1. there is no con­tra­ven­tion of section 18C unless the offence, insult, humi­li­ation or intim­id­a­tion is found to have “profound and serious effects, not to be likened to mere slights” (Creek v Cairns Post Pty Ltd [2001] FCA 1007 at [16] per Kieffel
2.  “reas­on­ably likely to” has been construed without exception as an objective test not a sub­ject­ive test thereby excluding the capri­cious per­cep­tions of the com­plain­ant or witnesses (Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15]; Creek v Cairns Post Pty Ltd [2001] FCA 1007 at [12]; Jones v Scully [2002] FCA 1080 at [98]-[101])); and
3. “offend, insult, humiliate or intim­id­ate” have been treated by the courts as a single descriptor, although there have been cases in which con­tra­ven­tions have been found only of “offence, insult”.

1. Section 18D was pleaded in Eatock v Bolt [2011] FCA 1103 (the Andrew Bolt case), but the Judge rejected this defence. The articles were found to contain “errors of fact” and “dis­tor­tions of the truth”. There was no appeal against those findings;

1. The con­tra­ven­tion of section 18C in the Andrew Bolt case was not due to the topic of the articles. See Summary of Judgment at para [30]); and
2. Bill Leak would almost certainly have been able to suc­cess­fully invoke s18D, in respect of his con­tro­ver­sial cartoon. The complaint was withdrawn within a short time.
3. Section 18D has prevailed over 18C on numerous occasions in the courts, ie 18D works in practice and not just in theory.

1. the Chal­len­ging Racism Research Project, Uni­ver­sity of Western Sydney, 2010
2. a Nielsen poll published on 14 April 2014 which found that 88 per cent of respond­ents believe it should be unlawful to offend, insult or humiliate based on race:
3. a poll conducted in February 2017 by Essential Research which found that more than 75% of Aus­trali­ans are opposed to any changes to section 18C

Section 18C was not an issue in the last Federal election. The gov­ern­ment has no mandate to change it.

1. A generic “reas­on­able person” is not in a position to make a fair assess­ment of what is reas­on­ably likely to offend, insult, humiliate or intim­id­ate a par­tic­u­lar minority group, because he or she by defin­i­tion would not have suf­fi­cient back­ground knowledge and insight into the par­tic­u­lar­it­ies of a minority group that has allegedly been targeted with racism to make an informed assess­ment;
2. If the com­plain­ant is a member of a minority community that happens to be unpopular in the wider community at the time of the complaint, that unpop­ular­ity might be a factor in applying the more generic community standard. That would be unjust. Section 18C is not needed to protect members of minority groups who are popular in the wider community. It is needed to protect members of vul­ner­able and, in par­tic­u­lar, unpopular minor­it­ies;
3. Under the existing law, the assess­ment is made by a reas­on­able member of the targeted community, that is, by a member of that community who is neither overly sensitive nor overly thick-skinned. This is both more logical and fairer.

1. Harassing or intim­id­at­ing other people is generally regarded as criminal behaviour. For example, Chapter XI of the Western Aus­trali­an Criminal Code Act 1913 makes it a criminal offence to “create, promote or increase animosity towards, or har­ass­ment of, a racial group or a person as a member of a racial group”. If this is done with intent, the offence carries a 14-year prison sentence (section 77). If not, it carries a 5‑year prison sentence (section 78);
2. Citizens should be protected against har­ass­ment and intim­id­a­tion by the State, not by having to expend their private resources. Har­ass­ment and intim­id­a­tion caused by racism is a social problem, not a private dispute.
3. Replacing the words “offend, insult, humiliate” with the word “harass” would leave vul­ner­able minority groups without a remedy against serious and ugly forms of racist hate speech. (For examples, see Appendix to the sub­mis­sion made by Executive Council of Aus­trali­an Jewry to the Par­lia­ment­ary Inquiry into freedom of speech:
   https://www.ecaj.org.au/wordpress/wp-content/uploads/2016/12/ECAJ-Submission-to-Parliamentary-Inquiry-into-Freedom-of-Speech-6-December-2016.pdf)
4. The case law (including the QUT case) con­tra­dicts the con­ten­tion that the use of the word “offend” in s.18C sets the bar too low – see 2a above;
5. The word “offend” or “offensive” appears in a variety of other laws, including the criminal law, yet the effect is not con­sidered to be con­tro­ver­sial. Indeed, the words “offend”, “humiliate” and intim­id­ate” in section 18C were copied from the defin­i­tion of sexual har­ass­ment in sub-section 28A(1) of the Sex Dis­crim­in­a­tion Act 1984 (Cth).
6. The word “offensive” is also used in sections 471.12 and 474.17 of the Criminal Code 1995 (Cth), which make it unlawful to use a postal service or a carriage service to menace, harass or cause “offence”. State criminal laws also proscribe certain types of “offensive” behaviour;