All good stuff. The defamation laws are restrictive but do guard personal rights reasonably well - I never saw why race or groups had to be dragged into it, especially as there was no epidemic of declarations of racial hatred. Quite the contrary. The framers of 18C weren't reacting to anything, it was just to keep the human rights academics/activists happy.

Thanks for the article, Graham. I will though, disagree with the previous/first comment... the defamation laws are hopeless, because it costs too much for people like me to attempt to defend themselves in the courts. I was defamed by the ABC's Media Watch, and again in the Sydney Mornging Herald. In the case of the SMH the Press Council recommended the SMH at least publish a reply from my by way of OpEd - but so far they have avoided even that.

Anti-racist laws are condescending. They assume that non-white people have an inferior capacity to deal with racist slurs than have white people. They assume that non-white people are more prone to offence than white people. They are more sensitive or lack the interpersonal skills that whites have.

This kind of attitude is far more racist than the average ‘slur’ or insult and is actually entrenched in law by legislation such as 18C. Non-white people should be outraged at this and white people should be up in arms at this patronising stance of those who are promoting such attitudes.

It re-enforces all the negative attitudes that non-white kids might take on board. They grow up convinced that there is something profoundly lacking in their make-up which is not lacking in white people. It is systemic racism which permeates the whole of the society and those responsible for legalising it should be named and shamed for their racism.

Yes, i would like to see the courts recover wasted funds, the likes of that woman who sued the students for entering a 'non signed' computer room.

There is little doubt, had she had to self fund that case it would never have started. Waste, waste and more waste, of not only courts time, but tax payer funds.

Shorten as a trade union official, must have gained some glimmerings of labour history which shows that coercive laws to suppress opinion are effective as a deterrent. His statement can only be regarded as gross opportunism.
Phanto. Champions of 18C ignore the ironic contradiction that, ideologically, it involves a form of stereotyping, namely, the patronising claim that there are entire “minority” groups all of whose members are “vulnerable” or “marginalised” or “victimised” and so lacking in courage and conviction as to be quite unable to withstand criticism (“hate speech”) pertaining to their group identity. And usually associated is the no less patronising assessment of all those who do not belong to one of the groups whose feelings are said to be in need of privileged legal protection, that those “majority” outsiders can have no understanding of them.

Graham,

(Your Scanlon's Society link doesn't work..this does
http://scanlonfoundation.org.au/wp-content/uploads/2015/10/2015-Mapping-Social-Cohesion-Report.pdf)

It seems to me that the bigger problem with the way the RDA works is that the decision about whether an offence or an insult occurred is in the hands of the alleged 'victim'. Irrespective of the intentions of the 'perpetrator'. Irrespective of whether he sought to be offensive or insulting, if someone somewhere asserts they are offended and are part of the offended group, then the door is open to take action under the RDA. We saw this when Soutphommasane went looking for people who could claim offence from the Leak cartoon.

For that reason, hopefully, "harass" is probably a better subjective test as to whether a true offence has occurred. It will be much more difficult to assert harassment as opposed to simply feeling insulted since it does presuppose some intent from the 'perpetrator'.

"News is what people don't want you to print. Everything thing else is ads." William Randolph Hearst

The current use of 18C is to close debate into things some would prefer not debated. Bolt was about protecting the privileges of privileged aboringals from scrutiny. Leak was about stopping any discussion as to whether the problems of aboriginal youth was caused by any other than white racism. On the other hand, QUT was probably just about money and the main chance.

Closing down debate doesn't close down debate, it just pushes it underground and in a democratic society that's the last place you want it to be.

Thanks Graham
An excellent piece

Why not leave 18c etc as it stands and install a death penalty for perportrators of the act.
Not too far fetched to imagine the extension of its madness and badness!

I would like to maintain the right to speak the truth rather than pc bulldust. Though all people are equal, all cultures are not. It is obvious by the fact that millions want to immigrate to Aussie that not all cultures are equal. Look at how many people want to immigrate to Iran or Saudi Arabia. Though people are free to choose their sexual activity, highlighting the health risks is not only wise but also a duty of care. Denying children a father is nothing short of child abuse. It seems that 18C while maybe well intentioned became a tool for the incompetent HRC to justify their existance. They have shown themselves to be a disgrace.

