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April 29th 2016 print

Tony Thomas

Hundreds More Reasons to Detest 18C

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

18c logo IIIPeople 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]

Tony Thomas’s own Connor Court book, “That’s Debatable…60 Years in Print” will be launched at Gambero’s, 166 Lygon St, Carlton, 6.30pm Thursday May 19. Buy it here



[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

Comments [7]

  1. acarroll says:

    I don’t see there being any real chance of 18C being removed. The ethnic lobbies, especially the powerful and connected ones, are all for it for very practical reasons — it’s beneficial to their group strategy.

    Ain’t multiculti just dandy!

  2. ianl says:

    > With hindsight, I should have persisted with a simpler amendment …

    Abbott’s comment. Note the self-serving use of the word “hindsight” … pathetic. Foresight is accurate here; he had the chance and squibbed it. He won’t even list here the names of the slippery little groups that whispered in his ear to keep 18C. He should list them openly, without omission or sympathy. Never happen of course – politicians are genetically incapable of truth.

    • Mr Johnson says:

      Yeah, Abbott got some re-eeeaallly bad advice here. Someone, somewhere, said to him that he could attract the Muslim vote by avoiding making any changes to 18c. But also, the Jewish lobby came out hard against modifications. The moment was there, and now its gone, like you say, probably for good.

    • PT says:

      Yes, well the opposition of so-called “moderates” (like old Turncoat) no doubt had a big part to play on his backdown!

  3. Tony Thomas says:

    Comment from James Hargrave:
    As a natural contrarian I helped financially and, I like to think emotionally, a young man in old South Wales who, in drink, had written some impolitic things on ‘Facebook’ or one of these damned things, received abuse, returned the abuse and then been convicted and imprisoned (2 months nominal) for a ‘racially aggravated public order’ offence’ (had a publicity-milking ‘district judge’. i.e. a stipendiary magistrate). He was drunk i/c a smart phone, as far as I could tell. Crass comments and his invective lacked style. But most appalling were the threats (inc. arson) that his family received – mother was off work with the nerves for a month or two. ‘Ordinary’ family, rugby (union) mad, from an erstwhile mining town at the mouth of the Rhondda. His local rugby club, for which he had played and, as far as I could gather, which multiple generations of the family had supported was cajoled into a public disavowal and suspension of him (they the quietly let him back once the caravan of disapproval had moved on to another target). His university suspended him (what had it got to do with them?) and issued the usual vomit-inducing, self-important, public-posturing drivel you expect from such a place. And so on and so forth. He took and failed his finals a year late, but has been in gainful employment in his chosen field of chemical-analysis, been promoted, moved jobs, etc. Sports mad chemistry students aged 21 are not really my natural company, but I thought (accurately) that I recognised the type from my time in Aberystwyth. And in the still rather close and culturally homogeneous communities of the South Wales valleys they presumably don’t know what you can’t say in the equivalents of Fitzroy, because you certainly can say it in Pontypridd. And it was the usual collection of wowsers who took offence.

    A bit of a sideways rant, but I am a virulent supporter of people being able to say what they like and the law keeping its distance.

  4. Renato Alessio says:

    Excellent article thanks.

    One thing that I don’t understand about 18C is whether expressing an opinion can constitute “an act likely to offend, insult, humiliate or intimidate another person”? My understanding is that it is pretty hard to get sued for defamation if one expresses an opinion, as opposed to stating something as fact. Mainly because an opinion is neither right or wrong. Does 18C go beyond defamation law?

    The other thing I don’t understand is exactly what power does the Human Rights Commission have when it calls one before it after a complaint is made. If one goes to a Conciliation meeting – does one really need a barrister? What penalties can the Commission give out, if any? Or is it just a prelude to going to Court – like having to go to mediation in disputes about Wills?

    The main thing wrong with the Act is that it is so subjective.
    Consider this example. A woman goes up to three separate Muslim or Chinese women and says to each,
    “Your dress is terrible, you Muslims/Chinese have a hopeless sense of style”.
    Woman A is offended, insulted and humiliated – lodges a complaint.
    Woman B thinks “There goes that silly old woman again, trying to put me down like she does everyone else around here. I can ignore her or say ‘Tell someone who cares’ ” – no complaint is lodged as the woman isn’t offended, insulted or humiliated, just annoyed.
    Woman C thinks “Hmmm – maybe she has a point, she has pretty good judgment in relation to clothes. I’ll discuss this with friends and coworkers, see if my sense of clothing style needs improvement.” – no complaint is lodged as the woman isn’t offended, insulted or humiliated.

    Thus the exact same act is done to three separate people, but only one is unlawful.
    Regards.