Crossbench Senator David Leyonhjelm

Yes, David Leyonhjelm, even white people can make complaints under 18C, but statistics suggest your case probably won’t get very far, despite the constant complaints about the law being used to “silence” people.

Leyonhjelm announced today he had lodged a complaint against Fairfax’s Mark Kenny over a recent column in which Kenny called the Liberal Democratic Senator an “angry white man”. As his former staffer Helen Dale said, Leyonhjelm is trying to “troll” the law.

He joins others including One Nation’s Malcolm Roberts, Liberal Senator Cory Bernardi, Derryn Hinch, The Australian newspaper and Andrew Bolt who all want section 18C of the Racial Discrimination Act to go, on the basis that it has been “hijacked” by “activists” using it to stifle free speech.

In a recent interview, Roberts made the absurd claim that section 18C was devised by then-prime minister Julia Gillard in 2011 to “nobble Andrew Bolt” in the case he lost concerning a series of articles questioning the heritage of light-skinned indigenous Australians. But as Crikey already pointed out, section 18C was introduced into the act during the Keating government in 1995.

Section 18C makes it unlawful to offend, insult, humiliate or intimidate a person on the basis of their race, colour or ethnic origin.

In an op-ed in favour of repealing 18C in February, the Institute of Public Affairs’ Simon Breheny said that the 2011 Bolt case “launched 18C into mainstream Australian consciousness” and resulted in “political activists and their lawyers” realising they could use the section to “aggressively pursue political goals”.

The most common perception is that 18C is used for Bolt-style cases, to take a newspaper columnist to task for an article (even though as the judge pointed out in the Bolt case, there were serious factual errors in Bolt’s article). But the facts on the use of 18C don’t bear this out.

According to the Human Rights Commission’s annual reports, the total number of complaints under the Racial Discrimination Act has gone down in the years since the Bolt case, when the number of complaints was at 826, down to a low of 480 in 2013-2014. Last year there were 648 complaints made under the RDA. The number of complaints made under 18C increased to a peak of 181 in 2012-13, up from 128 in 2010-11, but that dropped to 116 in the 2014-15 financial year.

RDAgraph

18Ccomplaints

The number of complaints particularly focused on print, radio and TV columns — i.e. those like Bolt — has remained stable, at 19 in 2010-11 and 19 in 2014-15.

According to the most recent stats available for the 2014-2015 financial year, complaints made under the RDA comprised 24% of all complaints to the HRC, which was the second most cited grounds for complaint. The most complaints were made under the Disability Discrimination Act.

Of the 561 complaints received by the commission in the year, more than a third (38%) are made by people who were born in Australia compared to 29% from people born outside Australia. Indigenous Australians make up 38% of complainants.

Complaints relating to TV, radio and news content comprised just 19 out of 116 complaints about racial hatred in 2014-15. The most common complaint was employment, followed by complaints against shops.

More than half — 51.5% — of complaints were resolved through conciliation, with two-thirds of cases sent to conciliation successfully resolved. Very few cases ever make it to court.

The Australian Human Rights Commission has a helpful log of some of the resolved conciliations under the RDA. Far from stifling people like Bolt, the cases are often employment or retail incidents where a person has been denied service or harassed. Many of the complainants are indigenous or immigrants, but not all. For example, this case resulted in $10,000 compensation and an apology:

“The complainant is of British national origin and claimed colleagues bullied and harassed him because of his nationality and immigrant status, including by calling him a ‘Pommy c**t’ and saying ‘I hate immigrants’. The complainant claimed his employer terminated his employment after he complained about the treatment.”

In another case, a person who was denied service received $2000 compensation:

“The complainant claimed he was denied accommodation at the respondent hotel because he is Anglo-Australian. On being advised of the complaint the hotel indicated a willingness to try to resolve the matter through conciliation. The complaint was resolved with an agreement that the hotel pay the complainant $1,000 and contribute $1,000 towards costs he expended. The hotel also acknowledged that racial discrimination is unacceptable and unlawful in Australia.”

Some of the larger payouts tend to involve a person leaving employment as a result of the behaviour that launched the case, such as this one for $22,000:

“The complainant is Filipino and has dark skin. She worked as a teacher’s assistant at the respondent private school and claimed that over a number of years two managers made offensive comments towards her, including referring to her as ‘black tart’, ‘black bitch’ and ‘black slave’. The complainant said one of her managers was transferred to a different work site after senior management became aware of the behaviour, but the other manager continued to supervise her. She claimed that manager micromanaged her performance and the school later transferred her to a different worksite. The complainant ultimately resigned.

“On being advised of the complaint the school and the two managers indicated a willingness to try to resolve the matter by conciliation.

“The complaint was resolved with an agreement that the school pay the complainant $13,000 as damages for pain and suffering and $9,000 as compensation for legal costs.”

Peter Fray

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