There is a problem about the push to confine, or even abolish, section 18C of the Racial Discrimination Act: most of what is said by critics of the law is legally up a wattle.
It’s not just a little bit wrong. It’s radically, spectacularly, embarrassingly wrong.
As far as can be discerned from the public statements of Senator Cory Bernardi and his supporters on this matter, they simply do not understand what 18C means or how it works. The misconceptions are so fundamental, and so sweeping, that fair-minded observers are entitled to wonder whether they want to understand.
It certainly doesn’t take much effort. The information is all readily available on the public record.
Put at its broadest, the criticism of 18C – particularly when it proscribes offering offence or insult directed at race or colour or national or ethnic origin – is that it imposes some dire limit on freedom of speech. The response, put at its broadest, is: ballocks.
We have to begin unravelling this mess by going back to the section itself.
- 18C makes it unlawful to do an act, other than in private, if that act falls within each of two descriptions:
- First, the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people.
- Second, the act is done because of the race, colour, national or ethnic origin of whomever is on the receiving end.
I have put a few short passages in italics, because they crucially affect key parts of the public discussion. But before we deal with them, it is necessary to follow through at once to the next section, 18D. Most critics of 18C ignore 18D. It is not hard to find. It is the next bit. It says this:
- 18C will not catch you if what you said or did was reasonable and done in good faith in any one of the following three situations:
- In the performance, exhibition or distribution of an artistic work – or
- As part of any genuine academic, artistic or scientific activity, or any other purpose of genuine public interest – or
- Involved publishing a fair report, or a fair comment on any matter of public interest (as long as the person making the comment genuinely believed it).
So it makes no sense to even think about 18C if we do not think about 18D at the same time, because 18D wipes away most of the situations that 18C critics are worried about.
That word reasonable in 18D does not mean that you only gain the protection if you are being nice about it, which is the sense in which we tend to use the word when we are trying to get the kids to go along with what we want. It means only that what you say has to be capable of being defended on a basis of fact and logic.
And while we are on the key phrases of 18D, in good faith might seem like airy lawyer-talk to some people, but it translates pretty closely as “you have to have been fair dinkum”.
Why has 18D been so freely ignored in public debate? Because it is inconvenient for the critics. It is especially inconvenient for Andrew Bolt and his defenders, who still cannot come to terms with the fact that Bolt and his editors were found to have contravened 18C back in 2011.
That case arose out of two articles by Bolt which insinuated that fair-skinned people of partial Aboriginal descent were being self-indulgent or opportunistic, or both, in identifying with the Aboriginal element of their family heritage.
Bolt was not found by the Federal Court to be at fault because 18C means you cannot say that sort of thing. He was found to be at fault because he had made (easily checkable) factual errors, he had distorted other things, and he had not acted in good faith in putting forward his views.
That is, he could not fit himself into any of the bolt-holes that 18D offered.
While we are on the Bolt case, let’s get another matter clear. He was not prosecuted. He did not commit an offence. This is something the critics of 18C find difficult to get their heads around. Even the Member for Warringah, Tony Abbott, was venting a few weeks ago about Bolt having been prosecuted for his opinions.
It’s nonsense. It just cannot happen. The Racial Discrimination Act itself says so – unlawful, yes; criminal offence, no. So all a complainant can get if the matter goes to court is an apology (if indeed there is any contrition), a court-ordered correction of some kind, an enforceable court order that the person in breach not re-publish the offending material, and maybe some other remedies of that general kind.
By the way, only a tiny percentage of complaints – say, roughly, 5 per cent – do go to court. Most of them are mediated by the Australian Human Rights Commission.
Now that we have narrowed the scope of the alleged problem, let’s return to what it is that 18C actually does, if an 18D escape-route is not possible.
Our first key-word was unlawful . We have dealt with that.
Next was the phrase other than in private. Simple, really. The 18C controls do not apply to private conversations.
This makes nonsense of the position of one of Senator Bernardi’s backbench supporters, Senator Chris Back. He was reported recently as saying he was content for 18C to outlaw intimidation, but he wanted other words removed. His reason?
“You could say anything to me, you could say, ‘I hate the West Coast Eagles’, and I might be insulted or offended by that, but you have the right to say that.”
The courts have consistently said that 18C does not come to the help of the hyper-sensitive
Indeed we do, Senator, and nothing in 18C prevents us saying it to you next time we see you. Not only would this be a private occasion, but the example you offer has nothing to do with racial characterisations. What’s more, even if it did, we would probably be protected by the next key-phrase in 18C: reasonably likely, in all the circumstances to offend … etc.
There is a lot of lawyer-talk to be found around phrases such as reasonably likely, but for most of us it is enough that the words pretty well speak for themselves. The courts have consistently said that 18C does not come to the help of the hyper-sensitive, or of those who are themselves so intolerant that they can find offence in any view that they do not share.
The extended phrase, including in all the circumstances, has consistently and routinely been interpreted by the courts to mean that the injury must be what you would expect to be experienced by a reasonable member of the target group.
Morry Bailes, in InDaily last week, reckoned this was a puzzling notion. He said he preferred what he called an objective test.
I do not accept that the effect on a reasonable member of the target group is an especially puzzling idea. It is, in essence, an objective test, but it is made by reference to a relevant group.
This is not an unusual piece of law. It is quite common for behaviour that is legally regulated to be tested by looking at its effect on the relevant group – for example, banks have to make themselves clear to retail customers and cannot expect those customers to be as financially savvy as Wall Street high-fliers.
So there we have it, defenders of free speech.
18C applies only to public actions.
18C is not a whingers’ charter for the super-sensitive.
18C is not all about how the complainant feels: 18C requires those feelings to pass a threshold of reasonableness.
And if what is said is said by people who are being reasonable and fair-dinkum in the course of artistic, academic, scientific or public-interest pursuits, 18D says we must all take the rough with the smooth.
And the problem with that is?
Michael Jacobs is a freelance writer. He has been a lawyer and a political journalist.
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