Why change section 18c

The Australian Government has anti-discrimination laws in place as a part of their Racial Discrimination Act of 1975. Section 18c of the act was added in 1995. Recently, Prime Minister Malcom Turnbull has proposed rewording the language of section 18c to make it more precise.

The original portion of section 18c is:

It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people.

The proposed changes are:

It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to harass or intimidate another person or a group of people.

The changes make the language clearer and more legally robust. It will also make it difficult for people to abuse the originally ambiguous language because they felt “offended, insulted, or humiliated.”

Section 18c of the RDA does not specifically talk about hate speech, but ‘doing an act’ includes speech.

Section 9 of the RDA already covers racial equality and freedom from discrimination or exclusion “of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”

In its present form, all that 18c additionally covers is the freedom not to be “offended, insulted, humiliated, or intimidated.”

So, all races are legally equal in all aspects of society but they should also be legally protected from people saying insulting or offensive things about them? (Racial discrimination in the work place, housing market, or provision of goods and services is additionally covered in Sections 12, 13, and 15.)

The arguments for preserving 18c

The messages exchanged within society can impact on people’s lives to varying degrees. Whether that is through causing someone a measure of emotional distress, due to the severity or duration of exposure; through damaging someone’s character, reputation, or ability to work; or through influencing wider society to also hold or express these views further damaging the individual or group.

It is conceivable that someone could have their life and safety compromised through negative messages. And as such, there is a desire to define such discrimination and make it a punishable offence.

The most quickly drawn argument in favour of hate speech laws, or limitations to certain kinds of speech, is that of limiting the potential emotional distress to individuals, wanting freedom from being verbally attacked, or fearing that racist attitudes will become the norm if they aren’t illegal.

In Parliament Question Time the Labor MP Malarndirri McCarthy’s main response to Malcom Turnbull’s proposed changes seemed to be:

What insulting, offensive, or humiliating comments does the Prime Minister think people should be able to say to me?

The act in its original form only ‘protected’ you from someone making such comments if you took them through a Human Rights Council moderated conciliation process or took them to court. If, for example, Malcom Turnbull publicly said the kind of comments that MP McCarthy fears he would be politically and socially ruined, Australians would condemn his actions, and he would probably be liable under other sections of the RDA.

The outcome of the conciliation process is usually an apology and financial gain for the complainant. Rarely is the respondent believed or ruled in favour of. A lot of the cases deal with employment and come under section 15 of the RDA. Others deal with the provision of goods and services and come under section 13, and those that deal with land or housing come under section 12.

18c seems redundant. Is it supposed to be a deterrent? Do we want to create an environment in Australia where the public needs hold their tongue or risk being taken through ‘an educative [conciliation] process’ (which means apologising and probably paying a fine) or be taken to court for making distasteful comments?

Another Labor MP, Anne Aly, was concerned due to her personal experiences in the past with bigots. I find it hard to see how this argument extends beyond a desire to avoid emotional distress.

The Opposition leader Bill Shorten even asked this:

what insults do you want people to be allowed to say?

But I wonder, what insults does Bill Shorten think it is acceptable for people to be legally prosecuted for saying? And why are racial insults any more offensive than insults based on religion, or sexuality, or just pure hatred. Should all insults be illegal?

Being humiliated, offended, or insulted is something that people need to learn how to deal with, whether it is based on race or anything else. If someone is a bigot and says something abhorrent you can respond ‘well that person was wrong and close-minded,’ and most Australians would agree with you. Are Australians facing egregious prolonged ‘hate speech’ to an extent that warrants limiting everybody’s freedom to express whatever views they want to express?

You cannot just define one word or set of words as being off limits, everyone will want different speech made unlawful. And then why is some other characteristic less important? Perhaps I get equally offended about religion related speech, and someone else gets equally offended about body image related speech, or sexual identity related speech.

One crack in the protection of the freedom of speech will weaken it and lead to widespread censorship.