Justice Holmes of the United States Supreme Court granted no one the right of speech which would present a clear and present danger. Any speech that does not present a clear and present danger is therefore allowed under US law. Examples of speech presenting a clear and present danger would be yelling ‘fire’ in a crowded theatre or inciting a lynch mob. The defamation laws of Australia would not be possible under the criterion of Justice Holmes. They are an unreasonable restriction of speech. Banning speech because someone may be offended by it is also an unreasonable restriction of speech. I think the position on free speech of the Supreme Court of the United States is reasonable. 18c would not be legal under US law.

I wrote “Self-Determination and Human Rights” which was published by the Indian Ocean Centre for Peace Studies of the University of Western Australia. It makes the case that self-determination, a group right, is inimical to individual rights.

david f,

I disagree that Australia’s defamation laws are unreasonable. I think Australia’s defamation laws do a better job of balancing the right to free speech with the right to protection of reputation than those of the US.

In the US, the claimant must prove malice on the defendant’s behalf. In practice, this is virtually impossible. So, in effect, what results is the ability to defame others with virtually no chance of any repercussions. And don't some know it!

Similarly, 18C is balanced by 18D. But you won’t hear about 18D around here.

Good article by Graham, exposing the flaws in 18c.

The trouble with it, was straight away demonstrated by some groups
who sort to use it to shut down ligitimate debate on issues they didn't
want discussed and didn't want to acknowledge.

This will always be the trouble with it, if it is not changed.

In the case of Bill Leaks, the courts should have tested for evidence of truth in his cartoon before making any charges against him.
A simple search of findings by government committees including Aboriginal representatives,that had already assessed that dysfunction(a nice word for Alcoholism and child abuse)
was one of the main causes of Aboriginal criminality in young indigenous offenders.

I don't know the whole story, if Bill Leaks was summoned to court under18c, I do think
the courts should have investigated whether the question he asked in that cartoon, could be backed up with any evidence, before they harassed the man. Surely they could have realised that the government had investigated Aboriginal Crime causes.
Wouldn't have taken much to obtain a copy of it

Hi Graham & David,

I agree that group rights and individual rights are incompatible. One problem is that the notion of 'group' is incoherent: it boils down to somebody, often self-appointed, being the spokesman for a 'group', and simply imposing his/her own views on the rest of society as the authentic 'group' view. There is usually no such thing.

For example, Indigenous people - at least in the observations of this non-Indigenous person - are extremely diverse in pretty much every way. Even defining who is one, may be contradicted by somebody else. This probably one reason why it has been so difficult, ever since the days of the National Aboriginal [Indigenous] Consultative Conference [NACC] back in 1973, and up through ATSIC and the current manifestation, to find common ground.

The unfortunate upshot of all that has been that hot-shot elites can presume to speak for 'the people'. I recall one time when I was discussing 'community' needs with a self-chosen spokesperson who kept declaring that the 'community' wanted this or supported that, when it was clear that it was only her own aspirations. [Actually, I think some of those self-appointed 'leaders' DO think that they speak for the 'community', but nobody ever asks it].

The major problem with subsuming everybody under the same [i.e. the elites' ] tarpaulin is that individuals are denied the right to choose their own destinies: policies are designed (by the elites) which may promote the interests of the elites but ignore their legitimate aspirations, leaving them with the only option, i.e. to distance themselves from the people'.

Of course, realities in a diverse society mean that any illusions about group solidarity and unanimity are pretty futile: in a relatively free society like Australia's, people can usually do what they like in relation to being dictated to by some jumped-up self-appointed 'leader'. So paradoxically, governments' recognizing only those self-appointed 'leaders' inevitably leads to a fragmentation of that population.

Joe

.

Dear Graham,

.

An excellent, well-documented article in support of the Prime Minister’s proposed amendment to article 18C of the Racial Discrimination Act.

Though you do not mention it in your article, I am sure you are aware of the results of the latest Essential Report poll indicating that 45% approve of changing the Racial Discrimination Act and 34% oppose changing it.

As you do not state your own position clearly, I am wondering if you maintain the recommendation you made in your submission to the Parliamentary Joint Committee inquiry last December - to remove 18C from the Act entirely.

Whatever the case, my personal vision of the problem is quite different. I thoroughly agree with all the facts and evidence you provide. I also share the Prime Minister’s diagnosis of the need to find the right balance between the protection from racial vilification on the one hand and the right of individuals to freedom of expression on the other. However, in my view, the former is fine. The problem is the latter. Our freedom of expression is not sufficiently protected.

Australia is the only democratic country in the world without a Bill of Rights. The problem is that some rights are protected at the federal level, including 18C, but there is no specific law, similar to the Racial Discrimination Act, that provides strong general protection for freedom of expression. The result is that those rights that are protected take precedence over any consideration for freedom of expression.

