Can speech be limited to protect liberal values? Australia's debate rages.

A 1995 Australian law sacrificing freedom of speech to defend multiculturalism and ethnic harmony is under renewed fire from conservatives.

Mark Graham/AP/File
Australian Aboriginals have suffered historical discrimination. A law banning language that offends or insults them is part of efforts to make amends.

When Donald Trump announced his candidacy for US president with a speech decrying Mexicans as rapists and drug smugglers, he faced a deluge of condemnation and public disavowals from some of the biggest names in the corporate world.

In Australia, his words would very likely have landed him in court, facing prosecution for racial discrimination.

“I don't think there would be any doubt that Trump's ‘rapists’ speech would land him in legal trouble in Australia,” says Lorraine Finlay, a lecturer at Murdoch University School of Law in Perth.

Australia has none of the far-reaching speech protections offered by the 1st Amendment to the US Constitution.

Instead, it has chosen to enact an illiberal law – restricting freedom of speech – to defend a liberal value – multicultural harmony – in a country where more than a quarter of the population is foreign-born and an Aboriginal minority remains severely disadvantaged.

That could all change, however, as conservatives launch a new broadside against Section 18C of the Racial Discrimination Act, which currently makes it unlawful to “offend, insult, humiliate or intimidate” a person because of their race or ethnicity.

Legislating political correctness?

The highly charged debate has touched a raw nerve in a country with a history of official racism. Aboriginals were given the vote only in 1962, and Australia restricted non-white immigration until 1973.

The argument over free speech has also taken on a new edge with the unprecedented success in recent elections of the far-right One Nation party, which is both anti-immigrant and anti-Muslim. The party is a vocal proponent of scrapping Section 18C

Introduced by a center-left government in 1995, the law followed several national inquiries that shone a damning light on racial discrimination in Australia.

But Section 18C has never found sympathy among Australian conservatives, who see it as imposing repressive political correctness. Now a group of right wing members of parliament have seized on a controversial court case to fuel a renewed attempt to overturn the law.

The case pits three white university students against an Aboriginal administrator who has accused them of inflicting “offense, embarrassment, humiliation, and psychiatric injury.”

After administrator Cindy Prior asked Alex Wood to leave an indigenous-only computer room at Queensland University of Technology (QUT), which was not marked as being restricted to Aboriginals, the engineering student vented his frustration online.

“Just got kicked out of the unsigned indigenous computer room,” Mr. Wood wrote on Facebook in 2013. “QUT stopping segregation with segregation?”

“I wonder where the white supremacist computer lab is,” a second student chimed in.  A third then allegedly wrote a remark using a racist epithet, a remark he has strenuously denied making.

More than three years on, Ms. Prior is in the process of suing all three students and the university under Section 18C, alleging that the incident was so traumatic she has not been able to return to work. She is seeking almost $200,000 in damages.

That prompted Cory Bernardi, one of the government’s most conservative senators, to introduce a bill last month to cull the words “insult” and “offend” from the law. He has won strong support from fellow parliamentarians in the ruling center-right Liberal party, and from a number of independents.

A month earlier, David Leyonhjelm, an independent senator from New South Wales, made a headline-grabbing stand against the law by lodging his own Section 18C complaint after a prominent political correspondent dubbed him an “angry white man.”

Mr. Leyonhjelm, a self-described libertarian who espouses a mix of social liberalism and free market ideology that is rare in Australian politics, said his stunt was designed to “highlight the absurdity of the law.”

Free speech, up to a point

Liberals, however, have overwhelmingly come down on the side of protecting minorities, even if that means censorship.

“What is it that people are bursting to say that they can't say now because of 18C?” wonders Richard Ackland, a journalist and legal commentator. “No one has explained that.” 

He sees the clamor for reform as demanding “liberation for bigotry.”

But behind the politics, says legal expert Ms. Finlay, lies a cultural peculiarity.

“Everybody in Australia likes free speech in principle,” she says, “but actually being prepared to stand up and defend people you don't like – that becomes a much harder thing to do. And I don't think we have the same robust tradition that America does of separating out the like for the principle of freedom of speech and the like for the person who may be saying things we detest."

Prime Minister Malcolm Turnbull, considered a moderate liberal, seems to want the whole issue to go away. After a bruising election that left his government with a one-seat majority, Mr. Turnbull has said changing the law is not a priority.

That suggests the sparring will continue. “This debate is not going to wither away for the simple reason that Section 18C is not going to wither away,” says Chris Berg, a senior fellow at the pro-free market Institute of Public Affairs, which strongly favors changing the law.

“We are going to keep getting new cases; we are going to keep getting new controversies” he predicts.

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