Why Section 18C can’t cut it in the High Court

Why Section 18C can’t cut it in the High Court, by Gary Johns.

Section 18C of the Racial Discrimination Act would not survive a High Court challenge. This is the confronting, comforting and annoying conclusion of a study by legal academics from Murdoch University.

Confronting because I cannot recall another academic lawyer make the case. Perhaps they felt it was better to roll with the victim crowd. Comforting to know there is a remedy to idiocy. Annoying that not only has no one taken it to court, but also that relying on the court’s interpretation is risky. The court may entrench idiocy.

The authors of No Offence Intended: Why 18C is Wrong are unlikely to receive any invitations to a grievance industry soiree. They are quite firm in their conclusion that section 18C is wrong. It is wrong in law, which is to say it is not constitutional, and it is contrary to Australia’s common law traditions and liberal democracy.

Book cover

18C overreaches and is unbalanced:

[18C’s] prohibition of offensive, insulting and humiliating acts “greatly overreaches” the obligations under the [UN’s International Convention on the Elimination of All Forms of Racial Discrimination], and fails to balance freedom of expression, which is expressly guaranteed under the convention. …

18C is anti-democratic to boot:

Section 18C is not compatible with representative and responsible government because Australians who under the Constitution are “the people in which sovereignty ultimately resides and from whom Australian parliaments derive their authority, must be able to fully, frankly and robustly discuss controversial government and political matters, including those involving race, colour, ethnicity or nationality. Such discussion may involve employing language that some (or even most) find offensive, insulting or even humiliating.”

We all know what group this was really about:

Those seven (not so) Liberal members from Sydney who, fearing “ethnic” voters, pressed Tony Abbott to break his promise on 18C should hang their heads in shame.