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Support Senator Brandis & Free speech – last day to act!

George Brandis

Public submissions into the proposed amendments of section 18C of the federal Racial Discrimination Act close on the 30th April – tomorrow.

It would be 5 mins well spent if you care to log onto the website HERE

– to have a quick look at the proposal, and click on the email link:


– and say something to the effect that you support the Attorney-General’s attempts to defend free speech for all citizens, and his intention to remove the laws that stopped Andrew Bolt discussing some matters of public importance just because some other citizens felt “offended”.

Don’t underestimate the importance of a show of support from constituents. Even a very few lines will add your democratic weight to this vital initiative by the Attorney-General.


For the record, I have just sent this:


Consultation on the Racial Discrimination Act, Section 18C


Reasons for rejecting laws that intimidate free argument on matters of public importance

Free speech, meaning free public argument, is at the heart of a mature self-governing society. It is not a partisan issue: as Canadian writer Mark Steyn has said:

“Free speech is not a left-right thing; it is a free-unfree thing”. 

This is the freedom by which we argue for all our other freedoms, and without it we are intimidated in thought and action. 

Nor is this a new idea: four hundred years ago the poet John Milton pleaded with the British Parliament not to enact laws that would prohibit the publication of certain opinions. His address ended with the declaration:

“Give me the liberty to argue freely according to conscience, above all liberties”.

Therefore I applaud the Attorney-General’s principled stand in defense of this core liberty – “to argue freely according to conscience” – and I support the underlying principle of his proposed reform, namely:

“Laws which are designed to prohibit racial vilification should not be used as a vehicle to attack legitimate freedoms of speech.”

While noting the limited scope of this consultation into the federal RDA, the same principle should be applied to state and federal laws designed to prohibit ‘vilification’ on other grounds, such as religion and sexual orientation. These laws have also been used in Australia as vehicles to attack legitimate freedom of speech (meaning “free argument” on matters of public importance)- as in the case of the two Christian pastors in Victoria who ‘offended’ some Muslims, or my own minor case in 2011 when an article of mine in a Courier Mail forum ‘offended’ a gay activist. Both cases were thrown out, but only after considerable time and expense was incurred by the pastors in particular – confirming that “the process is the punishment” with these odious laws, even when the accused are entirely innocent and the speech is entirely relevant to matters of public importance. 

So I write as somebody who understands that the effect of all such laws is to censor one side (typically the ‘conservative’ side) of public argument on certain sensitive topics, thereby limiting public discourse to that deemed acceptable by ‘progressive’ judges or human rights commissioners.

Such laws must be resolutely rejected by free-minded men and women.


Strengths & weaknesses of the proposed amendment

I respect the compromise being pursued in this draft amendment, although I would prefer (for three reasons) that all such laws be repealed in their entirety:

(a) First, because such laws are unnecessary:

i. The existence of laws against defamation and incitement to violence are sufficient to cover speech that causes harm or threat of harm.

ii. The court of public opinion is sufficient to condemn racist speech, without resort to thought-police and judges: for example, consider the public humiliation of the 13 year old girl who abused Adam Goodes at a football match last year. Arguably that was an excessive and merciless humiliation, but it demonstrates the effectiveness of free public argument in dealing with such offensive speech.

(b) Second, because such laws that censor public discussion are unworthy:

i. A free market of ideas is the life-blood of a dynamic society, and the free market mechanism of robust public argument about any and every idea (including the public trashing of worthless ideas) is the open and democratic way for a self-governing society to proceed.

ii. Government censorship of which ideas may or may not be debated in public transfers power from the people to whichever political elite is in charge of defining “unacceptable opinion”, and that is to give the State undue power. No free citizen should accept government imposition of approved attitudes. We should claim ownership of the essence of democracy, which Aristotle defined as:

“Free citizens deliberating this question: how shall we order our lives together?”

(c) Third, because this proposal to raise the threshold for prosecution from feeling offended” to feeling “vilified / hated” will be unsuccessful in preventing the abuse of these laws:

i. Those individuals who silenced Andrew Bolt because they claimed to feel “offended” can just as earnestly declare they feel “hated” under the new definition of vilification, and off they go again to court.

ii. The standard of judgment being “an ordinary reasonable member of the Australian community” is not a secure restraint on vexatious claims of “feeling hated”. In the Bolt case, the judge (surely a “reasonable member of the Australian community”) countenanced comparison of Bolt’s arguments with the Nazi racist mentality. Such readiness to construe fair-minded public argument as something monstrous suggests it would be easy enough for a plaintiff’s grievance to achieve the threshold of “feeling hated”. So will anything secure be achieved by the proposed amendment? 



The only restriction on free public argument should be our existing laws against defamation and against incitement to violence.  Beyond that, there is no need for additional “vilification” laws in a free and self-governing society, and all such laws federal and state should be repealed.

What then of ugly-minded bigoted speech? While we have, pace Senator Brandis, no right to be a bigot, we certainly have the liberty to be a bigot, and we have the equal liberty to condemn those who are bigoted. That is free speech, an effective if somewhat rough mechanism – but a free society is a fairly rough enterprise. Democracy is unavoidably rough around the edges, but is surely preferable to smooth servility.

Having stated my preference, I accept that it is not the intention of the government to repeal these sections of the RDA.

Therefore, as an optimum compromise, I would recommend that the two clauses dealing with “vilification” be deleted from this draft amendment.

That is because the provision in this draft for the restriction on grounds of “vilification” (meaning the incitement of “hatred”) is hopelessly subjective and open to the same vexatious misuse as existing provisions against feeling humiliated / offended / ridiculed.    


  • to vilify another person or a group of persons;
  • vilify means to incite hatred against a person or a group of persons; 

     The rest of the draft would be limited to a prohibition of speech that threatens physical harm, and would look like this:


    The Racial Discrimination Act 1975 is amended as follows:


    Section 18C is repealed.

    Sections 18B, 18D and 18E are also repealed.

    The following section is inserted:


    1. “It is unlawful for a person to do an act, otherwise than in private, if:

    the act is reasonably likely:

    to intimidate another person or a group of persons, and

    the act is done because of the race, colour or national or ethnic origin of that person or that group of persons.


    For the purposes of this section:

    intimidate means to cause fear of physical harm:

  1. 1.       to a person; or
  2. 2.       to the property of a person; or
  3. 3.       to the members of a group of persons.

Whether an act is reasonably likely to have the effect specified in sub-section (1) is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.

This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”


Thank you for the opportunity to contribute to this important consultation.

Yours faithfully,


Dr David van Gend.



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