Another 'aberration' shows that 18C is the problem and must be changed

State and federal governments should reform laws that make offensive acts unlawful and refocus them on protecting free speech and stopping workplace and public harassment.

This week a news story broke about a complaint made under section 18C of the Racial Discrimination Act by a Queensland University of Technology employee.

Section 18C makes it unlawful to "offend, insult, humiliate or intimidate" a person on the basis of their "race, colour or national or ethnic origin".

The complaint by the QUT employee is based around posts made by some of the students on a Facebook page that circulates campus gossip.

The posts were made after the students had been denied access to a computer lab in a centre that assists the entry and advancement of indigenous students. The posts were predominantly about the access policy to the lab.

The events that unfolded following the initial incident have led to a complaint under section 18C of the act, and the QUT employee is seeking $250,000 in damages, and has reportedly succeeded in having two parties settle for $5000 each.

As the matter is before the courts it would not be appropriate to comment on the validity of the case, including the nature of the language.

The issue isn't the case. The issue is the law.

Laws shouldn't make offensive and insulting speech unlawful. All that does is invite complainants to use the law as a weapon to resolve disputes better resolved through other means.

After its election in 2013 the Abbott government moved to reform the act. After a ham-fisted attempt through an unworkable proposal its plans were abandoned.

Those with a weathervane commitment to free speech opposed any reform on the basis that the principal concerns with the act resulted from a case against News Limited columnist Andrew Bolt.

The issue is not the individuals surrounding complaints; again, the issue is the law.

Many are now starting to realise that laws that restrict what people can say merely because it is offensive, insulting, ridiculing or humiliating can only lead to dangerous censorship that stops important topics and ideas being debated.

When the test of lawful expression excludes offensive, insulting, ridiculing and humiliating acts on the basis of race it can lead to other topics being taken off the table as well.

At the time Abbott abandoned changing 18C he said the case was an "aberration" and that he "didn't believe that we are likely to see an Andrew Bolt prosecution again. If we do, let's rethink things".

It's time to rethink 18C.

The former prime minister was wrong to conclude that it takes a court decision to highlight the problems with the law.

As the QUT case highlights, the capacity to pursue a case is very serious, and can lead to people feeling compelled to settle disputes, particularly those without deep pockets for legal fees.

Now we don't have one case that justifies a rethink. We have two.

Running parallel to the QUT case is the case before the Tasmanian Anti-Discrimination Board against Catholic Archbishop Julian Porteous.

Porteous is facing a complaint under Section 17 of the Tasmanian Anti-Discrimination Act.

Section 17 uses nearly identical language to 18C but applies it against all minority groups, not merely against people on the basis of their "race, colour or national or ethnic origin".

Porteous faced a complaint after distributing the Don't mess with Marriage booklet.

The booklet states the Catholic Church's long-held view that marriage should only be a union between a man and a woman and provides the environment for raising children.

In the context of a forthcoming plebiscite on marriage for samesex couples the case creates a risk that opponents to reform couldn't express their view without facing a complaint under section 17. And it wouldn't matter where you are in Australia.

A statement could be made in Western Australia and rebroadcast in Tasmania and a complaint could be made.

In response, the Tasmanian government has sensibly suggested amending the law to refocus it away from offensive, insulting and ridiculing speech.

The same should now be done with 18C, but unlike 2013 any proposal should take seriously the concerns of those the current law seeks to protect. Going back through the history of the development of 18C demonstrates how it can be done.

The introduction of 18C was preceded by three significant independent inquiries: The Royal Commission into Aboriginal Deaths in Custody, the Australian Human Rights Commission's National Inquiry into Racist Violence and the Australian Law Reform Commission's inquiry, Multiculturalism and the Law.

None recommended the current law. Instead they recommended the law tackle racially based harassment, hostility and violence.

On these pages last year I proposed an alternative wording for the Tasmanian law, but this could equally apply to 18C.

Both section 17 of Tasmania's law and 18C of the federal law were built off a bad adaptation of workplace sexual harassment provisions under the federal Sex Discrimination Act.

They've reapplied the narrow definition of workplace sexual harassment and replicated it across all public acts.

Instead the law should clearly define the specific nature of workplace harassment and public harassment. Workplace harassment should be conduct that is seriously humiliating, seriously denigrating or intimidating behaviour. Public harassment should be defined as a public act that intimidates or is designed to deny another's humanity.

If adopted, these laws would reflect the type of society we want - one where we are free to debate difficult and challenging ideas but would equally allow all people, including minorities and marginalised communities, recourse to the law to protect themselves from workplace and public harassment.