While he used the same ‘argument’ as Malarndirri McCarthy, the NSW senator Sam Dastyari (shown in this ABC news video) went on to conflate racial discrimination with “homophobia and Islamophobia.”

Homosexuality is not a race and Islam is a religion and not a race. They are not covered under the RDA.

For Australia to truly embrace multiculturalism we need to get to a stage where a person’s race is only the surface level.

Because race truly is only the surface. People will always more strongly base their identities and world views on their religion, political leaning, or even sexual identity. Speech targeting something that forms a more foundational aspect of an individual or groups identity is surely more offensive, insulting, or humiliating than targeting something as comparatively insignificant as their race.

Making it unlawful to do anything offensive, insulting, or humiliating related to these characteristics of a person or groups identity will erode freedom of speech.

Perhaps a concern is that without the protection of the law actual racists or bigots in society will freely voice their opinions unopposed and their opinions will spread. I find this notion—and the meme that all Australians are racists—insulting. Are we to believe that Australians would not stand up against actual bigotry?

There is potential real world damage from racist speech and opinions. I will not deny that. But racism does not permeate Australian society.

In modern Australia an individual has the freedom to discard opinions, to walk away, or to respond and to have their own voice heard.

Shutting down racist speech by pointing out how backwards it is through reasoned arguments is more effective than just silencing racists and leaving them to slink off and brood.

How to measure offensiveness

To avoid section 18c being abused you need to start with clear legal definitions of the terminology.

The RDA includes a section providing the definitions of terms that the act uses, but this does not include “offend, insult, or humiliate.” These words are not legally defined. Only the term intimidate appears in this Australian Legal Dictionary. (For a bit of context I noticed the ‘not suitable for use in court’ term ‘hot-tubbing’ is included in that legal dictionary.)

By what metric do we gauge how someone has been “offended, insulted, or humiliated?” How is the severity of the offender’s crime measured? Do some races need more protection than others? What if both parties just end up humiliating each other? Is racial discrimination against white people less offensive than racial discrimination against Indigenous Australians? Is an Indigenous Australian being discriminatory to a white person less offensive than a white Australian being discriminatory to an Indigenous Australian? (If you are going to consider history to gauge a races guiltiness how far back do you go? Back to the Armenian genocide, the the Middle Eastern slave trade, or tribal wars between Indigenous Australians?)

If you cannot reach a consensus on these kinds of questions, or even legally define the terminology, why should it be law?

Furthermore, how does someone defend themselves against a charge of offending, insulting, or humiliating someone? It is notoriously difficult to prove a negative and it would be impossible to prove that someone’s personal experience of your words or actions was incorrect.

Your defence against section 18c is to prove that your words or actions were “said or done reasonably and in good faith.”

You would need to argue the difference between “acting reasonably and in good faith” as opposed to acting “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people.”

The words used in the act

(Definitions from the Macquarie Concise Dictionary fifth edn)

Harass

  1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.
  2. to disturb persistently; torment.

Humiliate

  1. to lower the pride or self-respect of; cause a painful loss of dignity to; mortify.

Insult

  1. to treat insolently or with contemptuous rudeness; affront.

Intimidate

  1. to make timid, or inspire with fear; overawe; cow.
  2. to force into or deter from some action by inducing fear.

Offend

  1. to irritate in mind or feelings; cause resentful displeasure in.
  2. to affect (the sense, taste, etc.) disagreeably.

Offend, insult, or humiliate are subjective. What offends, insults, or humiliates one will leave another unperturbed.

Intimidation or harassment on the other hand both imply consistent or significant actions from someone or a group. At least it could be provable that the victim was subjected to a sustained effort to intimidate or harass them based on their race.

The Act in use

Under the original act, the complainant would need to prove that they had been “offended, insulted, humiliated, or intimidated,” and presumably, that it was significant enough to negatively impact their life in some measurable way.

