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Racial Discrimination Act Section 18C – what’s it all about?

By John Hargreaves - 10 April 2017 11

Bonegilla 1

Did you hear the one about the Irishman who didn’t speak to his wife for two months after the birth of their twin boys? She wouldn’t tell him the name of the father of the other one!

Feeble joke but an example of what you can’t say now in public. According to Section 18C of the Racial Discrimination Act (RDA), this joke is likely to cause offence, insult and humiliate a race of people – the Irish. Mmmm!

When I was growing up on the migrant hostel and later in primary and secondary school, I was taunted and bullied for being a “pommie bastard”. Now I know my parents were married just before I was born so I know the second part is not true but I fess up to the first bit. Was I offended? Insulted? Humiliated? Intimidated? Abso bloody lootely! And how did I deal with it as a kid?

The first thing I did was to get rid of my Brummie accent. The second was to develop defence mechanisms. Fight or flight? I fought. Firstly I struck back physically and won most of my fights by at least 50 metres. Next, I worked out that offence is better than defence. I took the mickey out of other unfortunate kids. Diversionary tactics. Italians were prime targets as wogs, Scandinavians were white wogs, Asians (although I didn’t see many of those guys until well into my teens) copped it, our indigenous folks came in for a hammering. And then when I was defending myself, I found that my comments had a comedic result and I became aware of racial jokes. Books were written on them, TV series were made around racial difference and the humorous aspects of difference. It became not only accepted, almost expected, that one would make jokes about different racial groups.

But was I, in my tender years, trying to offend, insult, humiliate? Not really. I just had a misunderstanding of the effect I was having by the expression of my own favoured comedy.

Was I in breach then of the RDA as it now reads? I checked it out.

18C of the RDA says at clause (1) it is unlawful for a person to do an act, otherwise than in private, (my emphasis) if:

(a)    The act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and

(b)   The act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Clause (2) clarifies what is meant by “in private” by saying “For the purposes of subsection (1), an act is taken not (my emphasis) to be done in private if it:

(a)    Causes words, sounds, images or writing to be communicated to the public; or

(b)   Is done in a public place; or

(c)    Is done in the sight or hearing of people who are in a public place”

And defines a public place as including any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

During the debate in the media and in Parliament, reference was made of the exemptions given at Section 18D. This is the cop-out clause.

It says Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)    In the performance, exhibition or distribution of an artistic work; (my emphasis) or

(b)   In the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)    In making or publishing:

(i)               A fair and accurate report of any event or matter of public interest; or

(ii)              A fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment. (my emphasis)

So if I’m at the footy and I give a player a razz because they are of an ethnic grouping that I bagged when I was a kid, I am in breach of the RDA because the player could take offence, feel intimidated or humiliated and so to could some around me feel so insulted if they were sympathetic to umpires. The Adam Goodes example is a good one. But if I am at my place watching the footy on TV and in the company of some mates, and I say the same things I’m not in breach because it is not a public place.

If I go to a pub and tell a racist flavoured joke, even against myself (as I’m wont to do), because it’s in a public place and someone in the vicinity may take offence or feel humiliated, I am in breach of the RDA.

But if a comedian on stage during, in his view an artistic performance, tells a joke about black people in America, he’s fine.

And if I’m Pauline Hanson, I may not be in breach because she genuinely has the belief that Muslims, Asians and anyone who is not of Caucasian and probably Anglo-Celtic extraction, with red hair and the culinary preferences for chish and fips, are to be pilloried, attacked as not having the same values as the rest of us, because she does so in the public interest. Section 18C should not be tampered with, but 18D perhaps should.

Those seeking to water down the protections against racial vilification, just don’t get the reason for the provisions.

They are consistent with the International Convention on the elimination of all forms of racial discrimination, particularly section 3 (1); article 2; article 4 and article 5. In the interests of space, I invite readers to Google those pieces.

It is about intention. If it is one’s intention to diminish, insult, humiliate or intimidate, then there is an offence. Full Stop! For too long, it was possible to insult under the guise of comedy, it was possible to diminish because it was a clever bit of phrasing, it was OK to intimidate because we were really joking, eh?

Watering down the provisions of 18C will definitely open the doors for any xenophobic individual or organisation to have open slather of the use of language with vilifies, insults, hurts, diminishes and intimidates people on the basis of where they were born, of what racial profile they have.

Martin Luther King said it correctly in his “I have a Dream” speech.  He said: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” Wouldn’t it be great if this applied worldwide? And how would Hanson et al stack up?

People feel insults and hurt inside. Some react and most don’t. They suffer in silence. 18C is for those silent sufferers.