All those well-documented facts and evidence you so rightly cite in your article attest to the lack of effective, comprehensive protection for freedom of expression in Australia.

Without realising it, most of us mistakenly think that we live in a free, democratic society.

The most effective solution would be for our our political leaders to take their courage in their two hands and install an entrenched bill of rights in our national constitution – which can only be achieved by referendum. Regrettably, of the 42 constitutional referendums since federation in 1901, only 8 have passed.

.

.

The rejection by the Senate last night must have come as a bit of a disappointment, not only to the Prime Minister and the Attorney-General, but also to many of our compatriots who felt it should be adopted.

It was, nevertheless, a wise decision. Watering down 18C would have created more injustice than the one it was designed to fix. Even the Deputy Prime Minister and leader of the Nationals in the coalition government criticised the Liberal Party for catering to its fringe "extremities".

In the end, it all turned out to be “much ado about nothing”. The problem remains and, as has just been clearly demonstrated, there’s no quick and easy fix to it.

That’s the end of the story, I’m afraid, so far as the present coalition government is concerned - given the opinion of the Deputy Prime Minister on the matter - but, it’s probably just as well.

I feel a bit sorry for Malcolm Turnbull, though. He seems to be a fairly decent sort of bloke and, apparently, was quite sincere in thinking it was a good solution.

Who am I to criticise him - despite the fact that, as I indicated in my previous post, there was never any doubt in my mind that what we really need is an entrenched bill of rights (including the right of freedom of expression) in our national constitution.

Hopefully, our future political leaders will grant us the opportunity of voting on a much needed, entirely new, constitution shortly after we vote on a republic, having observed a respectable delay following the end of the reign of our dearly-revered Queen Elizabeth II.

Until then, I guess we’ll just have to be patient and bungle along as usual with all those regrettable inconveniences of an imbalanced 18C - that restrict our freedom !

.

Dear Banjo Patterson,

I don't quite understand how 18C of the Racial Discrimination
Act restricts our freedom when Section 18D of the Act provides
exemptions. It states that 18C does not render unlawful anything
said of done reasonably and in good faith for various
purposes, including artistic work and responding on events or
matters of public interest.

Dear Foxy,

Sophisticated racists can cloak their prejudices in polite language or produce rationalisations which will free them from prosecution through 18d. The unsophisticated poor devil on the edge of nothing will generally be the only kind of person 18c can touch. It is class legislation. It would be better to have a fairer society including better public schools so there are fewer poor and ignorant than to have 18c which shuts up the poor and ignorant.

Australia has other mechanisms protecting the powerful from criticism. Jo Bjelke-Petersen used the threat of Defamation action to shut up people who might criticise him.

Discrimination in housing, employment and other areas should be forbidden by law and our law enforcement bodies given the training and encouragement to enforce such laws. Acts such as discrimination should be forbidden by law, but speech should be distinguished from acts and given maximum freedom.

Free speech can point out the flaws in our society and gives those on the margins the right to voice their discontent in the manner they choose. It is too valuable a right to limit its application except when it provokes a clear and present danger.

Dear david f,

Thanks for that. Your post was by far the best argument I’ve seen against section 18C. It was an interesting approach, too, given that what you suggest as a replacement to 18C (which would work) are certainly not the kinds of alternatives that one would see coming from your typical anti-18C advocate.

They’re “communist”, after all!

You (understandably) have a very American approach to freedom of speech (which has been criticised in our High Court as “semi-absolutist”), so I’m curious: what do you think of the inability, under American constitutional law, for politicians to legislate against the offensive, disrespectful, and disrupting actions of the Westborough Baptist Church (many of whom are constitutional lawyers themselves, and are always threatening law enforcement agencies with legal action)?

Personally, I think it’s unfortunate that the hands of lawmakers in the US are tied, in that case, by the US constitution’s guarantee to freedom of speech, and see this as an argument against a bill of rights for Australia.

Dear Davif F,

Thank You for your comments.

We don't have a Bill of Rights in Australia and
to me the Laws that currently exist (and there are
quite a few) that already inhibit free speech are
complex. Therefore I am still leaning towards 18D
of the Racial Discrimination Act which as I quoted
earlier "provideds exemptions. It states that 18C
does not render unlawful anything said or done
reasonably and in good faith for various purposes,
including artistic work and reporting on events or
matters of public interest."

