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Pub test is a kangaroo court for victims of racial hate

  • 14 March 2017


If you read The Australian you'll know not everyone is happy with Section 18C of the Racial Discrimination Act. It declares illegal any act 'reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people'.

The campaign against the provision has gained force from the untimely death of gifted artist and cartoonist Bill Leak, against whom a complaint was brought for a cartoon depicting an Indigenous father and son.

Some politicians and the newspaper itself want 18C abrogated or substantially amended. The most recent suggestion is that 'reasonably likely' should be defined as the judgment of reasonable Australians — a 'pub test'.

Other politicians and community groups want it left unaltered. And many politicians, notably Barnaby Joyce, just wish the issue would go away. Most onlookers are more curious about the reasons why the people who propose and oppose change are so passionate.

Those who advocate change usually argue that to limit free speech as 18C does is a dangerous infringement of individual freedom.

Many critics also display a strong commitment to the free market. For them the economy and so national welfare are served only by competitive individuals and companies pursuing gain free from regulation that will protect particular individuals or groups. It is unsurprising that the sections of the media most in favour of neoliberal economic settlement demand most strongly the repeal of 18C.

Those against change argue that minority racial and ethnic groups are entitled to protection from vilification, and that it is in the interests of the whole community to legislate to ensure that they are safe. They argue further that there is an imbalance of power between media and the individuals and ethnic communities that they choose to attack. Legislation that establishes boundaries is desirable.

This analysis suggests that the argument about 18C is only part of a larger dispute about the proper place of government in public life, and about how the individual's freedom of speech and economic activity may be subject to regulation in order to protect the common good.


"If the patrons after a long night's drinking are made the arbiters of what would reasonably offend, those offended will see the process as a kangaroo court."


In a perfect world, a case could be made against having such legislation at all. The risk inherent in focusing on the legality of abusive speech is that we shall be drawn away from asking what kind