Hi Graham & David,

I agree that group rights and individual rights are incompatible. One problem is that the notion of 'group' is incoherent: it boils down to somebody, often self-appointed, being the spokesman for a 'group', and simply imposing his/her own views on the rest of society as the authentic 'group' view. There is usually no such thing.

For example, Indigenous people - at least in the observations of this non-Indigenous person - are extremely diverse in pretty much every way. Even defining who is one, may be contradicted by somebody else. This probably one reason why it has been so difficult, ever since the days of the National Aboriginal [Indigenous] Consultative Conference [NACC] back in 1973, and up through ATSIC and the current manifestation, to find common ground.

The unfortunate upshot of all that has been that hot-shot elites can presume to speak for 'the people'. I recall one time when I was discussing 'community' needs with a self-chosen spokesperson who kept declaring that the 'community' wanted this or supported that, when it was clear that it was only her own aspirations. [Actually, I think some of those self-appointed 'leaders' DO think that they speak for the 'community', but nobody ever asks it].

The major problem with subsuming everybody under the same [i.e. the elites' ] tarpaulin is that individuals are denied the right to choose their own destinies: policies are designed (by the elites) which may promote the interests of the elites but ignore their legitimate aspirations, leaving them with the only option, i.e. to distance themselves from the people'.

Of course, realities in a diverse society mean that any illusions about group solidarity and unanimity are pretty futile: in a relatively free society like Australia's, people can usually do what they like in relation to being dictated to by some jumped-up self-appointed 'leader'. So paradoxically, governments' recognizing only those self-appointed 'leaders' inevitably leads to a fragmentation of that population.

Joe

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Dear Graham,

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An excellent, well-documented article in support of the Prime Minister’s proposed amendment to article 18C of the Racial Discrimination Act.

Though you do not mention it in your article, I am sure you are aware of the results of the latest Essential Report poll indicating that 45% approve of changing the Racial Discrimination Act and 34% oppose changing it.

As you do not state your own position clearly, I am wondering if you maintain the recommendation you made in your submission to the Parliamentary Joint Committee inquiry last December - to remove 18C from the Act entirely.

Whatever the case, my personal vision of the problem is quite different. I thoroughly agree with all the facts and evidence you provide. I also share the Prime Minister’s diagnosis of the need to find the right balance between the protection from racial vilification on the one hand and the right of individuals to freedom of expression on the other. However, in my view, the former is fine. The problem is the latter. Our freedom of expression is not sufficiently protected.

Australia is the only democratic country in the world without a Bill of Rights. The problem is that some rights are protected at the federal level, including 18C, but there is no specific law, similar to the Racial Discrimination Act, that provides strong general protection for freedom of expression. The result is that those rights that are protected take precedence over any consideration for freedom of expression.

All those well-documented facts and evidence you so rightly cite in your article attest to the lack of effective, comprehensive protection for freedom of expression in Australia.

Without realising it, most of us mistakenly think that we live in a free, democratic society.

The most effective solution would be for our our political leaders to take their courage in their two hands and install an entrenched bill of rights in our national constitution – which can only be achieved by referendum. Regrettably, of the 42 constitutional referendums since federation in 1901, only 8 have passed.

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The rejection by the Senate last night must have come as a bit of a disappointment, not only to the Prime Minister and the Attorney-General, but also to many of our compatriots who felt it should be adopted.

It was, nevertheless, a wise decision. Watering down 18C would have created more injustice than the one it was designed to fix. Even the Deputy Prime Minister and leader of the Nationals in the coalition government criticised the Liberal Party for catering to its fringe "extremities".

In the end, it all turned out to be “much ado about nothing”. The problem remains and, as has just been clearly demonstrated, there’s no quick and easy fix to it.

That’s the end of the story, I’m afraid, so far as the present coalition government is concerned - given the opinion of the Deputy Prime Minister on the matter - but, it’s probably just as well.

I feel a bit sorry for Malcolm Turnbull, though. He seems to be a fairly decent sort of bloke and, apparently, was quite sincere in thinking it was a good solution.

Who am I to criticise him - despite the fact that, as I indicated in my previous post, there was never any doubt in my mind that what we really need is an entrenched bill of rights (including the right of freedom of expression) in our national constitution.

Hopefully, our future political leaders will grant us the opportunity of voting on a much needed, entirely new, constitution shortly after we vote on a republic, having observed a respectable delay following the end of the reign of our dearly-revered Queen Elizabeth II.

Until then, I guess we’ll just have to be patient and bungle along as usual with all those regrettable inconveniences of an imbalanced 18C - that restrict our freedom !

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Dear Banjo Patterson,

I don't quite understand how 18C of the Racial Discrimination
Act restricts our freedom when Section 18D of the Act provides
exemptions. It states that 18C does not render unlawful anything
said of done reasonably and in good faith for various
purposes, including artistic work and responding on events or
matters of public interest.

Dear Foxy,

Sophisticated racists can cloak their prejudices in polite language or produce rationalisations which will free them from prosecution through 18d. The unsophisticated poor devil on the edge of nothing will generally be the only kind of person 18c can touch. It is class legislation. It would be better to have a fairer society including better public schools so there are fewer poor and ignorant than to have 18c which shuts up the poor and ignorant.

Australia has other mechanisms protecting the powerful from criticism. Jo Bjelke-Petersen used the threat of Defamation action to shut up people who might criticise him.

Discrimination in housing, employment and other areas should be forbidden by law and our law enforcement bodies given the training and encouragement to enforce such laws. Acts such as discrimination should be forbidden by law, but speech should be distinguished from acts and given maximum freedom.

Free speech can point out the flaws in our society and gives those on the margins the right to voice their discontent in the manner they choose. It is too valuable a right to limit its application except when it provokes a clear and present danger.

Dear david f,

Thanks for that. Your post was by far the best argument I’ve seen against section 18C. It was an interesting approach, too, given that what you suggest as a replacement to 18C (which would work) are certainly not the kinds of alternatives that one would see coming from your typical anti-18C advocate.

They’re “communist”, after all!

You (understandably) have a very American approach to freedom of speech (which has been criticised in our High Court as “semi-absolutist”), so I’m curious: what do you think of the inability, under American constitutional law, for politicians to legislate against the offensive, disrespectful, and disrupting actions of the Westborough Baptist Church (many of whom are constitutional lawyers themselves, and are always threatening law enforcement agencies with legal action)?

Personally, I think it’s unfortunate that the hands of lawmakers in the US are tied, in that case, by the US constitution’s guarantee to freedom of speech, and see this as an argument against a bill of rights for Australia.