With ill-defined terminology, compounded by the emotion and subjectivity of the complainant, there is a lot of room for ambiguity.

All the while the respondent is immediately framed as having “racially discriminated against the complainant.” People never speciously accuse others, do they?

The default position is probably to prioritise the complainant in order to uphold the ethos of the act.

The cartoonist Bill Leak was threatened with legal action under the RDA Section 18c for his cartoon in The Australian. The basis of the complaint is the emotional distress that the cartoon caused individuals who viewed it, including Melissa Dennison. This is not a cut and dry case of discrimination, and there are people that support Bill Leak’s right to produce provocative artwork.

Additionally, he would appear to be protected under the RDA Section 18d, which states:

18D Exemptions

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; 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.

However, the legitimacy of the complaint does not hinder it from being widely publicised, and causing damage to the respondent’s reputation. In the end the complaint was dropped by the complainant because Bill Leak and The Australian were not “going to cooperate with the conciliation process.” Additionally, the complainant only did it because she “really just wanted to have a frank and open discussion with” Bill Leak.

No better way to start a discussion than to publicly complain about being victimised and threaten legal action through a government body.

But in the end her feelings of ‘degradation and humiliation’ faded, and she overcame how “deeply affected” she felt. It all passed and she just walked away.

The scandal that started it all was the exposé of the treatment of indigenous youths in Darwin’s Don Dale detention centre. This is the broad discussion that Bill Leak’s cartoon was contributing to.

Speaking about the exposé the prominent Indigenous Leader Noel Pearson said this on Lateline:

In Cape York peninsula, we talk about … Indigenous responsibility, black fellas have got to take charge and take responsibility for their own children, and of course Government has to work in partnership with us and support us in every way, but that part of the message really struggles to get traction in Australia. When we say that indigenous people should take responsibility for things, that is when we kind of divide camps … we’re united in relation to the outrage about the end consequences but we’re divided over the question of whether indigenous responsibility is a crucial part of the solution, and I say it is. But to hoe that road is very very difficult.

The issue of indigenous responsibility is clearly a “discussion or debate … [for a] genuine purpose in the public interest.” That discussion is what the exposé on the Don Dale detention centre and Bill Leak were adding to, in their own ways. Trying to silence Bill Leak and engage in censorship and litigation over how the discussion is—or should be—held only detracts from the actual issue at hand.

Freedom of speech

Freedom of speech must cover anyone’s right to say anything no matter how unpleasant. It must also cover everyone else’s right to voice their opinions and counter arguments. The line should be drawn as close to direct incitement to violence as possible.

Freedom of speech ensures that there is a marketplace for ideas where individuals in a society can engage in a ‘peer review’ where ideas are weighed against each other with better ones being prioritised and worse ones being excised.

Those who hold bad ideas will undoubtedly be offended just as frequently as those they offend.

Only a sustained campaign of racist attacks or direct incitement to violence should be the grounds by which an individual or groups freedom of speech is limited. However, in the first case, the real crime would be the physical restraint, harassment, psychological abuse, or physical violence and not merely the words being said. Being locked in a room or cornered on a train and berated repeatedly is very different from encountering an offensive cartoon online or an insulting comment.

The point is: you need the freedom to engage in discussion not the fear of being forced into conciliatory processes under threat of litigation.

In closing

I agree that something needs to be done to help individuals and groups live free from discrimination. But giving the government, the legal system, or grieved individuals the power to silence people is not the way to do this.

Racist acts are reprehensible. My main concern is: how do we legally punish someone for how they made someone else feel?

A broader public discussion of the issue—that does not demonise people for their views but instead puts them up against opposing views in a reasoned debate—is a preferable move forward.

In terms of Bill Leak’s cartoon: he had a segment of the population supporting him; he was technically protected by section 18d of the RDA; and he was trying to engage in discussion about a topical issue of significance in Australia.

I want to know why does someone people’s feelings trump all of those facts?


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