The current consideration by the Australian Human Rights Commission of a complaint by Green Senator Mehreen Faruqi against fellow Senator Pauline Hanson is a reminder that Section 18C remains a source of contention in the debate in Australia over freedom of speech.

The complaint arose out of an exchange where Senator Faruqi described Queen Elizabeth II as ‘the leader of a racist empire’ and Senator Hanson responded that Senator Faruqi should ‘piss off back to Pakistan’.

The Human Rights Commission will treat the complaint as based, at least in part, on Section 18C which makes it unlawful to do an act that is reasonably likely to, amongst other things, offend or insult another person or group of persons because of their race, colour or national or ethnic origin. There are certain exemptions but these are subject to the qualifications that the conduct must be reasonable and in good faith, questions the answers to which are obviously subjective and might only be determined after lengthy legal proceedings. Apart from the time involved in this kind of litigation, the cost may well be substantial for a person against whom a complaint has been brought, whether or not the complaint is finally made out, reflecting Voltaire’s truism that he had only been ruined twice in his life, once when he lost a lawsuit and on the other occasion when he was successful in a legal action.

The real objection to Section 18C has always been that it is sometimes impossible to have a robust public debate without offending or insulting persons or groups, some of whom may have a very high level of sensitivity. As Justice Harlan of the US Supreme Court said in a 1968 judgment, ‘the state has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish amongst us’.

It is said by the defenders of Section 18C that it is necessary to protect individuals and groups against ‘hate speech’. The term ‘hate speech’ is now used by many people to mean no more than expressions of opinion with which they do not agree. Genuine hate speech has, of course, always been subject to the criminal law which makes it an offence to incite violence against individuals or groups or the destruction of their property on any grounds, including race and nationality.

One of the most contentious aspects of Section 18C is that it can be – and has been – used to suppress expressions of political opinion. There is a crucial difference here from the law of defamation where it is a complete defence to prove the truth of the statements that are the subject of complaint. But Section 18C is not concerned with truth or falsity. If a statement is offensive or insulting, it does not matter whether it is true or not. Take as an example the statement that in and around 1915 up to 1.5 million Armenians in Turkey died, particularly through forced deportation to desert areas, because of the policies of the then Turkish government. There is certainly historical evidence for this assertion but it has been fiercely disputed by Turkish regimes ever since. Many Turks would be offended and insulted by claims of an Armenian genocide but the truth or otherwise of the allegation would be irrelevant to any complaint made by them under Section 18C.

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. It might be noted that not a word in support of the amendment attempt was heard from the bevy of legal academics and bureaucrats who are vociferous in their proposals for a national bill of rights. This is because their bill of rights, although it would presumably provide for a right to freedom of speech, would not override provisions such as Section 18C. The solution to Section 18C is not a bill of rights but simply not to enact that kind of legislation in the first place.

The justification for limiting freedom of speech should be a difficult test to meet. As another American jurist, Oliver Wendell Holmes, said in a 1919 judgment of the US Supreme Court: ‘I think that we should be eternally vigilant against attempts to check the expressions of opinions that we loath… unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country’.

What about the Nazi salute used by some of the spectators at a recent first-grade soccer match? Certainly offensive to many people but does this justify a lifetime ban on their attendance at future matches? Holmes would probably say this was not required to save the country. The same might be said about those who deny the existence of the Holocaust – an utterly absurd contention in the face of an avalanche of historical evidence to the contrary and obviously offensive to the Jewish community but arguably not a reason to make the expression of such a view unlawful as Section 18C would do.

Senator Faruqi is, of course, perfectly entitled to make a complaint to the Human Rights Commission and that body will consider the complaint on the basis of the existing law, including Section 18C. That does not alter the fact that Section 18C is a bad law and should be repealed. The right response to speech that one finds offensive is one’s own speech. Freedom of speech lies at the heart of a political system based on parliamentary democracy but it is easily eroded by provisions like Section 18C and, once weakened, difficult to restore to its true value.