Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

I might slip down to the bottom of the sea… What if Kanapathy was a prick? #auslaw #racism #auspol

Have I told you lately how much I love the Racial Discrimination Act?  I do.  I absolutely love it.  I’ll never begin to understand why my fellow conservatives don’t like it — longstanding grudges against minorities, I suspect — but the hatred of it from progressives is utterly baffling.

My favourite two sections exemplify how I think rights should be conceptualised: a synthesis of two competing, irreconcilable assertions by two rational and morally excellent parties.  Here we go:

Section 18C

It is unlawful for a person to do an act, otherwise than in private, if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Section 18D

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)  in the performance, exhibition or distribution of an artistic work; or

(b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)  in making or publishing:

(i)  a fair and accurate report of any event or matter of public interest; or

(ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

My love of these two sections is going to make my next statement sound particularly strange: Kanapathy v in de Braekt (No. 4) is a terrible decision.

The story goes a bit like this.  Mr Kanapathy was a security officer working for G4S — yes, that G4S — at the Central Law Courts in Perth.  One day, Ms in de Braekt — a lawyer — came into the building and avoided being searched by Mr Kanapathy.  When Mr Kanapathy insisted, it seems that she got upset and defensive, and hurled some colourful language at Mr Kanapathy.

Here’s Mr Kanapathy’s account:

She insisted on talking to the Operation Manager. And again I told her either you comply with the searches or you can leave the building.
Then she took a personal attack on me asking me “are you from Singapore you don’t belong here you don’t know anything why don’t you go back to Singapore you idiot you prick”. I told her “to Mind her words and watch what you are saying you should behave like a Lawyer”. She again abuse me by saying who give the short prick like you idiot to be in charge”. “You got short man syndrome”. I again warn her to mind her words, she kept on going “you prick” “you prick” “you idiot” And eventually she went to be searched. Officer Kalyani and myself asked her to open her bag she refuse and said “you can go thru you prick you idiot and carried on”. After we search her bag we allowed her into the building, she kept on abusing me by calling me a prick repeatedly while she walked away.

When the case went to the Australian Human Rights Commission, Ms in de Braekt claimed that at no time did she see or communicate with Mr Kanapathy on the day reported and denied his claims against her.

Ms in de Braekt is certainly no saint.  In April 2013, she was struck off the Roll of Legal Practitioners for:

(a) knowingly (or alternatively, recklessly) misleading the Magistrates Court on 4 June 2009 and 6 July 2009 as to whether she had received a colour copy of a digiboard from the police (Incident A);

(b) being persistently discourteous and offensive to Deputy Chief Magistrate Woods during a hearing in the Magistrates Court on 4 June 2009 (Incident B);

(c) sending discourteous and offensive emails to Detective Constable Andrew Broadley between 16 June 2009 and 29 June 2009 (Incident C);

(d) sending a discourteous, offensive and threatening email to Detective Inspector Paul La Spina on 30 June 2009 (Incident D); and

(e) behaving in a discourteous and abusive manner to Mr Rajandran Kanapathy, a security supervisor at the Central Law Courts, in the course of carrying out her legal practice, on 16 January 2009 (Incident E).

The threat mentioned in Incident D is interesting: ‘I look forward to cross-examining you sometime in the future, in a trial.’

So none of what I’m about to argue is to suggest in any way that I think Ms in de Braekt is a nice person.

Mr Kanapathy told the Circuit Court that the abuse by Ms in de Braekt was:

  1. very very hurtful”;
  2. discriminatory;
  3. disrespectful, especially as it was delivered with a raised voice; and
  4. racial, as it referred to Mr Kanapathy’s national origin, being from Singapore, which he is (but he did not know how Ms in de Braekt knew that);

He further claimed that he:

was so upset by Ms in de Braekt’s abuse, both at the time and subsequently, that he saw his general practitioner, and was referred to a psychologist and clinical psychologist;

subsequently made 15 to 18 visits to the psychologist and clinical psychologist for counselling purposes, but he ceased to see them as he could not afford to do so as he had become unemployed in January 2012 when he left G4S;

still sees his general practitioner in relation to the effects of the abuse, and is medicated with anti-depressant medication, which he continues to take because of the effects of the abuse;

goes back” to the abuse in his mind, and still thinks about it.