I see no need to legislate against the offensive, disrespectful, and disrupting actions of the Westborough Baptist Church. I believe those they attract by their actions are far outnumbered by the thoughtful Christians who through awareness of the consequences of their irrational faith as practiced by of the Westborough Baptist Church may question their faith or at least appreciate the separation of church and state in the United States.

One of the steps that led to the separation of church and state was the revulsion of the Christian Sebastian Castellio against the execution of Servetus in Calvin’s Geneva. Castellio said, “To kill a man is not to defend a doctrine, but to kill a man."

http://www.onlineopinion.com.au/view.asp?article=10725 points you to the article I wrote on the subject.

Free speech is risky. A clever demagogue may persuade people to abandon their freedom. However, if government bans the speech of the demagogue and others the loss of freedom becomes a certainty.

Is more damage done by letting the Westborough Baptist Church continue their actions or stopping their actions along with that of others? I think more damage is done by shutting them up. Special cases make bad law. You cannot shut up that church by legislation without shutting up others.

I think I’d have to disagree with you there slightly, david f. Picketing at funerals is particularly heinous behaviour, and I think freedom of speech (like any other freedom) needs to be balanced with other freedoms such as, in this case, the freedom to not be harassed when burying a loved one.

I can’t imagine who else would be negatively affected by preventing picketing at funerals by, say, setting a large distance at which they must keep to do their picketing. That seems like a pretty safe way to legislate against it without accidentally capturing other more innocent behaviours. But even if some more innocent behaviours were captured by such legislation, I think it would probably still be worth it. It can always be undone if it’s not.

Here is a link from the Australian Law Reform Commission that
might be of interest:

http://www.alrc.gov.au/publications/laws-interfere-freedom-speech

Dear AJ,

No special legislation is necessary. All Australia and the US except for Louisiana follow English Common Law. Under Common Law harassment is a criminal offense so the WBC and the Australian nutters who would harass women going to abortion clinics can be made to keep their distance.

Dear david f,

I probably need to look into the situation a bit more by the sounds of it. I don’t know much about American law other than when it was compared to Australian law in my legal studies, but from what I understand, it hasn’t been that easy when it comes to dealing with the Westborough Baptist Church.

Apparently police who try to move them on are threatened with lawsuits (some have even hypothesised that the church is nothing more than one big legal scam pretending to be a church). According to Snyder v. Phelps, the Phelps family appear to know precisely what distance to keep in order to achieve maximum emotional pain for their victims while simultaneously avoiding harassment laws. Their legal expertise seems to enable them to tread a very fine line to ensure maximum harassment with minimal chance of legal repercussions.

But this is probably more a failing of the harassment laws. Which are a bit off topic.

.

Dear Foxy,

.

You wrote :

« I don't quite understand how 18C of the Racial Discrimination
Act restricts our freedom when Section 18D of the Act provides
exemptions. It states that 18C does not render unlawful anything
said or done reasonably and in good faith for various purposes,
including artistic work and responding on events or matters of
public interest »

That’s correct, Foxy, and that’s how it should be. But I received a clip from Malcolm Turnbull’s office in Sydney on 22 March explaining his initiative in the following terms :

« … over the past months, cases involving the late cartoonist, Bill Leak, and the QUT students have shown that section 18C has not been working well. We’re making changes to restore confidence in the Racial Discrimination Act and the Human Rights Commission … [this] … will better target and prohibit the conduct which is at the heart of racial vilification. We’ll also introduce the “reasonable member of the Australian community” as the objective standard by which section 18C should be judged … ». Here is the clip :

http://www.facebook.com/malcolmturnbull/videos/vb.53772921578/10155219691906579/?type=3&theater

The late Bill Leak’s submission to the Parliamentary Joint Committee inquiry last December also sheds some light on the problem. Here is the link - Bill Leak’s submission is N° 169 :

http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Submissions

.

Neither 18C nor 18D mention anything about “freedom of speech” or “freedom of expression”. Both terms are employed indifferently by politicians, though the latter is obviously broader and more appropriate than the former.

Also, most commentators invariably deny that Australia is racist. That may be so, but if it is (and I sincerely hope it is), it is a relatively recent development. British colonisation began in 1788 (230 years ago) and only ended completely and definitively 198 years later, with the Australia Act 1986 – though the British Crown remains our Head of State.

I think it’s true to say that the colonial period was tainted with a certain amount of racism - particularly since the White Australia policy was in force from federation in 1901 to 1973.

.

.

