Context and the Limits of Legal Reasoning: The 'Victim Focus' of Section 18C in Comparative Perspective

This paper considers the recent controversy surrounding section 18C of the Racial Discrimination Act, and assesses the need for reform. I argue that the controversy surrounding section 18C is traceable to two causes. Firstly, section 18C locates the harm of hate speech within the experience of a victim, and secondly, describes this experience in terms of ‘feelings’ such as offence and insult. This ‘victim focus’ departs from the traditional characterisation of vilification as speech that harms social cohesion — an approach I refer to as the ‘incitement focus’. I defend section 18C’s ‘victim focus’ by analysing the reasoning of the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the German Constitutional Court where the ‘incitement focus’ is dominant. Through this comparison, I demonstrate that the ‘incitement focus’ is ill adapted to deal with the harm of hate speech in societies with a high degree of social cohesion. In these circumstances, the connection between speech and incitement is less amenable to legal reasoning, although courts legitimately perceive harm in the social and historical significance of hate speech. In contrast, Australia’s ‘victim focus’ is better adapted to an inquiry into the relationship between speech and social and historical patterns of persecution. While I defend section 18C’s description of this relationship in terms of ‘offence’ and ‘insult’, I recommend that the provision be amended to require that ‘insult’ be considered within an historical and social context. This may strengthen the public’s perception that section 18C is a legitimate restriction on speech.