August 11, 2014

Horse 1732 - 18C Stays - Good!

Last week Prime Minister Tony Abbott announced that his government was going to drop its policy of trying to amend or repeal section 18C of the Racial Discrimination Act 1975.


Personally, I think that the only reason that any policy to change the provisions of 18C was ever pursued in the first place was because one of the Liberal Party's friends, Andrew Bolt, was found guilty of breaching the act. The solution is simple, if you don't like the law, repeal the act.
If Andrew Bolt had never been charged (or had never written his piece which caused him to breach the law in the first place), then I seriously doubt whether is would have even caused a blip on the radar at all. After all, the law had sat quietly for 36 years without anyone even saying "boo".
I also read in various newspaper that people had threatened to cancel their membership of the Liberal Party because this had been dropped. Who are these people? They were never specifically named; which makes me wonder if they even existed at all.

The existence of 18C it is argued, impinges on the right to free speech. This also opens up a tirade of indignation, complaining that Australia doesn't have a bill of rights (despite the fact that we have two in legal operation and possiblt three, being the Bill of Rights Act 1689, the Scottish Claim of Right 1689 and the  Universal Declaration of Human Rights 1948 - see Horse 882) and that free speech should be protected.
There is an inconvenient truth behind this though, in that the argument that 18C impinges on the right to free speech is one hundred percent correct. It is supposed to. That is the point of law.

Law exists for the regulation, standardisation and protection of society.
Standards exists for instance, to do with cabling and wiring inside peoples' houses to ensure that your house doesn't burn down because of an electrical fire. Real Estate laws exist to enable the proper transfer of property, to ensure that claims over parcels of land, real property and strata holdings aren't argued about later. There are environmental laws which are designed to ensure that our water is fit to drink and the air is fit to breathe.
Law by its nature does curtail people's rights. Law exists for the grand intent to try and protect people from being hurt.

Let's revisit one of my favourite cases in Australian law:
"'Free' in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law."
- James vs Commonwealth of Australia 1936

Australia inherited Common Law principles from Great Britain and under those principles, one of the basic assumptions is that peoples' rights are unlimited unless hedged in by law. You are free to do pretty much as you like unless there is a law which specifies otherwise. The exercise of peoples' rights though, should not give rise to the wanton hurt of other people.
The right to bear arms (which was codified in the Bill of Rights Act 1689) is hedged in in New South Wales, by the Crimes Act 1900. The right to bear arms does not and should not give rise to the right to stab, shoot, hit or kill people.
The right to free passage, ingress and egress, is hedged in in New South Wales at least, by the Inclosed Lands Protection Act 1901. The right to go wherever to go where ever you feel like, does not and should not give rise to the right to walk into someone's house and sit on their sofa.
The right to drive a motor car is hedged in in New South Wales, by the Road Transport Act 2013. The right to drive a motor car does not and should not give rise to the right to drive like a hoon where ever you feel like.
To expand on that last point, if the speed limit is 80km/h, you still have the freedom to drive at 72km/h, 78km/h, 31km/h, 4km/h, or any speed you like, provided that you don't exceed that limit. People would find it hard to argue that speed limits, or even the white line down the centre of the street radically impinges on their right to drive a motor car. In fact, it does precisely the opposite. It ensures a safe environment to do so; if you want proof of this, just think about all of the journeys you've made where nothing of interest happened at all.

Section 18C of the Racial Discrimination Act 1975, specifically hedges in the right to free speech, by defining where the exercise of that free speech is likely to hurt someone.
Offensive behaviour because of race, colour or national or ethnic origin
(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 of some or all of the people in the group.
- Racial Discrimination Act (1975), Section 18C

George Brandis the Attorney-General should as the chief law officer of the Commonwealth of Australia should of all people have been aware of what 18C was trying to achieve. When he infamously said that people have the right to be a bigot, that may have been true but what was never adequately explained by him, is why there is benefit to society in expressly offending, insulting, humiliating or intimidating another person or a group of people, on the grounds of  race, colour or national or ethnic origin.
As I was writing this on the train, I looked up and came to the conclusion that there was probably at least one person from six of seven continents on the train with me (I don't know how many people have ever been born in Antarctica). If I was to stand up and expressly offend or insult people on the grounds of  race, colour or national or ethnic origin on the train, even if 18C didn't exist, I'd think it perfectly justified that lots of people should be very angry with me. What benefit is there in making enemies of people?
I think that demanding the right to hurt someone on these grounds is akin to demanding the right to walk into peoples' houses, thus trampling the law of trespass; akin to demanding the right to drive at 180km/h through the streets; akin to demanding the right to stab, shoot, hit or kill people.
Okay, so maybe that's indulging in hyperbole but the question still stands as to who are these people who are demanding the right to do as they please and deliberately hurt people?

One of the paradoxes of living in a "free" society is that we are not actually absolutely free to do as we please. Rights can and should be hedged in by law because none of us ever truly are and those of us who think that we should be, often prove by their actions that we probably shouldn't be.

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