I was glad to see the Senate knock off the assault by those xenophobic dinosaurs who wanted to be able to express vile comments about other people, in the name of free speech. Free speech does not mean a licence to hurt, to humiliate, insult, offend or to vilify.

So, my good and kind-hearted friends, think about what you were like as a kid, as a teenager, as a young adult. Did you say things which in hindsight, may have been offensive to people around you and you didn’t notice? I certainly did and am I proud of it. No!

Section 18C made me sit up and look at myself. I have a great sense of humour and a faculty to be able to construct jokes. I just have to temper them from now on. Otherwise, I will truly be a Pommie Bastard!

Photo: John Hargreaves outside the Bonegilla Migrant Hostel. Photo courtesy of John Hargreaves.

What’s Your opinion?


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11 Responses to
Racial Discrimination Act Section 18C – what’s it all about?
1
dungfungus 9:52 am
10 Apr 17
#

Your life story is very similar to many others of your age and background, John.
I recall that in primary school years I was teased because I didn’t have a father (he died when I was a few months old) and this hurt my mother more that I hurt me because “one does not miss the things they never had”. I never received “counselling” or any special concessions and simply accepted it as part of life.

My “best friend” at school in those days was a German (post-war refugee) lad who turned up on his first few days wearing Lederhosen. He was immediately called “Adolf” and he regularly got belted up by other European refugees who were displaced by the invading German forces during the war. After a few months everyone had settled their differences and we all got over it. I stayed in touch with “Adolf” for the next 15 years – he died tragically in a motor accident and many of his first school mates turned up at his funeral.

We didn’t need oversight by “human rights nannies” and “social engineering” and we all grew up OK.

Regarding Pauline Hanson, I think you are way off the mark about what she is about.

You do realise that you are actually vilifying her by what you are saying? In another time I would call you a hypocrite but I can see that you are only following the political narrative so I forgive you.

2
Mysteryman 10:22 am
10 Apr 17
#

The act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and

Any law that legislates based on feelings – feeling insulted, feeling humiliated, etc – should be removed. Feelings are a ridiculous test to use in legislation. The government should NOT be in the business of protecting people’s feelings. Simple as that.

Of course, Labor and the Greens love this law because they want to be in the business of telling everyone how they should think and how they should speak.

3
Blen_Carmichael 1:06 pm
10 Apr 17
#

I see John cites the United Nations. On that note, let’s have a look at the Universal Declaration of Human Rights (Article 19)

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Is there anything in that Declaration about the right not to be offended? No. But back to 18C, or rather John’s construct of 18C.

“It is about intention. If it is one’s intention to diminish, insult, humiliate or intimidate, then there is an offence.”

First, 18C renders certain actions unlawful, not illegal, hence there is no criminal offence. Secondly, it isn’t necessary to establish that the respondent intended to offend. One can fall foul of 18C irrespective of his intention.

The main problem I have with 18C is that it hinges largely on subjective considerations. Rather than determining whether a reasonable person (i.e. Joe Blow) would consider the comment in question to be offensive, the test is based on what the complainant’s demographic – as a group – would think.

Now that’s fair enough, you might say. It’s not for white people to tell others what should and shouldn’t offend them (Which is a simplistic construction, but I’ll leave that for now). Let me put it another way. Think of yourself as a respondent in a civil case which is being decided by a jury – which unanimously comprises your accuser’s peers. Still so sanguine?

Also, did you know that truth is not an absolute defence to an 18C action? How’s that for freedom of speech? No, you’ll find a few hurdles in there: “Fair”, “Public Interest” etc. I can’t say I feel very comfortable with the thought of courts telling us what topics are and aren’t in the public interest. Give me America’s First Amendment any day.

I noticed John failed to mention the plight of those QUT students who found themselves slapped with an 18C writ and dragged before the court. Their crime was to object to being kicked out of an “Indigenous Only’ computer lab (Object to segregation, be called a racist – talk about irony). “But they were cleared”, John might say. “This proves the law works.” Well, no, it doesn’t. Some of the defendants – impoverished university students – were browbeaten into paying $5000 plus legal costs in ‘mediation’ as they couldn’t afford to pay $100K to defend themselves. The only reason the others successfully defended it in court was due to a generous barrister acting pro bono.

No doubt the Racial Discrimination Act, when it was legislated back in the seventies, was intended to target those actions which the reasonable person would consider racist. But the 18C amendments in the mid 1990s go far beyond that. Its subjective considerations leave much room for ambiguity – which in turn creates what’s known as the chilling effect on free speech. I don’t think that was unintended.