Perhaps I should add that the White Australia policy ended with the Racial Discrimination Act 1975 which came into force retroactively on 1 January 1974.

This is the Racial Discrimination Act that Malcolm Turnbull attempted to amend - happily, without success.

.

where is 18C when you need it. That's right its racism is only from whites.

Ladies child is to white to be accepted in ' multicultural group' Yep in Australia. The left dogmas are putried. I suppose Triggs is still looking for guns where there is no guns. What a waste of space is our ' human rights commission.'

ww.dailytelegraph.com.au/rendezview/miranda-devine-reverse-racism-is-now-acceptable-in-australia/news-story/98d895ff84f8014bb3a0a5141e24f6ac?utm_content=SocialFlow&utm_campaign=EditorialSF&utm_source=DailyTelegraph&utm_medium=Twitter

Dear Banjo Paterson,

Thank You for your post and explanations.
They are appreciated. At least there is a debate
happening currently about people's rights and
hopefully the government will (with enough
political pressure) get it right sooner than later.

Dear AJ,

You wrote: Apparently police who try to move them on are threatened with lawsuits (some have even hypothesised that the church (Westborough Baptist Church) is nothing more than one big legal scam pretending to be a church).

Here you express a thought which is used by the followers of Abrahamic religions to deny some of the nature of their religions. The WBC is not a scam. It expresses the prejudice of Christians toward those who don’t share the beliefs of that branch of the religion. When one judges Christianity by its horrible record in history Christians have various defence mechanisms:

“The people who have done those horrible things aren’t really Christians.”

The WBC are really Christians. They are no more a scam than the rest of Christianity.

“Don’t judge Christianity by what people who call themselves Christians do. Judge Christianity by the ideals it aspires to.”

The problem with the latter defence is that people suffer from what people who call themselves Christians do – not from the ideals. One can questions why those people who call themselves Christians aren’t inspired to conform to the ideals.

A defence shared by all the Abrahamic religions is that they are carrying out the will of God. Some Jews claim God has granted them all the land between the Jordan and the Mediterranean so they have a right to settle anywhere in the area. The Muslim claims are more extensive. The lands controlled by Muslims are called Dar es Salaam (abode of peace) and those outside of their control are called Dar al Harb (house of war).

https://en.wikipedia.org/wiki/Divisions_of_the_world_in_Islam

Robert Ingersoll in the nineteenth century was a power in the US Republican Party. He would not fit into the party currently. Here is what he had to say on the Abrahamic belief in an afterlife.

“I have little confidence in any enterprise or business or investment that promises dividends only after the death of the stockholder.”

Dear Foxy,

It is quite possible that the government will never get it right.

Dear David f.,

Then it's up to us, the voting public to make
sure that they do.

.

Dear Runner,

.

Thanks for the link but, unfortunately, it didn’t work.

However, I managed to find Miranda Devine’s Daily Telegraph article “Reverse racism is now acceptable in Australia” from the address in your link.

I also looked-up the Alexandria Park Community Centre on its web site. It looks nice and the idea of a multicultural playground and garden is great. But the centre’s “facilitator”, aka manager, Jo Fletcher, seems a bit stupid, or perhaps psycho-rigid in his interpretation of the term “multicultural”. Apparently, he thought it meant “all world cultures other than Australian”.

As he doesn’t seem to have had any problem welcoming families from around the wold in his “multicultural” community centre, he doesn’t appear to be the least bit racist. Also, there is nothing to indicate that he is not an Australian of European extraction, himself.

If he had been Aboriginal, African, Chinese or anything other than Caucasian, you can bet your boots that Miranda Devine, who is a notoriously controversial, conservative, right wing, social and political journalist, would have made it quite clear in her article.

Presenting as racist the act of a white Australian (the centre's “facilitator”, Jo Fletcher) in refusing access to the centre to two other white Australians (a mother and her child) on the basis that the centre is exclusively “multicultural”, is just as stupid as the act itself. His refusal has nothing to do with “reverse racism”, as Miranda would have us believe.

At least she had the honesty to indicate that, alerted to the problem, the “Education Minister, Rob Stokes, and his department, to their credit, instructed Fletcher to allow all families to attend the playgroup”.
.

That said, Runner, 18C applies to everybody in Australia, not only Australians and not only to “whites”. Nobody has a monopoly on racism. Some of the worst acts of racism that I, personally, have witnessed occurred in Africa, among people of different ethnic origins.

I see no reason to privilege any particular community as more (or less) racist than any other, whatever its colour, ethnic origin, religion or nationality.

.