Louise Clegg, barrister and lecturer in constitutional law has written a piece which was printed in the AFR as Inevitable demise of 18C can’t come soon enough, and online as Why are politicians defending 18c when the High Court won’t?
She regards 18C as self-evidently unconstitutional, and cites a speech by retiring Chief Justice Robert French as indicating that the High Court would find it so.
She calls the QUT case “monstrous”, says the poor students have had their lives changed forever, and “these boys could be anybody’s sons.”
She reckons the HRC are in the vanguard of ‘identity politics’, self-evidently bad, and accuses Race Discrimination Commissioner Tim Soutphommasane of touting for business.
Today there is a letter from said Tim Soutphommasane, pointing out that it’s part of his job description to promote public acceptance and understanding of the Racial Discrimination Act, he doesn’t actually do the cases himself, and it is wrong to say, as Clegg does, that the Act protects “mere hurt feelings”. 18C only extends to “profound and serious effects”, which are “not likened to mere slights”.
Clegg, he says:
- dismisses section 18D of the act, which protects any fair comment or reporting on a matter of public interest, and any sentiment expressed “in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose”. Given this wide protection of free speech, we must ask what it is that anti-18C campaigners want to say that they can’t already under section 18C?
I have said before that I don’t believe the QUT students should be in the frame. I believe the complainant, Cindy Prior, a former employee of the Queensland University of Technology’s Indigenous Office, was badly let down by QUT as an institution.
I would also point out that while the students “could be anybody’s sons” Ms Prior could not be anyone’s daughter. She is a member of a small racial minority that has been subject to significant racial discrimination. Remember Ms Prior:
- later claimed she felt unsafe leaving her home due to fears of being verbally abused and was unable to return to work in a role requiring face-to-face contact with white people.
Clegg may be right that the High Court would find “offend” and “insult” unconstitutional, as she suggests, but I’m not sure Robert French’s speech can be adduced as evidence.
French’s speech was the Birkenhead Lecture, given at Gray’s Inn, London, in November 2015 under the title of The Fine Art of Giving and Taking Offence. It is learned, entertaining and stimulating, but he specifically says it is not a legal review of the topic. It is not primarily addressed to 18C, which gets a brief mention at the end, or indeed to racial discrimination. There is far more in it about being historically rude to royalty, politicians and the legal profession. He goes into religious discrimination in some detail, but racial discrimination not at all apart from the reference to 18C.
The targets French talks about are the strong, not the weak, it’s more about individuals tilting at authority. He talks about that ‘judicial helper’, the average reasonable person, who in French’s examples seems always robust.
French, who retires at the end of this year, also gave a speech in August at the Samuel Griffith Society’s annual conference in Adelaide, the conference Tony Abbott opened with a regret that he didn’t knock out “offend” and “insult”. I can’t get a link, but if you Google Robert French speech Samuel Griffith society you should get it. There’s also an article in the Oz, Google Michael Pelly Robert French speech indicates he’s lukewarm on 18C.
I haven’t read the Adelaide speech, but it seems a cut down version of the London speech, with an introductory section linking it to Sir Samuel Griffith.
In Adelaide as well as in London French highlights the importance of context and reminds us that “the application of those tests to laws affecting offensive speech and expressive conduct necessarily requires evaluative judgments”. The law will not ultimately protect everyone, he says, and judges should “proceed with caution before making a finding that a legal prohibition on offensive behaviour had been breached.”
Pelly says 18C has never been tested in the High Court. The most recent outing on free speech in the Court was the Lindt Cafe killer Man Haron Monis, where court split 3-3 on whether Monis’s awful letters to the families of Australian soldiers was protected as political free speech. French was one of three finding for Monis, and has the reputation of being a free speech enthusiast.
French’s bottom line is unhelpful, indeed I think a bit inane. Pelly:
- The Chief Justice told the Samuels the law is a very unsatisfactory remedy for such disputes and that we’d all be better off with a little more courtesy and manners.
Too true, but it ignores the reality of our brutal political culture and the social media age.
Courtesy and manners. He gave the same advice in London. But this from him is a perceptive statement, albeit he says it’s anodyne and blindingly obvious:
“The debate about section 18C illustrates the way in which prohibitions on offensive speech and expressive conduct can sometimes lie at the interface of hotly contested and differing views about the proper limits of legislative intervention. Those differences tend to be rooted in different views about the kinds of harm seen as flowing from particular kinds of offensive speech.”
French also thinks politicians should be very clear when they intervene with legislation, which he has argued, I think, is virtually impossible.
“Kinds of harm”.
It seems to me that anti-18C campaigners are oblivious to the harm that can be caused by speech to those already fragile.
It is important, I think, to appreciate two points about how the HRC proceeds with complaints.
First, on receiving a complaint the HRC may seek further information and contact the repondent, seek their comment and any further information. At this point the HRC may decide not to proceed further, and will tell the complainant why.
Second, all they can do from that point is conciliate and seek resolution. Importantly, the Commission does not have the power to decide if unlawful discrimination has happened.