The Question of Truth and Section 18C by Andrew Joyce

Perhaps one of the most disturbing features of section 18C of the Racial Discrimination Act is the way the legislation by-passes the question of truth, whether the offending statement is correct.
Section 18C provides that

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.

The issue of truth doesn’t come up in section 18C. One may, for example make claims that group X are according to data, doing bad things Y, say crimes such as home invasions, or tax fraud. This could even be qualified statistically as “most X” or “ϕ percent of X.” But there will always be some member of X offended, insulted, humiliated or intimidated by the claim, even if true, as that would be a most inconvenient truth for their group interests.

It remains then for the weak section 18D to allow any free speech to occur, such as the investigations of bad things done by group X. Here this exposure must be in the public interest for academic, artist or scientific purposes, made “reasonably” and in “good faith”. These conditions would serve to chop down most of the hard-hitting critical material appearing on American websites, which do have free speech. Fringe views will be rejected as “non-academic” or “unscientific.”
It will be harder to reject works as being art, given what has passed for modern art, but no doubt it will be done.

Australian journalists have to tip toe through the mine fields of “reasonably” and “good faith,” terms so legally elastic that courts can define terms within such vast boundaries as to deliver whatever results they want.
Thus, a claim that say group X was engaged in certain crimes is simply assumed to be a contravention of the legislation – even though such a claim could be factually true and shown to be so. If this was made as part of a critique of group X, then it is likely that the “reasonably” and “good faith” conditions would fail to protect the political comment. An artistic work perhaps, employing rhetoric and critique, could well fail to be protected by section 18D, although there appears to be no cases on this. Many classic works would probably fail the section 18 D test.

Trusting in the common law tradition and parliament was a great error made by the Founding Fathers of your Constitution who did not look far enough down the track to see the need to put up some constitutional protections, or barbed wire, for freedom.  Having not fought a revolutionary war, they were too eager to stitch up an “enabling document” and get back to business. Of course our common enemies are working away to undermine America’s freedoms, primarily through stacking the Supreme Court, but very careful drafting could have slowed even them down. Our US constitution itself does not go far enough here because it does not specify that constitutional interpretation should be by “original intent,” not the politically correct “living interpretation.”

As an American visitor to Australia, I lament that you are burdened by such laws. Perhaps, in this age of the internet, if you do need to say certain inconvenient truths, you will need to do it anonymously in America, as long as it stays free. Think seriously about constitutional reform, adding free speech and right to bear firearms and weapons of self-defence clauses to your constitution. It is an important financial reform.