case against this ‘star chamber justice. Their ‘crime’ was to legitimately complain, on Facebook, about being kicked out of a computer lab reserved for Aboriginal students….run that bit about discrimination past me again. We now have discrimination laws being used against students protesting against discrimination!

In addition, the case against Catholic Archbishop Porteous in Tasmania under Section 17 of that State’s Anti-Discrimination Act added to the poisonous witches brew against free speech.

Porteous faced a complaint against him for circulating a Don’t mess with Marriage booklet, arguing that marriage is a union between a man and a woman-the Adam and Eve argument rather than Adam and Steve!

Given that Australians are to have a plebiscite on this question-unless Malcolm Turnbull welches on the commitment by his predecessor, Tony Abbott- it created a risk that marriage traditionalists couldn’t express their views anywhere in Australia. Why? Because a statement could be made elsewhere in the nation and if re-broadcasted in Tasmania a complaint could be made there.

The odious federal law 18c acts in the same way where a complaint can be made by a third party in the ‘perpeptual offence industry’ to complain on behalf of someone else.

Indeed, we saw recently the Race Discrimination Commissioner, Tim Soutphommasane, positively encouraging people to lodge a complaint against cartoonist Bill Leak, for a cartoon he did on Aboriginals.

 This outrageous conduct, and ‘touting for business’ by a bureaucrat, earning over $300, 000 per annum, is simply an attack on ordinary Australians right to freedom of expression.   

 Of course the ‘twitterati’ leapt into action, in attacking the award winning Australian cartoonist, quite unlike the way they maintain a deafening silence on the human rights of white university students and the dhimmi approach to Islam when Muslim killers unleash on cartoonists and writers.

It is against this manic background that the authors state common law freedoms of speech and association are enough and that fighting racism does not need special state intervention. They argue for more ‘narrowly focused legislation’- the preference for the trout fisherman over net trawling!

The authors devote 93 pages of the book showing how 18c is not supported by the external powers of the Constitution. It overreaches on what constitutes our obligation under the Convention on the Elimination on All forms of Racial Discrimination. There is too much of a Salem witch-hunter approach in searching for offence, insult and humiliation at the expense of freedom of expression and the right to be wrong without be reduced to penury. For any student to be facing penalties of $250,000, and even higher legal fees, is insanity writ large.

Freedom of expression to discuss political, social and government matters is a fundamental right of communication for individuals and media outlets and possible threats to that by 18c is at odds with responsible, representative government. 

Concurring with the authors, Senator Smith said attempting to dismiss concerns as an obsession of right wing zealots is not borne out by evidence.

He noted the Chief Justice of the High Court, Robert French, said in 2004 that words ‘offend’ and ‘insult’ were a long way removed from the ‘mischief’ that the Racial Discrimination act was intended to address; that activist lawyer Julian Burnside QC, hardly a conservative, had said that “the fact you insult or offend someone probably should not of itself, give rise to legal liability; and that the Australian Law Reform commission, “not generally renowned as a hotbed of right wing activism” had stated in its latest report that ‘18c is broader than is required under international law to prohibit the advocacy of racial hatred.The ALRC further said it was broader than in other jurisdictions and maybe susceptible to a constitutional challenge.’

The considered research of Messrs Forrester & Zimmermann and Ms Finlay is going to be hard to deny.

Tony Abbott already laments his failure to honour his promise on 18c, when PM, and now, as a modest member, admits he should have persisted  with a simpler amendment as proposed by Senator Bob Day ( Family First SA) and David Leyonhjelm ( Liberal Democrats,NSW) in 2014.

The ex-PM will get a second chance to speak on removing ‘offend, and ‘insult’ from 18c but remaining silent a second time will ensure his offence and insult will never be forgiven.

Certainly Liberal senators Dean Smith and Cory Bernardi, (the principled South Australian conservative), are not for turning, or being still, on an issue that will continue to gain momentum on the government and cross benches. By late last year nearly one fifth of the Senate was in favour of a change that still officially lacks the backing of either major party.

Unfortunately, the retirement of Senator Joe Bullock (Labor, WA) is a loss for the reformers and the ALP seems obdurately and ideologically opposed to reform.

As for the present prime ministerial incumbent, Turnbull is on record, in May 2015, when he was Communications Minister, as supporting change. When asked about what he thought about removing the offending words from 18c, he said, ‘I was very comfortable with that, I didn’t think that would have any negative impact.’

Thus, Turnbull will be a dead man walking if he refuses to back the change necessary to ensure democratic processes are safeguarded, particularly in the run-up to the plebiscite.

Silence, or opposition, from him will ensure his leadership, already on a thread, will never recover and he will go the way of his predecessor for reneging on his words.

Murdoch’s finest have have done the nation a favour in outlining the need for change and why ‘sitting on the fence’ will continue to give the greatest offence.