by David Leyonhjelm
I recently lodged a complaint under section 18C of the Racial Discrimination Act in response to an article written by the journalist Mark Kenny.
What he wrote was unlawful under that section. My objective, in lodging the complaint, was to show that the law needs to change. It should not be unlawful to call me or anyone else rude names, whether or not our feelings are affected.
The basis of the complaint is that Kenny said I demonstrated “certitude” as a consequence of being an “angry white male”, I was a “rank apologist for the resentment industry” and a “hate speech apologist”. Since 18C makes it unlawful to offend, insult, humiliate or intimidate another person because of their colour, and white is a colour, this is sufficient to make it unlawful.
Kenny also described me as “gormless”, “boorish, a supercilious know-all with the empathy of a Besser block”, “wacky”, a “self-promoting misanthrope” and subject to “infantile reasoning”. These were not as directly attributed to my colour and so might not be unlawful.
A great deal of commentary was prompted by the complaint, from both sides of politics. Much of it has been poorly informed and indicates that many people have a poor understanding of the meaning of free speech. As a consequence, they cannot understand why 18C should go.
One commentator claimed that section 18D of the same act provides a defence of fair comment, which I was ignoring. I agree fair comment is a well-recognised legal concept, but in my opinion Kenny’s remarks about me were outside the court’s narrow interpretation of ‘fair comment’.
I was accused of engaging in a stunt. This discounts my libertarian beliefs. In the last parliament I co‑sponsored a bill to remove “insult and offend” from 18C, and have done the same this parliament. Yesterday I introduced a bill to repeal S18C entirely, and I will be introducing bills to repeal constraints on free speech in other legislation.
Some suggested my complaint will fail because I was not offended. This overlooks the fact that offence is not required for a comment to be unlawful. All it requires is to be “reasonably likely” to offend.
Racist reasoning
Perhaps the most interesting comments were from those who applied racist reasoning. One was the suggestion that 18C is not meant to be used by white males like me, but is for the benefit of minorities. This is pretty much the point of Kenny’s article – as a white male (like Kenny), he suggests I have not lived with “entrenched discrimination” and therefore have nothing to complain about.
Another was the interviewer who suggested that without 18C there would be unchecked racial vilification leading to increased mental illness in non-whites. Non-whites, it was implied, are more susceptible to mental illness than whites.
There were also those who viewed my annoyance at the ABC’s The Chaser team accosting me outside my house with homophobic slogans as indicating my hypocrisy regarding free speech. This is a concern, as it is based on the misconception that free speech requires a willingness to listen or even approve of what is said. That is not the case; just as blocking someone on Twitter or Facebook says nothing about free speech, free speech imposes no obligation to listen. Indeed, the only obligation is to refrain from inhibiting it from being said.
A comment I take more seriously is the suggestion that racial vilification will increase if it is not suppressed via laws such as 18C. This relies on a Hobbesian view of the world, in which humans are only saved from perpetual war by laws and strong government. It is also misguided. Just as the law does not oblige us to say please and thank-you, neither does it need to prevent us from insulting each other.
Furthermore, to the extent that racist attitudes are present in society, it assumes these will change if it is unlawful to express them. This is false; unless it can be heard and robustly challenged, racism will simply be driven underground.
If the Human Rights Commission upholds my complaint, it will reinforce my claim that 18C is ridiculous and should not exist. We do not need the law to protect our feelings from insults.
If my complaint is dismissed because the colour being abused was white, it will show that 18C is inherently racist and similarly should not exist. All Australians must be equal before the law.
David Leyonhjelm is a Senator for the Liberal Democrats
First published in the Australian Financial Review
