The Parliamentary Joint Committee on Human Rights inquiry into freedom of speech in Australia has perhaps a misleadingly broad title. As Zaahir Edries, Muslim Legal Network New South Wales branch President, pointed out at the February 1 hearing in Sydney, the inquiry only concerns itself with the effects of section 18C of the Racial Discrimination Act on freedom of speech and not, say, defamation or counterterrorism law.

And for all the ink spilt over 18C, it’s worth remembering how rarely the clause is actually invoked. As Australian Human Rights Commission president Gillian Triggs pointed out during the opening session on December 12 last year,  only “3.8% of complaints last year, or 77 cases, were made under section 18C.” 

[The wildest and wackiest submissions to the 18C inquiry]

An average of four cases per year proceed to court, and the numbers are declining.

However, this has not stopped proponents of changing the law arguing at length that 18C has a “chilling effect” on freedom of speech. On January 7, Martyn Iles, legal counsel for Australian Christian Lobby, told the inquiry “these laws appear to be promoting a more general culture of censorship”.

However, when Labor committee member Graham Perrett asked whether Iles could provide an example of “something that the Australian Christian Lobby considers it is currently impeded from saying about an individual or a group of people because of section 18C that it would like to be able to say”, Iles could not furnish a concrete example.

“I am coming to that. As I said, the words ‘offend’ in particular, insult, humiliate and intimidate are incapable of precise legal definition. So … even in Europe, where there has been far more jurisprudence on this, there is not a clear definition that would enable people to know and lawyers to know either when conduct is within the scope of offence or hate speech or when it is not. That is really the issue. It is a rule of law question.

“It is unknown which issues can be spoken or cannot be spoken. Also, there is a principle at work here which is in relation to whether or not laws in general which prohibit the expression of opinions according to this very low bar are a good idea. I raise the issue of what I call the ‘culture of censorship’, which is the concern not only that these laws are spreading but also that people are being influenced in their interactions with others by these laws.

“It is a trend that has been borne out overseas. Again, in Europe, hate speech laws have greatly increased over the last 50 years. The concern is that the same trend might be occurring here. Our argument is that we should be leading the way by not giving the state the power to arbitrate between what essentially comes down to often social and political disputes. Where people are guilty of really gross misconduct towards people on their race, there are a number of ways that they can be dealt with. There are defamation laws if it is targeted at reputation. That is one serious means of recourse.

“There are the social checks and balances. I was reading a case just today actually. It was the complaint lodged by Senator Nova Peris where, I think, a Liberal Party member said something really quite foul about her on Facebook. He was dropped by the party and he received all kinds of social and other pressure on him, because what he did was wrong. So there is also that side of things. If there is harassment and things like that, there are also other legal measures. The problem with this is that it is too low a bar and it is too subjective a bar. That is really the nature and the essence of the concern.”

You may notice that those 388 words do not contain an example. Later, Greens Senator Nick McKim repeated the question, and Perrett reminded Iles he was protected by parliamentary privilege. Iles would still not be drawn.

“The genuine difficulty — and I am not being evasive — is that I do not know what can and cannot be said under 18C,” he said.

The question continued to be raised throughout the hearings. In his opening statement on January 31, Dr Colin Rubenstein, executive director of the Australia/Israel and Jewish Affairs Council, said claims that 18C stifled public debate around major issues of public concern were “simply incorrect.”

[Take note, David Leyonhjelm: 18C is not all about Andrew Bolt]

“Those who make this claim are unable to offer a single reasonable and valid example of a case where the law made it impossible for exponents to express a sincere point of view in any significant public debate,” he said. “What is it that critics want to say that they cannot say now, we would ask.”

On the same day, Jeremy Jones, AIJAC director of international and community affairs, described his engagement with rural communities in New South Wales as an Australia Day ambassador.

“At many of those functions, this was a matter that came out broadly in conversation, the issue of racism and the nature of the community,” he said. “Generally, when the discussion turned to getting rid of 18C, the question was: why? What can we not do and say? Read our newspapers and look at the vigour of debate. Look at the subjects we talk about every day — what are people asking to say?”

Legal officer of the Lebanese Muslim Association Lydia Shelly was, on the other hand, able to list many examples of culturally sensitive topics that 18C had not taken off the table.

“It has not dampened the criticism of religions in any way, shape or form,” she said. “It has not called into line the Australian Muslim’s place in this society. It has not called into line, for example, what food I serve my child at home. It has not called into line what I choose to wear as an Australian woman in this country. None of these things have been off the table for discussion by our political leadership, by the media or by anybody else.”

Mostafa Rachwani, project manager and media officer of the Lebanese Muslim Association, further argued that being subject to racial vilification was likely to impinge on one’s free speech.

“What usually happens is that communities feel silenced when they face racism, whether it be through having to lay low to avoid some of the spotlight or because at times you do not want to poke the beast,” he said.

The inquiry has two further public hearings, on February 10 in Brisbane and February 20 in Darwin. The reporting date for the inquiry is February 28.

Peter Fray

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