I’m one of the people who supported the government’s push to amend 18C. But, according to John’s characterisation, this makes me one of those “xenophobic dinosaurs who wanted to be able to express vile comments about other people, in the name of free speech.” That’s laughable. It’s also wrong – perhaps even offensive. But, hey, I – unlike some – am a believer in free speech. It goes both ways, John.

4
JC 2:16 pm
10 Apr 17
#

Mysteryman said :

The act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and

Any law that legislates based on feelings – feeling insulted, feeling humiliated, etc – should be removed. Feelings are a ridiculous test to use in legislation. The government should NOT be in the business of protecting people’s feelings. Simple as that.

Of course, Labor and the Greens love this law because they want to be in the business of telling everyone how they should think and how they should speak.

So let me get this right. You are happy with laws that prevent physical violence against someone but not laws that make it illegal for someone to do equal damage through the use of words? Hmmmm. And it is all Labor and the greens fault?

When it comes to free speech pretty certain that 18D gives those that want to fill their boots expressing their thoughts can do so if it is in the intrest of free speech etc. But 18C is not there to prevent free speech but to help prevent vilification. There is a very subtle difference that it seems are lost on many.

5
Mysteryman 9:46 pm
10 Apr 17
#

JC said :

Mysteryman said :

The act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and

Any law that legislates based on feelings – feeling insulted, feeling humiliated, etc – should be removed. Feelings are a ridiculous test to use in legislation. The government should NOT be in the business of protecting people’s feelings. Simple as that.

Of course, Labor and the Greens love this law because they want to be in the business of telling everyone how they should think and how they should speak.

So let me get this right. You are happy with laws that prevent physical violence against someone but not laws that make it illegal for someone to do equal damage through the use of words? Hmmmm. .

Let me get this right: you think committing an act of violence against someone is comparable to insulting them and should be treated as such by the law? Honestly? I really hope you’re being facetious, but if you aren’t then you really need to stop and have a good hard think about your position and just how ridiculous that suggestion is. The two things are not comparable. Not even close. And they absolutely should not be legislated as though that are.

JC said :

And it is all Labor and the greens fault?

A Labor government introduced the ridiculous amendment, and they and the Greens have blocked its repeal. Seems pretty obvious whose fault it is.

6
JC 12:56 pm
11 Apr 17
#

Mysteryman said :

JC said :

Mysteryman said :

The act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and

Any law that legislates based on feelings – feeling insulted, feeling humiliated, etc – should be removed. Feelings are a ridiculous test to use in legislation. The government should NOT be in the business of protecting people’s feelings. Simple as that.

Of course, Labor and the Greens love this law because they want to be in the business of telling everyone how they should think and how they should speak.

So let me get this right. You are happy with laws that prevent physical violence against someone but not laws that make it illegal for someone to do equal damage through the use of words? Hmmmm. .

Let me get this right: you think committing an act of violence against someone is comparable to insulting them and should be treated as such by the law? Honestly? I really hope you’re being facetious, but if you aren’t then you really need to stop and have a good hard think about your position and just how ridiculous that suggestion is. The two things are not comparable. Not even close. And they absolutely should not be legislated as though that are.

JC said :

And it is all Labor and the greens fault?

A Labor government introduced the ridiculous amendment, and they and the Greens have blocked its repeal. Seems pretty obvious whose fault it is.

I was actually quite serious. Emotional hurt can be just as bad if not worse than physical. Clearly you are happy to have laws that punish those that create physical hurt but not those that create emotional hurt. Never mind people who get hurt to the extent of suicide. Guess it’s their own silly faulty isn’t it, or Labor or Greens or who ever else you want to blame except those that cause that hurt and are happy for that hurt to go unpunished.

And when it comes to free speech 18D provides the required protection in that regard. But vilification and abuse ain’t free speech. It is abuse pure and simple.

Someone above mentioned the Queensland case me being the cynic that I am have the feeling that went as far as it did purely for political purposes to fuel the debate further for removal of 18C. If Andrew Bilt didn’t fall foul of 18C no one would have ever heard of these laws regardless of who put them in place.

7
Mysteryman 2:53 pm
11 Apr 17
#

JC said :

Mysteryman said :

JC said :

Mysteryman said :

The act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and

Any law that legislates based on feelings – feeling insulted, feeling humiliated, etc – should be removed. Feelings are a ridiculous test to use in legislation. The government should NOT be in the business of protecting people’s feelings. Simple as that.

Of course, Labor and the Greens love this law because they want to be in the business of telling everyone how they should think and how they should speak.

