The law that makes it an offence to ruffle the sensitive tends to get headline attention only when a high-profile target, such as Andrew Bolt, is dragged before the courts. The truth is that it is deployed often — it’s just that we don’t hear about those cases, or of their legal costs and settlements
People think Section 18c of the Racial Discrimination Act has only really caught Andrew Bolt, plus a few luckless students and staff at Queensland University of Technology. Not so. Right now the Human Rights Commission (HRC) is considering eighteen more complaints – a fact elicited by the Institute of Public Affairs via a Freedom of Information request. And in the past six years, as we now know, aggrieved citizens have lodged a stunning 832 complaints.
This extraordinary data was disclosed today (April 28) by IPA Policy Director Simon Breheny at the launch in Carlton of a new Connor Court book on Section 18c: No Offence Intended: Why 18C is Wrong (270pp, $29.95). The authors are Murdoch University trio Joshua Forrester (Ph.D candidate), Lorraine Finlay, (lecturer in constitutional law), and Dr Augusto Zimmerman (senior lecturer in constitutional law and a WA Law Reform Commissioner). For those who need reminding, Section 18C makes unlawful any act reasonably likely to offend, insult, humiliate or intimidate another person or group of people because of race, colour, nationality or ethnicity.
Breheny said the QUT case involved legalized extortion, secret legal proceedings, and the pursuit of left wing political aims using the federal court system.
“The complainant is Cynthia Prior. Ms Prior was a university administrator at QUT until she decided she simply couldn’t work any more for fear of being offended. The basis of her distress were a number of remarks made online by QUT students, including the factual statement by one student that Indigenous-only computer labs were an example of ‘QUT stopping segregation with segregation’.
“Three respondents have each handed over $5000 to make the issue go away. But the case continues for the remaining respondents. But this complaint is just the tip of the iceberg.”
Mr Prior, whose trauma must be extreme indeed, wants $247,570.52 compensation.
Breheny was asked how much the current 18 complaints emanated from Muslim, Aboriginal and Jewish complaints. He said he considered race and religion to be irrelevant to the issue. But from a back-of-envelope tabulation, he noted complainants include Lebanese (1), Pakistani (1), Sinhalese (1), Indian (3), Australian (8), Chinese (1), and non-specific Asian (1), “dark-skinned” (1) and uncategorized (1).
“The progress of these complaints ranges from an acknowledgement to a final response following conciliation at the commission,” he said. “Details of these complaints are not made public. The documents provided to the IPA under FOI are heavily redacted. They include some basic procedural information, dates, and the race of the complainant but none of the conduct which forms the basis of the complaint.
“The conciliation process within the commission is shrouded in secrecy. HRC Commissioner Tim Soutphommasane admitted this last year: ‘To give you a sense of how the law currently operates, last financial year the Commission received 440-odd complaints [including s18c complaints]. Only about 3% of those complaints ended up in proceedings before a court.’”
Breheny says, “That means that 97% of all complaints are dealt with behind closed doors. Only in 3% of cases, where the matter is not resolved at conciliation, is the public ever made aware of the details of a complaint.
“Why is this relevant? Because had it not been for the QUT complaint advancing from conciliation to litigation, the public would never have known the extent to which s18C threatens freedom of speech. And without transparency around the conduct, the public doesn’t have the opportunity to assess the practical operation of the law.
“Many people, including the former Prime Minister (Abbott), have made the mistake of believing that S18C cases are aberrations.[i] But the HRC’s own statistics show S18C has restricted freedom of speech in hundreds of cases over the last six years alone.
“Malcolm Turnbull would do well to learn from the lessons of Tony Abbott’s time as prime minister in taking the leadership of the Liberal Party. Turnbull promised to lead a ‘thoroughly liberal government’. In line with that statement, Turnbull should make the case for freedom of speech to his colleagues and the public, and recommit to the repeal of S18C.”
In their book No Offence Intended, the authors argue that s 18C is not only philosophically wrong, but also unconstitutional. They note that there is no international human right not to be offended or insulted, and that s18C is so broad and sweeping that it infringes the implied freedom of political communication found in the Australian Constitution.
At the launch, co-author Lorraine Finlay said that Section 18C was having a real impact on public debate in Australia. “Because of laws like Section 18C, certain topics are now off the table. You can’t talk about them for fear of being sued. What is worse is that this law doesn’t even achieve what it’s meant to. We’ve had Section 18C for over twenty years now and all that it has proved is that banning supposedly racist speech doesn’t actually help to stop racism at all.”
Footnote: The QUT case involved three students entering a vacant Aboriginals-only computer lab and being told to leave by Ms Prior because they weren’t Indigenous. Various students then commented on a QUT Facebook, including
# “I wonder where the white supremacist computer lab is…today’s your lucky day, join the white supremacist group and we’ll take care of your every need”
# A QUT lecturer wrote: “It seems a bit silly to kick someone out of an indigenous computer lab for not being indigenous when there are computers not being used” and queried whether Prior was in breach of QUT anti-discrimination policy by asking the students whether they were indigenous.
# Another student wrote that the lab was “more retarded than a women’s collective”
# Another wrote: “My Student and Amenity Fees are going to furbish rooms in the university where inequality reigns supreme? I believe if we have to pay to support these sorts of places, there should be at least more created for general purpose use, but again, how does these sorts of facilities support interaction and community within QUT? All this does is encourage separation and inequality. The psychology of living in the past is dangerous, and these ‘disadvantaged’ people will only stay in their given ‘seat’ in society iif that situation is reinforced. There is a hypocrisy and bureaucratic taint in all attempts at making ‘special’ things for people who are ‘deemed unequal’ in order to ‘help make tem equal’. If you deem them unequal, well those poor bastards have no hope now. You’ve tainted them. I think the worst thing to do to a human is to tell them they’re unequal. They will forever doubt their integrity and ability.”[ii]
[i] Abbott writes in the May edition of Quadrant that his failing to repeal S18C was a significant reason for his loss of office. He wrote, “S18C is clearly a bad law. Our debates should be polite but they should never be guaranteed not to offend. With hindsight, I should have persisted with a simpler amendment along the lines of Senator Bob Day’s later private members’ Bill.”
[ii] Forrester, J et al, No Offence Intended. Connor Court, 2016 p 180-182