The cause for reform was taken up by the Coalition, first in opposition, then in government, before being abandoned by Tony Abbott in August 2014. Despite the Coalition Government's official policy, under Abbott and now under Malcolm Turnbull, being no change to 18C, the debate has been kept alive. This year alone, the media coverage of Cindy Prior's claim in the Federal Circuit Court against Queensland University of Technology, some employees and three students; the controversy surrounding Bill Leak's provocative cartoon in The Australian in response to Four Corners' revelations about abuse at the Don Dale Youth Detention Centre and the Turnbull government's establishment of a royal commission; and the signature of a petition by twenty Coalition and crossbench senators in support of amending 18C on the first sitting day of the new parliament have ensured that the issue has not gone away.

Many proponents of the reform or repeal of 18C have elevated this issue to the position of the most urgent threat to free speech in Australia. The sheer volume of commentary devoted to 18C over the last five years indicates this. No other challenge to free speech has received such sustained public attention. Indeed, there has been a seeming conflation – sometimes implicitly, sometimes explicitly – of 18C and freedom of speech: that if 18C is reformed or repealed, then speech in Australia will again be free.

The 18C debate shows how narrow public discourse about fundamental rights and freedoms is in Australia. The intense focus on 18C, to the exclusion of other encroachments on freedom of speech, is misplaced. There are many other equally or more important challenges to freedom of speech under Australian law. One of those challenges is defamation law, which applies to all speech, whereas 18C applies only to speech about race, colour, or national or ethnic origin. The intense focus on 18C has also been counterproductive. By overstating the importance of 18C, the most vocal proponents of repeal or reform have alienated people who might be sympathetic to principled reform.

As a matter of principle, the removal of the words 'offend' and 'insult' from 18C would be a modest reform in the interests of freedom of speech. It is true that 18C has been interpreted so as not to apply to 'mere slights'. There is then a de minimis standard applied when 18C is considered in practice. Nevertheless, no other area of law imposes civil liability for mere offence or insult. In defamation law, for example, mere insult or affront to dignity has never been sufficient; to be liable for defamation, there must be damage to reputation. In practice, removing 'offend' and 'insult' may not have a substantial impact on those who have been found liable for contravening 18C. For instance, Andrew Bolt's conduct was found by Justice Bromberg not only to be reasonably likely to offend and insult but also to humiliate and intimidate people on the grounds of their race.

Reforming 18C in isolation is probably insufficient if one is concerned about freedom of speech. Just as in defamation law, the public interest in freedom of speech is embodied and protected in the defences, which are contained in 18D. The comparative neglect of 18D in public debate is concerning, given its important role in protecting free speech. This section is not without its problems. Not the least of these is that 18D incorporates defences from defamation law, such as fair comment. In principle, the defence of fair comment protects the exercise of free speech on matters of public interest; in practice, the defence of fair comment is highly technical and does not work effectively in protecting expressions of opinion. If a defence does not work in defamation law, where it originates from, it cannot be expected to work in 18D. The task of real reform in the interests of free speech may need to extend beyond 18C, to include 18D and defamation law more generally.

A significant objection to 18C is not that it is routinely enforced or directly applied but that its existence in the statute books inhibits free speech; that it leads people to self-censor. It is sometimes framed in terms of 'political correctness'. Particularly since the reporting of Prior's claim against QUT, a related criticism has been that 18C can expose private individuals to costly, protracted, stressful litigation arising out of low-level, everyday speech. The risk of litigation can only be avoided if people avoid speaking in the first place. Essentially, these criticisms of 18C recognise that this legislation has a 'chilling effect' on free speech.

However, the 'chilling effect' of 18C is not unique. Other areas of law also 'chill' speech. The 'chilling effect' of defamation law is well-known. The threat of defamation litigation can lead people to self-censor. Defamation litigation can also be costly, protracted, and stressful. Cases can stretch over years, sometimes over a decade. Defamation law does not only apply to media outlets. It applies equally to private individuals. Private individuals can be, and are, sued for defamation.

Tony Burke attends 'Walk For Respect', a protest against the amendment of section 18C Racial Discrimination Act  at Lakemba, Sydney (photograph by Ashish Lohorung, Wikimedia Commons)

To the extent that defamation law has been considered by proponents of reform or repeal of 18C, it has been largely to dismiss it as a challenge to free speech. It is regarded as a long-standing, accepted encroachment on freedom of speech. This presents a problem for advocates who have focused too intently on 18C. The principal objection to 18C is that, as a matter of principle, it encroaches too much on free speech. It is no answer to say that defamation law is well-established if defamation too has, for a long time, as a matter of principle, encroached too much on free speech. If the principle of free speech matters, it should matter consistently and the sanction of history should not be relied upon to avoid the need for reform.

The debate about 18C is likely to continue for some time. Even if this statutory provision is amended to delete the words, 'offend' and 'insult', that will not alone enlarge significantly freedom of speech in Australia. In the absence of a bill of rights in the constitution or under statute, human rights in Australia are subject to political contest. Freedom of speech then will need to be contested and there are many other arenas for disputes beyond 18C, of which defamation law reform is the most obvious one.