Federal

Mar 20, 2014

Racial vilification: why defenders of section 18C fail

The defence of section 18C of the Racial Discrimination Act falters on the key issue of subjectivity.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

“There has been too much heat and not enough light on these matters,” Race Discrimination Commissioner Tim Soutphommasane said about the debate over sections 18C and 18D of the Racial Discimination Act. It’s one of the few statements about the subject that would draw universal agreement.

Soutphommasane made the comment near the start of a long discussion of the issue in a lecture at the start of March. You’d think a 8000-word piece by a defender of 18C would have reform advocates licking their lips in anticipation of the intellectual challenge of rebutting it. No such luck. As if to prove Soutphommasane’s point, The Australian’s in-house pseud, Nick Cater, this week dismissed Soutphommasane’s detailed discussion as “impenetrable”, “nit-picking” and offering a “laboured argument irrelevant to the present debate”. That was because, Cater suggested, the real issue was that “liberty is not just a matter for philosophical discussion but something one feels in one’s gut”.

Free Trial

Proudly annoying those in power since 2000.

Sign up for a FREE 21-day trial to keep reading and get the best of Crikey straight to your inbox

By starting a free trial, you agree to accept Crikey’s terms and conditions

21 comments

Leave a comment

21 thoughts on “Racial vilification: why defenders of section 18C fail

  1. 4567

    I find this article impenetrable.

  2. Matthew Drayton

    @4567 Ha!

  3. Will

    A surprisingly weak piece by Keane. Tim’s remarks were hardly the strawman he alleges, and Carter’s airy invocation of truthiness is the obvious validation of his criticism and it’s entirely typical of most coverage of the matter. Keane’s more idiosyncratic may be in a different category, but him and David Marr are hardly a good proxy for the mainstream media treatment which has been appalling.

    It is fair to say that the RDA has been completely mischaracterised by most people in the media, including almost all strident critics. Such critics don’t bother to explain that s18C is subject to an objective test overlayed by the courts in considering whether the section is even triggered, and nor do they bother to explain the operation of s18D which provides every conceivable protection for triggering s18C via creative and journalistic expression that’s good faith or public interest. Indeed, Keane himself conveniently omits this major point of qualification in his piece.

  4. Cozmond

    To add to Will’s comment, Keane your argument falls down because it fails to consider how the court’s have interpreted section 18C and similar provisions in state legislation. This is important because that shows how the legislation works in practice and not just a theoretical reading of the words of the section. It is not whether the victim has subjectively felt hurt but whether a reasonable person (ie an objective test) would be offended, insulted etc. Moreover, the courts have held that a mere slight is not enough to fall foul of the provision – it has to much more significant akin to humiliation. As Will says above, given the defences of good faith in s 18D there is coverage for most media commentary. That Bolt fell foul of this law and couldn’t mount a defence of good faith commentary says it all. He got his facts wrong. Humiliated a group of people on the grounds of their race and refused to acknowledge the humiliation nor his errors of fact.

  5. David Hand

    18c can and must be changed. Two main objective reasons for this are-

    1. A group of academics were able to successfully convict Andrew Bolt by this means. The substance of Bolt’s articles, though badly written, remain – that awards and scholarships established for the advancement of a disadvantaged section of our community are regularly scooped up by people with no discernible disadvantage.

    This is an opinion he was entitled to express until he was convicted in court. The ability of the act to deliver such an outcome demonstrated that it is a bad law and must be changed.

    2. Roxon’s attempt to extend 18c to other forms of discrimination failed at the first hurdle due to the vacuousness of its thinking and its thought bubble nature. Though people were willing to leave 18c alone in the RDA, they were unwilling to see it extend to religion or s*xuality et al.

    It is ironic that the action taken by the 6 complainants in the Bolt case will bring about its demise and make more difficult the protections of other more worthy cases for legal protection from r*cial vilification.

  6. bushby jane

    I don’t see the point of ‘fixing’ something that isn’t broken-this law has hardly ever been applied, and has only come to light as Abbott’s man Bolt copped it for getting his facts wrong basically. Everything Abbott is doing (actually undoing) is either for mates or the Catholic church, nothing that really needs to be done or undone.

  7. Will

    What conviction? Bolt was subject to an order under civil jurisdiction of much less concern to liberty than his actions would be under defamation. A conviction is a matter of criminal jurisdiction. Like most critics, you simply can’t talk about the RDA without speaking in ignorance.

  8. AR

    What will the next mad T-Bag idea, “an armed society is a polite society” sorta thang?
    I felt soiled to have the saponaceous A/G slither around my opinion centres but, IF I believed in the total integrity of both the Ruling Class (and its clercs)I would go free-for-all.
    So how do we make it free?

  9. Patriot

    Why special treatment for race, ethnicity, etc? Why not legislate against offending on the basis of weight, height, hair colour, having a little pecker, and so on?

  10. Dubious Virtue

    While this law is rarely used it’s effect is certainly far reaching. There are so many topics on which I would never comment publicly because of self censorship. Like being called a pedo, being called a racist at the slightest drop of the hat is something I want to avoid. No longer can anyone look at children playing in a yard without risk… and no longer can so many subjects be talked about without being labeled a racist. I tried to explain why wearing the hajib and burqua is just as anti-feminist as making girls play only with pink toys to a small group the other day. Never again.

Share this article with a friend

Just fill out the fields below and we'll send your friend a link to this article along with a message from you.

Your details

Your friend's details

Sending...