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Home Published Articles 18C; it’s about conciliating racial hatred, not persecuting Andrew Bolt

18C; it’s about conciliating racial hatred, not persecuting Andrew Bolt

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"Total liberty for wolves is death to the lambs" - Isaiah Berlin (20th Century Philosopher)

In 1995, during Paul Keating’s prime ministership, section 18C was introduced into the Racial Discrimination Act. For 11 years under John Howard, this effective protection against hate speech remained untouched. Now, however, Attorney-General George Brandis has proposed major changes. The reason for the current government’s change of heart appears to be almost solely as a result of the successful case brought against the government’s most valiant tribune, Mr Andrew Bolt.

Andrew Dyson
The Age cartoonist Andrew Dyson's take on the IPA and Abbott's plans to repeal 18C

In a 2011 case, Federal Court Justice Bromberg found that “fair-skinned Aboriginal people” were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed” in several articles by Bolt published in the Herald Sun.

I am not the biggest fan of a lot of Bolt’s current opinions. But although I am no lawyer, and notwithstanding that there were genuine errors of fact in Bolt’s articles, like other observers I thought Justice Bromberg’s interpretation of 18C seemed harsh. It is surprising then that Bolt and the Herald Sun decided against appealing Justice Bromberg’s decision, particularly as, in his own words Bolt found the case to be a "misery" and “a calamity”.

The decision not to appeal did however mean that the libertarian ideologues who appear to have seized control of the venerable Institute of Public Affairs have a rallying cry. Their missionwhich, in the words of a Mission Impossible brief, they have “chosen to accept”, is to liberate the nation from the anti-free speech "Bolt Laws".

Justice Bromberg and Andrew Bolt

Although Justice Bromberg’s decision seems severe, it was but one instance. A wise government should think very carefully about sweeping away 18C because of one controversial (and unappealed) decision. There is a general misunderstanding about how 18C and other provisions of the Racial Discrimination Act work. The vast majority of complaints under 18C do not go to court. The whole purpose of section 18C is to promote tolerance by bringing parties together to discuss the subject of their complaint and arrive at a conciliated and agreed outcome.

Between 13 October 1995 and June 2010 the Australian Human Rights Commission received 1266 complaints under the RDA. Only approximately 20 matters were decided in the courts. Fifty-three per cent of racial vilification complaints in 2012-13 were resolved at conciliation. Less than 3% of racial hatred complaints actually went to court. Common ways of resolving a dispute through conciliation are via an apology, or via an agreement to remove offensive material, or sometimes via the implementation of training.

As Joe Caputo, Chairman of the Federation of Ethnic Communities Council said; with 18C "(t)here's not a carte blanche to vilify people because they have different coloured skin and are of different backgrounds … But there is enough room for speech and genuine debate to take place when it is done in a respectful manner." The leaders of Australia’s Chinese, Greek, Muslim, Jewish, Armenian, Lebanese, Vietnamese and Indigenous community groups are united in their calls to retain 18C.

Prime Minister's Chief of Staff, Peta Credlin, explaining to the acting Prime Minister Warren Truss what Attorney-General Brandis meant when he said “everyone has a right to be a bigot”

However it is becoming clear that there is no such unity in the coalition ranks. While Senator Brandis has loudly proclaimed Australians’ "right to be bigots", Liberal MPs David Coleman, Craig Laundy and Ewen Jones are thought to have expressed concern. Indigenous Liberal MP Ken Wyatt has reportedly said of Senator Brandis’s proposed changes to 18C "It doesn't pass all hurdles".

Bolt’s local paper, the Melbourne Herald Sun, editorialised that “the underlying problem with the ill-considered effects of Section 18C is that if someone says they have been offended or humiliated, who is to challenge them?” This widespread misunderstanding, spread by the Boltists, suggests that if someone subjectively feels offended or humiliated, then this is enough to breach 18C. Of course, it is not. As Justice Drummond has noted “whether an act contravenes (18C) is not governed by the impact the act is subjectively perceived to have by a complainant''. Instead, as the Attorney-General said when tabling the Racial Hatred Act back in 1994; 18C “requires an objective test to be applied so that community standards of behaviour rather than the subjective views of the complainant are taken into account.”

