August 13th 2016


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Articles from this issue:

COVER STORY Rating the ratings agencies: FFF and "Watch out"

CANBERRA OBSERVED Despite bumbling, youth detention inquiry is needed

FOREIGN AFFAIRS Erdogan's political coup will transform Turkey

SEXUAL POLITICS Transgender Olympians: what about the AFL?

EDITORIAL Marriage plebiscite: why not a referendum?

SEXUAL POLITICS Gay lobby grasps at normal and natural

MILITARY HISTORY The Western Front, 1916: our costliest theatre of war

MILITARY HISTORY Delville Wood, 1916: South Africa's Gallipoli

EUTHANASIA Disability hate crime: then the rest is silence

BRITISH POLITICS Tories push trans agenda hard in schools, prisons

TAIWANESE HISTORY AND POLITICS Fractious party puts Tsai in a pickle

MUSIC Davis biopic sadly miles off the mark

CINEMA Bourne again, but still lost: Jason Bourne

BOOK REVIEW An empire built on suffering

BOOK REVIEW Freedom of speech

POETRY

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BOOK REVIEW
Freedom of speech




News Weekly, August 13, 2016

NO OFFENCE INTENDED:
Why 18C Is Wrong

by Joshua Forrester, Lorraine Finlay and Augusto Zimmermann

Connor Court, Redland Bay, 2016
Paperback: 270 pages
Price: AUD$29.95

 

Reviewed by Christopher Brohier, barrister-at-law

 

No Offence Intended is a strong and scholarly critique of section 18C of the Racial Discrimination Act 1975 (Commonwealth).

Section 18C makes unlawful any act which is likely to offend, insult, humiliate or intimidate another person or group of people and which is done because of the race, colour or ethnic origin of the person or group. It is one of the “hate speech” pieces of legislation which stifle the common law right of freedom of speech.

Section 17(1) of the Tasmanian Anti-Discrimination Act 1998, which featured in the complaint made against Hobart Archbishop Julian Porteous, is another of the same genre.

The authors of No Offence Intended argue that section 18C is wrong in law and philosophy. In law because it is not supported by the external affairs power, as it goes beyond what may be “reasonably capable of being considered as appropriate and adapted to implement” the Convention on the Elimination of All Forms of Racial Discrimination, and because it impermissibly burdens the Australian constitutional implied freedom of political communication. In philosophy it is wrong because it is contrary to the Australian common law legal tradition and our liberal democratic heritage.

No Offence Intended, the authors frankly acknowledge, is primarily aimed at a legal audience and so it is not for curling up in front of the fire on a cold winter’s day, though I did read much of it on a winters’ eve. However, it is a thorough and important exposition of the legal and philosophical problems with legislation like section 18C.

Moreover it is a trumpet call for section 18C (and other such legislation) to be challenged as being unconstitutional. That is indeed currently occurring in the case of Prior v Queensland University of Technology – the case concerning the Queensland University of Technology students who were not allowed to use a computer lab at QUT that was reserved for Indigenous students.

The students have been subsequently sued by the QUT employee who refused them permission to use the lab, for about $247,000 for comments they allegedly made on social media about the incident. The QUT employee is relying on section 18C.

The book is particularly helpful as it summarises and analyses the concept of the implied freedom of political communication and discusses in detail a recent key case in relation to that freedom. It is therefore a useful resource for lawyers who may be relying on the implied freedom in challenging “hate speech” legislation as well as other intrusions into freedom such as exclusion-zone legislation, or legislation limiting freedom of conscientious objection.

It is also a convenient way for non-lawyers to gain an understanding of the implied freedom, something that is important for all who would seek to stand for truth and freedom in a postmodern culture such as ours.

The time has come for “hate speech” legislation such as section 18C and its relatives to be challenged in the courts. This book will be of significant assistance in these challenges. It is well researched and footnoted.

Well done to the authors.

Christopher Brohier is a barrister-at-law at Elizabeth Mews Chambers, Adelaide.


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