Section 18C, ABC Fact Check and the 'ill-informed' Attorney-General

The ABC Fact Check "investigation"

The flawed starting point of the investigation is this affirmative statement:

Causing offence in federal and state laws

There is a range of laws in Australia that stop people saying or communicating things that other people find offensive. Four examples follow. . .

The investigation team had regard to four statutory provisions for the suppression of "offensive" speech, and referred to interviews of two professors of law whose enthusiasm for so-called "hate speech" prohibitions (such as s 18C of the RDA) is well known.

There is nothing in the ABC report (which includes a summary video presentation) which suggests that the investigation team obtained or sought to obtain or considered obtaining an assessment from a member of the academic legal community or the legal profession who might have proffered a different view about the "correctness" of the impugned statement.

It seems that the Attorney was not asked for his response to the question being investigated.

Ironical missteps

The unambiguous use of the words "stop" and "find" indicated that the investigation set out to contradict the Attorney. The result was that, taking both the Attorney's impugned remarks and the ABC report at face value, the report managed both to prove the truth of what the Attorney had stated was the law and, necessarily - if "ill-informed" is given its ordinary meaning – to demonstrate that, instead, it was the "verdict" which was "ill-informed".

For devotees of postmodernism, this is high-level irony.

First, there is nothing to suggest that the investigators alluded to the need for precision. The Attorney used the word "rights" – plural. This alone should have alerted the investigators.

The question "Do Australians have the right to free speech?" was raised in the report, but it was the wrong question because it was so open-ended. It could only be answered along the following lines, "Yes, to an extent" or "To an extent, No".

Secondly, the investigation could only be satisfactorily undertaken by posing a precise question along the following lines, "Does the law in Australia concerning "offensive" and "insulting" speech confer or permit a right (a) to be a bigot; (b) to say bigoted things, (c) to say things that people find offensive?"