This all creates a bit of a puzzle.  In the decision, Lucev J discusses the insult:

It is not sufficient that Mr Kanapathy feel hurt or humiliated by the abuse. The abuse must be reasonably likely to offend, insult, humiliate or intimidate. Does calling someone a “prick”, both simply and descriptively (that is, “Singaporean prick” and “short prick”) mean that those words are reasonably likely to offend, insult, humiliate or intimidate? Self-evidently, the answer would appear to be “yes”. The self-evident view is supported by a consideration of the colloquial and slang meanings of “prick”, which include meanings from:

standard dictionaries such as:
A stupid, contemptible, or annoying person (esp. a man or boy) also used as a general term of abuse.

colloquial … an unpleasant or despicable person.

and from a more edgy modern online dictionary [Lucev J used Urban Dictionary], the following:
derogatory term used to sum up the existence of a worthless arsehole a total arsehole, jerk, or jackoff (or jagoff) someone who is completely worthless complete arsehole an ungrateful piece of shit of a person.

It is evident both from the meaning of the word, and the manner and context of its use by Ms in de Braekt to Mr Kanapathy, that viewed objectively, it was reasonably likely to, and did, offend, insult and humiliate Mr Kanapathy. [References omitted]

But this is where I think there’s a problem.  The Racial Discrimination Act says that it’s not enough that the act offends, insults, and humiliates; it has to be ‘because of the race, colour or national or ethnic origin of the other person’.

Lucev J discusses this briefly:

In relation to whether the act was done because of Mr Kanapathy’s national origin, it suffices to observe that Ms in de Braekt referred to the fact that Mr Kanapathy was from Singapore, told him to go back to “your country”, that is Singapore, and told him that “we don’t need people like you here”, the “people like you” obviously being a reference to, in context, his being from Singapore. Similarly, the reference to Mr Kanapathy as a “Singaporean prick” makes it clear that the abuse was based upon Mr Kanapathy’s national origin. The ongoing use of the word “prick” after it having been used in conjunction with the fact that Mr Kanapathy was from Singapore, and Ms in de Braekt calling him a “Singaporean prick” means that the other uses of “prick” in such close proximity in time can also arguably be seen to be reference back to, at least in part, Mr Kanapathy’s national origin. In any event the express use of, and reference to, his Singaporean origins is sufficient to find that the abuse was as a consequence of Mr Kanapathy’s national origin.

This seems like a weird understanding.  The only part of the insult which seems to be relevant is the part where Ms in de Braekt said that Mr Kanapathy should ‘go back’ to Singapore.  The ‘prick’ part doesn’t seem to be racially motivated and yet this was the part of the Ms in de Braekt’s statement that Lucev J deemed to offend, insult, and humiliate Mr Kanapathy.

In other words, there seems to be an unusual understanding of how the Racial Discrimination Act is to be applied here.  Imagine a person is in a heated exchange in the street and is dishing out a torrent of abuse, reducing their interlocutor to tears.  Just as they’re walking away, they happen to correctly reference that the person is from Tajikistan.  Does this mean that the entire torrent of abuse up to that point is considered to be a racially motivated attack?  Intuitively, we do not think so.  It seems like there is a set of events (terrible, awful events which are inexcusable) which culminates in a particular event that was a racially discriminatory act.

When we apply this to Ms in de Braekt, there were a few acts — the total of which contributed to her being struck off the Roll — and one of those acts was a racially discriminatory slur.  This reading would then change how the judgement would flow.  Mr Kanapathy claims that he’s still humiliated and upset about being called a prick and that he — for some reason — needed a substantial amount of therapy to get over being called a prick.  But the racially discriminatory act was not being called a prick but, instead, was being told that he should go back to Singapore.  I doubt that Mr Kanapathy would be awarded $10,500 for that.

This is the puzzle for the Racial Discrimination Act.  If it’s used in these sorts of cases, it starts to look like it’s an unreasonable legal remedy for people with thin skin.  It’s clear that the Act needs defending against critics who appear pathologically incapable of reading s18D, but now it seems like the Act needs defending against people who lack the coping mechanisms to deal with ordinary terrible behaviour.

None of this is supposed to justify the terrible behaviour.  Kanapathy did not deserve any abuse — racially motivated or otherwise.  But Lucev J’s decision to extrapolate the meaning of ‘prick’ such that it was a racially discriminatory slur every time it was uttered by Ms in de Braekt seems like an unusual way to interpret behaviour through the lens of the Racial Discrimination Act.

3 responses to “I might slip down to the bottom of the sea… What if Kanapathy was a prick? #auslaw #racism #auspol”

  1. This has numerous factual errors in. Ms in de braekt commenced an application in the federal circuit court of australia on 19 october 2015 to set sdide this decision & she is represented by mr anthony elliott barrister of equus chambers.

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