So let me get this right. You are happy with laws that prevent physical violence against someone but not laws that make it illegal for someone to do equal damage through the use of words? Hmmmm. .

Let me get this right: you think committing an act of violence against someone is comparable to insulting them and should be treated as such by the law? Honestly? I really hope you’re being facetious, but if you aren’t then you really need to stop and have a good hard think about your position and just how ridiculous that suggestion is. The two things are not comparable. Not even close. And they absolutely should not be legislated as though that are.

JC said :

And it is all Labor and the greens fault?

A Labor government introduced the ridiculous amendment, and they and the Greens have blocked its repeal. Seems pretty obvious whose fault it is.

I was actually quite serious. Emotional hurt can be just as bad if not worse than physical. Clearly you are happy to have laws that punish those that create physical hurt but not those that create emotional hurt.

That’s exactly right. Because physical hurt presents an immediate danger that threatens the victim. It’s easy to detect, and easy to test for, and it’s out of the control of the victim. Emotional hurt is a ridiculous thing to police. It doesn’t present an immediate danger, it’s often within the realm of control of the ‘victim’, and it’s not a reliable test to legislate for – emotions are not rational or predictable.

Are we going to introduce legislation that punishes one partner for breaking up with another, since it caused ’emotional hurt’? What about legislation that mandates that there can be no winners or losers in sporting events, since it might cause ’emotional hurt’? Better outlaw the Greens since they’ve caused me emotional hurt.

What pure nonsense.

JC said :

Emotional hurt can be just as bad if not worse than physical

No, it can’t. Physical hurt can kill you against your will. Emotional hurt cannot. And contrary to what the loony left think, emotions can be controlled and even denied.

I struggling to believe you’re defending such a ridiculous comparison.

8
sputnik 2:55 pm
11 Apr 17
#

JC said :

I was actually quite serious. Emotional hurt can be just as bad if not worse than physical.

That is true, but the difference is that the emotional hurt is not created by a single abusive speech. It’s the repetition by the same or other people that can drive a person even to suicide. AKA bullying (or at least much more similar to this than to a physical assault).

I guess the other difference is that Assault Laws carry much stiffer consequences so it is not quite fair comparing those two.

Blen’s comment sounds reasonable. Maybe somebody else more versed in law can comment on the similarities (or lack thereof) of 18C-18D and the workplace discrimination act??

9
Blen_Carmichael 3:05 pm
11 Apr 17
#

JC said :

Someone above mentioned the Queensland case

I’m your Huckleberry.

JC said :

me being the cynic that I am [I] have the feeling that went as far as it did purely for political purposes to fuel the debate further for removal of 18C.

“I have the feeling” isn’t exactly the stuff of gravitas. It’s up there with “A bloke at the pub told me”. But let’s address your claim. The plaintiff in the QUT matter, Cindy Prior, filed her 18C complaint with the Human Rights Commission in May 2014. The HRC terminated its inquiry in August 2015 after failing to resolve the matter, and two months later Prior filed proceedings in the Federal Circuit Court. It wasn’t until November 2016 that the court dismissed Prior’s claim. Even then she tried unsuccessfully to appeal that decision.

So it appears your claim has no basis – unless of course you have a feeling those dastardly conservatives employed Prior as part of a false flag operation…

10
Ozzy_Oz 10:10 am
13 Apr 17
#

“Free speech does not mean a licence to hurt, to humiliate, insult, offend or to vilify.”

Tell me then, what does free speech mean exactly? To me, freedom is an absolute right. Any adjustment to the people’s right to freedom of speech is treason, from what the western world fought long and hard for.
To think for a second that the truth could be made illegal makes me feel ashamed to be Australian. One aspect of our culture is about taking the micky out of each other and staying true to the way we fell. We’re an honesty bunch and laws like this just create more division against minority. To sum it up, it’s retarded (or am I not allowed to use said word).

11
dungfungus 1:28 pm
15 Apr 17
#

Ozzy_Oz said :

“Free speech does not mean a licence to hurt, to humiliate, insult, offend or to vilify.”

Tell me then, what does free speech mean exactly? To me, freedom is an absolute right. Any adjustment to the people’s right to freedom of speech is treason, from what the western world fought long and hard for.
To think for a second that the truth could be made illegal makes me feel ashamed to be Australian. One aspect of our culture is about taking the micky out of each other and staying true to the way we fell. We’re an honesty bunch and laws like this just create more division against minority. To sum it up, it’s retarded (or am I not allowed to use said word).

Free speech is only “free” if it is appropriate and politically correct.

http://thetruthwins.com/archives/20-outrageous-examples-that-show-how-political-correctness-is-taking-over-america

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