So the answer to Bolt’s home paper, the Herald Sun’s editorial question is; it is the person accused of causing offence or humiliation who can challenge the alleged victim. The accused person’s actions are judged according to basic community standards. If according to basic community standards, the alleged "victim" should not have been offended or humiliated, then 18C has not been breached.

Now that the government has released the draft copy of its so-called Freedom of Speech Bill, we can fully appreciate the magnitude of the Attorney-General’s plans. Not only does the amendment drastically reduce the scope of 18C, it restricts the revised 18C to the words “vilifies” or “intimidate” only. Both these new restrictive words are now narrowly defined. Even more worrying though is the new bill’s exceptions clause, which no longer contains any requirement for reasonableness or even accuracy. Instead, any comment made under the guise of any kind of public discussion of any political, social, cultural, religious, artistic, academic or scientific matter – a broad exemption clause if ever there was one. Indeed, it’s hard to imagine under Brandis and Abbott’s version of racial discrimination laws that any kind of comment, no matter how racist or bigoted, would fail to be exempted by this clause. It seems the IPA freedom fighters have gotten their wish – 18C looks to be effectively finished after 19 years protecting and conciliating vulnerable members of our pluralist society. It was good enough for John Howard but it seems that the Bolt example has shattered political goodwill in Canberra.


0 #6 Arabrab 2014-04-04 00:15
PS: Bolt's article was not covered by the exceptions in 18D purely because his comment on a matter of public interest was not accurate and in good faith, i.e.: he intentionally lied. The 'biographies' he ranted about were simply made up by him.

His article was odious, but it was also a gross distortion of the truth. I respect and share your your view that anyone's right to write odious articles is important. However, writing odious articles is fully covered by the law already - provided they are not plain dumb lies. And I don't see why we should fight for anyone's right to publish plain dumb lies about people.
+1 #5 paul ormonde 2014-03-28 00:59
Very helpful analysis Michael. Congratulations . 18c protects the vulnerable and the voiceless. Andrew Bolt is neither.

Paul Ormonde
+1 #4 Berrie Cameron-Allen 2014-03-27 05:15
As the last person commented, "10 out of 10 and a Koala stamp, Mr. Danby, for this article!" A thoughtful, well-considered piece, which I, for one, found most enlightening. Removing 18C is taking a step backwards, and will remove the valuable element of mediation and reconciliation. But then, taking a step backwards is something this current Government does so well!
+2 #3 Andey michael 2014-03-27 00:00
This is like giving a criminal a gun and will desterb the peace, understanding and unity of Great Australia. Do not tach.
+1 #2 Colin Smith 2014-03-26 10:38
A very useful explication of the issue by Michael Danby - the more so thanks to his avoidance of partisan point-scoring in favour of careful argument.

It seems to me that the effect of the application of 18C in the Bolt case was precisely to level the playing field of free speech - providing the complainants against Bolt with a megaphone and authoritative support to effectively rebut what Bolt had said using his Murdoch megaphone.
+3 #1 From The Guardian 2014-03-26 02:28
This article is brilliant. Not only is a clear explanation of the current law and how it operates given, but the deficiencies in the amendments are clearly explained.

The current law's feature of providing recourse, and mediation is an extremely positive social feature in that a mechanism is in place to promote dialogue, education, and reconcilliation.

The new law appears to legalize racially targeted speech that will be relieved of the requirement of 'reasonableness or even accuracy'.
The government is revealed to be rewarding it's libertarian backers at the Institute of Public Affairs, and assuaging the bruised ego of Mr. Bolt, who chose to not appeal a questionable decision under the current law.

Much of the criticism of the law as it stands is that prosecution can be based on subjective feeling, however, the law makes no provision for this at all, rather “requires an objective test to be applied so that community standards of behaviour rather than the subjective views of the complainant are taken into account.” This is how the law was framed, and how it has been applied.

Ten out of ten, and a Koala Stamp, Michael Danby, for this article.

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