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Section 18C and unravelling the government’s ‘freedom agenda’

It is disingenuous for attorney-general George Brandis and the government to isolate Section 18C as the sole enemy to free speech. AAP/Stefan Postles

It is remarkable that the Abbott government has singled out one law, Section 18C of the Racial Discrimination Act, as stifling free expression, but has remained silent on other more draconian laws that limit speech in Australia.

Last week, attorney-general George Brandis told parliament that people have the right to say things that other people find insulting, offensive or bigoted. Brandis said that under the government’s curiously named Freedom of Speech Bill, which will repeal Section 18C in its current form:

Never again in Australia will we have a situation in which a person may be taken to court for expressing a political opinion.

These statements are deceptive. If we are to embark upon an honest debate about free speech in Australia, politicians should shift their attention to the multitude of laws that curtail insulting or offensive speech. These laws are much broader than Section 18C. These laws also provide fewer defences, and are far more punitive.

Laws across Australia

For example, in New South Wales, it is a crime to use offensive language in or near, or within hearing from, a public place or a school. The maximum penalty is A$660. This law is not used sparingly. Last year, NSW police recorded more than 4000 incidents of offensive language.

In the Northern Territory, South Australia, Tasmania and Victoria, it is a crime to sing obscene songs or ballads. And in Queensland, South Australia, Tasmania, Victoria and Western Australia, people are forbidden from using abusive, offensive or insulting words in a public place. The penalties range from a $6000 fine in Western Australia to six months’ imprisonment in Queensland.

The Western Australian law was used to curtail free expression in the recent March in March protests. Police reportedly asked just one protestor to remove his “Fuck Tony Abbott” T-shirt or be arrested. While the shirt may be crude, its sentiment was patently political: dissatisfaction with the government and its policies.

What is ‘offensive’?

Brandis has said that prohibitions on speech should be framed “as narrowly and cautiously as possible”. But offensive language crimes are framed broadly. The authoritative case of Worcester v Smith defines offensive as:

…such as is calculated to wound the feelings, arouse anger or resentment or disgust our outrage in the mind of a reasonable person.

There is no catalogue of words that are deemed offensive. Rather, offensive language is judged according to context and current community standards.

Police and the courts have tended to ignore racial epithets as constituting offensive language. Instead, they use offensive language crimes to target swear words uttered towards police, or in their presence (mainly fuck and c–t, or a combination of the two).

It doesn’t have to be this way. Offensive language crimes can theoretically target all manner of expressions, including verbal discrimination.

Community standards have shifted dramatically since Victorian times, when these laws were introduced to the colonies. The obscenities of today are not “four-letter words”, but instead slurs or stereotypes based on ethnicity, race, religion, sexuality and gender.

History has demonstrated the harms that can flow from verbal stereotypes and discrimination. But parliament has never provided credible evidence to justify criminal punishment for swearing. Instead, politicians cite imagined ideas about declining standards of civility and dirty words polluting clean spaces, or tainting the purity of women and children.

Offensive language crimes are disproportionately used against Indigenous Australians and other vulnerable groups. One such Indigenous Australian was Melissa Jane Couchy who, on one morning in September 2000, was wandering the streets of inner-city Brisbane. Couchy was intoxicated, homeless and disoriented. She was approached by a male police officer, who asked if she wanted to go to “the compound”.

Couchy told the officer: “Sarge, the compound is for fucking dogs.” A female police officer then asked Couchy to state her full name and address. Couchy replied “you fucking c–t”.

She was arrested for using insulting language and received a sentence of three weeks’ imprisonment. Her appeals to the Queensland Court of Appeal and to the High Court were rejected.

It is disingenuous, then, for the government to isolate Section 18C as the sole enemy to free speech. The government should stop heralding our rights to be bigots and instead be upfront about the state of free expression in this nation.

Free speech is not an absolute right in this country. As the High Court reiterated in 2013, we have only an implied freedom of political communication. It operates not as a “right”, but as a “restriction” on law-making.

The implied freedom of political communication is also somewhat ineffectual, as evidenced by laws under which thousands of Australians are fined or imprisoned for using offensive or insulting language each year. A genuine discussion about free speech should interrogate the operation of all offensive language laws, not just Section 18C.

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