January 16, 2015

Horse 1822 - Do You Really Want To Live In A Society Without Section 18C?

With the attacks on the magazine Charlie Hebdo last week and the subsequent death of twelve staff; coupled with the deaths of two people at the hands of a lone gunman in Sydney, we've seen articles in the Daily Telegraph especially, again calling for the repeal of Section 18C of the Racial Discrimination Act.
What's the real motive though? I think that it has precisely zero to do with free speech and everything to do with protecting their own and thus removing all ability for other people to find redress through legislation. The only reason that anyone even cares all that much about 18C in particular, was that News Corp's Andrew Bolt was found guilty under the act. If that had not happened, would we be even hearing a peep about Section 18C? Not a bar of it.

What is at stake though? For argument's sake, let's just pretend that Section 18C did not exist. In the specific case of Eatock v Bolt (No 2) [2011], the nine Aboriginal people and specifically Pat Eatock who was an aboriginal lady would most likely not have found any redress whatsoever against a gentleman whose opinions appear in an entire national network of daily newspapers.¹ If the case had been reversed and this lady had written about Andrew Bolt, would he have employed to services of that same national newspaper network and fought a defamation case? It's not hard to imagine.

This is the relevant section in question:
Offensive behaviour because of race, colour or national or ethnic origin.
(1)  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; 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.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts.
- Section 18C, Racial Discrimination Act 1975

From an historical perspective, the passing of the Racial Discrimination Act (1975) sits at the end of a tremendous cultural shift in Australian society. Aboriginal peoples were given the vote in 1967 and a wave of postwar immigration from Europe coupled with migrants who had come as refugees from Asia (especially from places that Australia had gladly bombed because we have never ever in 114 years grown enough of a spine to develop our own foreign policy), meant that even the look of people's faces which make up society was changing. As I type this, I'm sitting on a train with at least six different languages being spoken on people's mobile telephones. 18C with its words that " offend, insult, humiliate or intimidate" speaks not only just of what we do not want to see in society but especially of who we'd like to be as a nation.
Are we to assume that those advocating for the repeal of 18C, wish it to be repealed because they'd like to start offending, insulting, humiliating or intimidating people or groups of people without fear of the law? Is it right that a newspaper like the Daily Telegraph which proudly boasts that it has a readership of 1.2 million a day, should even have such power?
It was Brutus in Shakespeare's Julius Caesar who said that "The abuse of greatness is when it disjoins Remorse from power."²

What would happen if the laws had never existed? What redress could people on the end of abuse possibly hope for? Defamation cases are far harder to materially prove in court than racial discrimination cases.
What are the consequences of repealing the laws? Presumably those who wish for 18C to be repealed have never had to live with those consequences. Do we really want to live in a society that actively wants the consequences of marginalisation, vilification and exclusion allowed to run riot?
If 18C does not exist, does that mean that we in effect tell society that we do not care who gets hurt? The people who find themselves on the end of racial discrimination and vilification are often the most vulnerable members of society. Are we now saying that absolute free speech should be allowed to be used as a weapon to beat and injure some of the most vulnerable members of society and that there should not be those grounds to redress that injury?

If we do intend to repeal Section 18C of the Racial Discrimination Act (1975) on the grounds that it impinges on free speech, then should we also repeal Section 28A of the Sex Racial Discrimination Act (1984)? When the 1994 amendments to the Racial Discrimination Act were made, they followed the same material test:
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
- Section 28A, Sex Discrimination Act 1975

If you intend to tear the framework of law apart, then you may as well bring the whole lot crashing down. Let's just do that shall we?

The Australian Communications and Media Authority made an investigation following the 2005 Cronulla riots, into the Alan Jones breakfast show on Sydney radio station 2GB. As far as I know, no charges were brought against Alan Jones or 2GB with regards their broadcasts in the week leading towards the events of 11th December 2005 but ACMA made reference with respect to Section 18C in their investigation. Their investigation looked at the Commercial Radio Australia Codes of Practice 2004 (which has since been updated in 2013) and it found that broadcasts on two of the five weekdays before the riots, were in breach of the code:

Would the repeal of 18C lead to a situation where the law was powerless to do anything in the face of currently offensive, insulting, humiliating or intimidating material which was published? I can't answer that but Johnathon Holmes in the Sydney Morning Herald points out that:
Charlie Hebdo set out, every week, with the greatest deliberation, to offend and insult all kinds of people, and especially in recent years the followers of Islam, whether fundamentalist or not. 
- Jonathan Holmes, Sydney Morning Herald, 14th Jan 2015

Again I ask, what are the consequences of repealing the laws? More race riots like we saw in 2005? Maybe people being shot to pieces like we saw in Paris?
Actually if Charlie Hebdo had exercised some self-restraint and not published the cartoons, the attacks would never have happened. Now I'm not saying for a second that you can necessarily blame the actions of three mad gunmen on Charlie Hebdo because that's preposterous but surely a degree of foresight and responsibility for what you publish might have suggested the possibility that if you are deliberately intending to be provocative, then people are going to be provoked into anger or resentment. Actions have consequences.

It's all very well to run around yelling "free speech for all" and "people have the right to be bigots" but I bet though that if such attacks had happened in Sydney that very different articles would be published, not asking for the repeal of 18C but why the government had failed to stop these people.
If you repeal Section 18C of the Racial Discrimination Act, which section of the Law of Unintended Consequences comes into play; moreover, who ends up paying for those changes?

¹Eatock v Bolt (No 2) [2011] - http://www.justinian.com.au/storage/pdf/eatock_bolt_2.pdf
Part (c) is interesting:
that conduct was not exempted from being unlawful by s 18D of the Racial Discrimination Act 1975 (Cth) because the Newspaper Articles were not written or published reasonably and in good faith.
²Julius Caesar, Act II, Scene 1.

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