Bernardi and Leyonhjelm, and other campaigners for the rollback of 18C, tend to focus on the words offend and insult that form part of the key phrase in the legislation (offend, insult, humiliate or intimidate). However, this approach misunderstands the harm threshold in 18C.
The courts have consistently held that the bar is not a low one. To fall within 18C the speech must have:
"
profound and serious effects, not to be likened to mere slights."
In Eatock v Bolt the Federal Court explained:
"The definitions of insult and humiliate are closely connected to a loss of or lowering of dignity. The word intimidate is apt to describe the silencing consequences of the dignity denying impact of racial prejudice as well as the use of threats of violence. The word offend is potentially wider, but given the context, offend should be interpreted conformably with the words chosen as its partners."
Finally, there is another point that often gets lost in the debate over 18C. As far as legal regulation goes, the regime contained in the Racial Discrimination Act is one of the more modest forms of state intervention. The Human Rights Commission is a neutral facilitator, not an enforcer. And, wherever possible, the aim is to resolve things via conciliation.
Only a very small number of cases ever make their way to the court system. Even where a complaint is upheld, the remedies are hardly draconian. Damages are rarely awarded (and if they are, the amount is modest), and no-one is convicted or goes to prison because 18C does not create a criminal offence.