The recent Federal Court finding that Pauline Hanson contravened section 18C of the federal Racial Discrimination Act is a reminder this provision remains an unwarranted restriction on freedom of speech in Australia.

This is not a criticism of the judge who heard the complaint brought by Greens senator Mehreen Faruqi against One Nation Senator Hanson because he was obliged to act on the law as it sits on the statute books. Nor is it a criticism of Senator Faruqi, who is entitled to rely on an existing law. This is, however, a law that should never have been enacted.

What section 18C does is to make unlawful statements that offend, insult, humiliate or intimidate an individual or group in the community where the statements are made because of the race, colour or national or ethnic origin of the individual or the group. The problem here is that the provision almost inevitably targets the expression of political opinions. No one is suggesting public debate should routinely be conducted by way of offence and insult but sometimes it involves robust exchanges that some participants might find offensive or insulting.

It should be noted section 18C is not necessary to deal with incitements to violence against individuals or groups. That has always been an offence under the common law and there is a specific statutory offence in the Commonwealth Criminal Code of urging the use of force or violence towards another person or group on the basis of race, religion or national or ethnic origin. Nor is section 18C necessary to protect the reputation of individuals against false allegations of misconduct such as corruption or dishonesty. This is done by the law of defamation, which provides a remedy of damages in these circumstances and operates in every state and territory.

Once, however, these kinds of statements are put to one side because they are the subject of criminal or civil liability, most other restrictions on what can be said or written are inevitably aimed at the expression of political opinions. No doubt those opinions may sometimes be outlandish or offensive to some, perhaps almost all, members of the community. One such opinion, for example, is the denial that the Holocaust was carried out by the Germans in the 1930s and '40s. This is an absurd and offensive proposition and not only to Jewish members of the community but it is a political opinion. It has, however, been the subject of proceedings under section 18C in the Federal Court in the past, again illustrating the problem at the heart of this provision.

The real test for the value of freedom of speech only starts when there are voiced political opinions that most, perhaps almost all, members of the community find seriously offensive. This was the point made by American jurist Oliver Wendell Holmes in a judgment of the US Supreme Court in 1919: “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to fraught with death”. What he was saying was that once political opinions that do not advocate violence are outlawed, there is no reason any unpopular view should not be subject to the same treatment.

The complaint against Senator Hanson arose out of an exchange when Senator Faruqi described the late Queen Elizabeth II as “the leader of a racist empire” and Senator Hanson responded that Senator Faruqi should “piss off back to Pakistan”. It is something of an indictment of section 18C that this brief exchange resulted in a hearing of almost a week in the Federal Court and a judgment of 91 pages.

It is sometimes said by the defenders of section 18C that it is necessary to protect individuals and groups against “hate speech”.

But, as already noted, genuine hate speech, in the form of incitements to violence, is and has always been an offence under the criminal law. There is a temptation, when someone is confronted with a contrary political opinion, to describe it as “hate speech” on the basis that one's own strongly held views have been rejected. But this kind of heightened sensitivity can hardly justify legislation that makes it unlawful to express a contrary political opinion.

In 2017 the Turnbull government tried to amend section 18C to deal with some of these problems but the proposed changes were rejected by the Senate, where the government did not have the numbers. What is interesting is that not a word in support of the amendment attempt was heard from bodies such as universities and civil liberties organisations, which might be thought to place some value on freedom of speech.

Since the Enlightenment freedom of speech has been at the heart of Western civilisation but there are many who do not want real public debate on political issues and there is a constant danger in modern Australia that this most important of values will be further eroded.

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