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Oct 19, 2016

Bill Leak almost certainly breached 18C, but he has a rock-solid defence

Yes, Bill Leak's cartoon probably breached 18C of the Racial Discrimination Act. But lawyer Michael Bradley says his salvation will be section 18D.

Bill Leak is, presumably, enjoying his status as a one-man outrage generator. Why he’d want to be that person is unknowable. There is a case for not acceding to his desire by giving his work free publicity and leaving it known only to the demographically specific readership of The Australian. Faint hope though.

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8 thoughts on “Bill Leak almost certainly breached 18C, but he has a rock-solid defence

  1. Desmond Graham

    Looked at the cartoon excellent social comment – An aboriginal law enforcement officer giving practical approach to another member of the same cultural group – fantastic juxtaposition showing the social dilemma.
    Now there is a professional class of people – the offended – who use the multimillion dollar vehicles -the Commissions and Commissioners as a mouthpiece for their own grievances against the normal world -should these commissions be classed as variant of national mental health programs?
    I have have a good academic suggestion – could an economics graduate or sociology graduate do a Ph.D in the number of Commissioner/Commisssioners in Australia- an Excel spreadsheet would suffice as a starting point.
    Didn’t Crikey have an interesting article recently on the useless debt the nation is carrying ?
    Let’s do the crowd sourcing thing -what can I be offended about? – I would like to join the OFFENDED [the OFDD community]- please leave list in the comments. OR have a plebiscite on the topic.

    If you don’t agree with me you are a grubby OFFENDOPHOBE.

  2. Hugh Harris

    Michael Bradley: I feel you’ve abandoned your usually reliable judgement in this article- especially these two assertions without proof.

    [1. ]”Leak’s cartoon is repulsive, pig-ignorant bile [2.]that was designed to hurt an already marginalised racial group and achieved that aim.”

    1. Way over the top mate. We’ve had a Royal Commission into the issue Leak speaks of. Noel Pearson agrees with the sentiment of the cartoon, that parental responsibility is a key issue in indigenous communities. Community sentiment is divided on whether Leak’s view is racist or not. Personally, I think we need to be able to make generalisations about community groups; be they races, ethnicities, genders, religions, sporting clubs, nationalist political parties, news-groups owned by Rupert Murdoch, the ABC and Australian Tennis Players.
    How else do you address issues arising out of structural defects or other causes within particular community groups? If you cannot discuss these matters without fear of a spurious and potential costly complaints, then we have a problem. Why no mention of the QUT students?
    2. Are you a mind reader?

    It is no answer to say section 18D provides exemptions to 18C. 18C already creates uncertainties about how vague terms like offend, insult and humiliate will be applied in any given situation. Section 18D compounds these uncertainties.

    The tone of your article seems to brook no dissent – any disagreement would be viewed as prejudice. As if it’s only racists who defend 18C. That’s a bit of a gross generalisation, don’t you think?

    And, not everyone agrees with the rather specious argument that 18D (which, tell Waleed also, most people DO know about now) mitigates the obvious subjectivity of 18C.

    From ABC http://www.abc.net.au/news/2016-08-31/section-18c-too-broad-and-too-vague-and-should-be-repealed/7801244
    “For example, all exemptions in 18D must be done “reasonably and in good faith”. This has been held to impose a “harm-minimisation requirement”. But what does this mean? Reasonable minds may differ whether a statement was a heartfelt opinion or an insult that could have been expressed more sensitively.”

    How about Crikey speak to the ABC about reintroducing The Drum under an independent banner, and then perhaps the contest for clicks might not be such an obvious influence on editorial comment.

    1. thelorikeet

      Hugh, I do not know if you are legally qualified. I am. There is a fundamental error in your proposition that 18D is ‘no answer’: its entire job is to provide an answer. That is its purpose, its job, its effect. IT IS PRECISELY RELEVANT. Amen

      1. Hugh Harris

        I doubt you are. Most lawyers don’t use capitals unnecessarily because it makes you sound ANGRY(!!&%*).
        The point you object to was a quote from the ABC article written by 3 lawyers. My point being: not all lawyers agree that 18D rescues 18C.

  3. Venise Alstergren

    Perhaps all the legalese hides an even more pertinent issue. Is the cartoon displaying a known fact? Namely, as Noel Pearson seems to suggest, many of the indigenous woes come about because of parental indifference. This being the case, Bill Leake has done what cartoonists are paid to do. To point out the good and the bad about society.

