“He who dares not offend cannot be honest.” Thomas Paine.

Thomas Paine was one of the founding fathers of the American Revolution. For his efforts to secure liberty for people living in America and France, he faced summary arrest in Britain and spent almost a year in prison in Paris.

Pauline Hanson is the only serving Australian politician who can personally relate to that experience. For her efforts to promote equality among all Australians—for daring to say what many Australians strongly believed—the nation’s political establishment launched a campaign of persecution that saw her spend a few weeks in prison before she was acquitted on appeal.

Paine would be disgusted at the state of civil and political discourse in both America and Australia today. He would lament that hard truths are being silenced for fear of what might happen to the person who utters them.

Paine would cry that the law and the courts were being deliberately and methodically weaponised against those who would speak these hard truths. He would admonish Australia over a law that facilitates this persecution over free speech: the Racial Discrimination Act 1975, specifically Section 18C introduced by the Keating Labor Government in 1995.

Many legal experts—lawyers, judges, and even former High Court justices—have expressed misgivings about Section 18C.

The language is highly subjective, making it unlawful to do a public act if that act is reasonably likely to “offend, insult, humiliate, or intimidate” a person or group of people because of their race, colour or national or ethnic origin. That’s one of the obvious problems with it: what offends, insults, humiliates, or intimidates one person does not necessarily do the same to another person.

Of greater concern is the section’s limitations on the implied freedom of political communication in the Australian Constitution and how it’s been weaponised to restrict this freedom or simply assuage hurt feelings with a payout. Let’s never forget the Australian Human Rights Commission literally solicited 18C complaints over a newspaper cartoon—not because it was necessarily a breach of 18C, but because some of the commissioners were personally offended and wanted to punish the cartoonist.

Section 18C rests in part on Article 4 of a United Nations resolution, the International Convention on the Elimination of All Forms of Racial Discrimination, but crucially this article says absolutely nothing about speech that offends, insults, humiliates, or intimidates.

You don’t have to wonder why an 18C case hasn’t reached the High Court: those who love weaponising 18C to shut down political dissent don’t want it to be ruled unconstitutional. We think it’s inevitable this anti-free speech law will eventually be tested, and that will be a very interesting day.