    1. Desmond Graham

      Venise -you are quite right – that is part of the malignancy of law and lawyers in our society- they miss the point that social problems and society are not dependent regulatory frameworks but upon the actions of the populace.
      Most lawyers have only a law degree which ill prepares them for social interaction- law teaches the enforcement of rights not duties to society.

  4. Jack Robertson

    Fine if depressing summary, MD.

    So the state of play is that 18D means that the only time 18C has a point is when ‘bad faith’ can be proven to judicial standards. In which case there would be other existing laws which aggrieved parties could equally use to proceed, right. Defamation laws; criminal laws relating to harassment, incitement, intimidation; even an APVO. Genuine bigoted abuse that has a reasonable prospect of successful prosecution under 18C/D just doesn’t, um…need 18C/18D. Indeed, there’s a strong argument that 18C/D would be your ‘worst’ legal avenue if you have a genuine (bigotry based) intimidation/harassment/etc issue, isn’t there? An AVPO or Commonwealth Section 15 (or referred State laws) angle doesn’t carry that 18D type ‘good faith’ disclaimer – set that ‘high’ bar – quite so dauntingly. If you are being provably threatened/harassed/etc under Riki all laws, say, whether or not it’s an art/fair opinion is not so explicitly relevant; safer to try to nail the grub who paints racist graffiti on your mosque wall under public order or vandalism laws, presumably.

    But that, of course, removes the exceptionalist identity politics victimhood/privileged guilt trip element from the civic interaction, MD, which is of course what 18C/18D is really all about. It’s a ‘law’ put into place to do the impossible (and undesirable): make it vaguely ‘illegal’ (and thus vaguely ‘punishable’ by law) to say, vaguely, ‘yucky’ things. And the inevitable and mournful outcome of such legal fudging has (surprise) turned out to be that its most prominent use has been in response to expressed views that we as a society find unpalatable not because they are ‘bigoted’ (whatever that even means) but because they hit home and they sting, someone, somewhere, with the wherewithal to make a HREOC case of it (which invariably means they’re not really a ‘victim’ at all, except as knowingly chosen role play). 18C/18D exists primarily as a conspicuously compassionate sop to the troubled conscience of a society that can’t quite bear to square up fully to the truth about how we treat certain groups in practical outcome terms. We distract ourselves from our sustained failure to actually deal with the ongoing tragedy of indigenous Australia by screeching ‘racist!’ at Leak. We distract our moral gaze from our archepalago of offshore concentration camps by creating a vague, pointless law ‘against’ saying racist things about the Sand Niggers (oops, oh dear me, report me, Crikey) we keep locked up and rotting there. We channel moral indignation that would be better directed at an Israel that insists on violently aiding and abetting its kookier citizens to steal land that doesn’t belong to them…into increasingly contrived hysteria about ‘the new anti-semitism’, generally on little more basis that some harmless Hitler fetishist’s fringe-crank cyber-muttering. We increasingly devote millions and millions of public dollars and tens of thousands of decent and well-meaning but utterly effete man-hours, via legally and morally toothless ‘public shame frenzy’ contrivances just like this one, to what is an elaborate exercise in hand-wringing self-absolution. At least the Catholics get their sinners to reel off some Hail Maries as penance.

    Michael, with respect this is shit law, shitly thought out, shitly framed, shitly prosecuted (ie almost never, and then only using existing laws’ metrics and benchmarks) and shitly wasteful to administer. It almost always has a shit (deeply unsatisfying) impact on complainants and defendants alike, providing little to no real recourse for authentic victims of hateful bigotry and endless rich pickings for the totes cynical: vexatious litigants, Op Ed grandstanders, ‘free speech’ obsessives, professional victims and would-be martyrs alike…

    Sometimes when both sides in a case are equally unhappy with how a law functions in practice, it doesn’t mean you courty lot have ‘got the balance right’. It just means your law’s fucked.

    PS: if you genuinely think Bill Leak has drawn a ‘racist’ cartoon here, you’re a philistine. Such a response is of the dismal family (minor twig!) of regarding Merchant as anti-semitic or Brideshead as elitist or Lolita as misogynist/sexually creepy. It’s just…thunderingly point-missing and tone deaf to talent. Dinner party conversations at your place must be a right hoot, mate!

    Cheers, a good, illuminating article.

    1. Jack Robertson

      ‘Riki laws’…. criminal law…grr spellcheck.