No athletic program, no discipline, no book… Why @DavidLeyonhjelm must lose his s 18C case #auspol

David Leyonhjelm is a terrible human.  He has argued in favour of charging asylum seekers $50,000 for permanent residency (and then not providing them with welfare or support services).  He claimed that the Sydney siege wouldn’t have occurred if more citizens carried guns.  He has argued that Indigenous people are told ‘fairy tales’ in order to make them feel special, such as ‘Indigenous people are the First Australians’.

So we shouldn’t be surprised that Leyonhjelm is also claiming that he has been the victim of racial discrimination.

His argument is a dopey one.  In an – admittedly pedestrian and insipid – opinion piece for the Sydney Morning Herald, Mark Kenny (political correspondent for Fairfax) referred to Leyonhjelm and another senator as having ‘angry-white-male certitude’:

‘You see, this gormless duo has declared, with all their angry-white-male certitude, that a verbal abuser cannot cause offence or humiliation. It is all in the mind of the recipient.’ [Source]

That’s the line that’s in issue.  It is Leyonhjelm’s contention that s 18C of the Racial Discrimination Act is so terrible that it would allow him to bring a case against Kenny for this race-based slur.  Leyonhjelm isn’t trying to silence Kenny; he is trying to bring s 18C into disrepute.

I’ve argued almost endlessly that s 18C is not well understood.  It is frequently misrepresented in the Press, and even academic commentators get tied up in weird pseudo-polsci slogans instead of engaging with the provision.  Cards on table, I don’t think s 18C goes far enough, and I’ve also argued that it should be extended to cover other attributes beyond race – particularly religion.

But let’s start with the stupidest comment made in the whole of today.  ‘Satirist’ Charlie Pickering wrote:

Of course, Pickering means s 18D, the exemptions to the application of s 18C.  These exemptions protect several types of statement that are done ‘reasonably and in good faith’, including ‘fair comment on any event or matter of public interest if the comment is an expression of genuine belief held by the person making the comment.’  This was the major battleground in Eatock v Bolt with the Federal Court finding that Bolt did not make his comments reasonably and in good faith.

But s 18D does not help us here.  Yes, it would mean that Kenny and Fairfax would not be found to have breached the Racial Discrimination Act.  Yes, it would mean that Leyonhjelm would not win his case.  But if we get to the s 18D stage of the analysis, Leyonhjelm has won his non-legal argument: that s 18C is ridiculously broad and needs to be narrowed or abolished.  It is important for the ongoing reputation of s 18C that Leyonhjelm’s argument fails at the threshold.

There are good reasons why his argument should fail.  The first is a matter of basic construction.  Here’s the key operating paragraph of s 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.

So what is ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’?  In Eatock v Bolt, it was decided that the ‘assessment is to be made by reference to an ordinary and reasonable member of the group of people concerned and the values and circumstances of those people’.  It is not – as many media blowhards have pronounced – merely a matter of hurt feelings.  Kenny’s comment about ‘angry-white-male certitude’ is not offensive to the ordinary and reasonable member of the group of people concerned.  It should fail the s 18C test on this ground alone.

Further, it is not obvious that the act was done because of his race, colour, or national, or ethnic origin.  Again in Eatock v Bolt, a ‘causal nexus is required to be demonstrated between the act reasonably likely to offend and the racial or other characteristics or attributes of the persons reasonably likely to have been offended.’  Let us imagine that some ordinary and reasonable white person was capable of being offended by ‘angry-white-male certitude’, it is not clear that this limb has been satisfied.  What message about white people is alleged to be conveyed by the comment?  That all white people are angry?  That all white people have angry-white-male certitude?  The author himself is white, so this interpretation makes no sense.

For the sake of completeness, we should turn to the purpose of the Racial Discrimination Act.  In Eatock v Bolt, the purpose was made clear:

[I]n seeking to promote tolerance and protect against intolerance in a multicultural society, the Racial Discrimination Act must be taken to include in its objectives tolerance for and acceptance of racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so. People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance.

Leyonhjelm’s complaint fits neither the literal meaning of the section, nor does it fit the purpose of the Act as a whole.  The Racial Discrimination Act is designed to ensure that people, regardless of the colour of their skin or their ethnic heritage, are able to maximise their participation in our society without fear of being silenced by unreasonable and malicious attacks designed to offend, humiliate, and insult them.

Understanding this is key to understanding why the broader complaints about s 18C are wrongheaded, and why most ‘defences’ of the Racial Discrimination Act are unhelpful.  Twitter crank ‘Snarky Platypus’ contributed the following:

The usual objection to s 18C is that it stifles free expression.  A person should have the right to be a bigot was the slogan, but it might more charitably be expressed as: ‘There’s a difference between having a terrible opinion and being mocked for it, and having a terrible opinion and being sued for it.’  By removing s 18C, it is claimed, everybody will be on equal footing with regard to their terrible opinions.  If a person makes an anti-Semitic remark, they will be socially shamed and pilloried.  If a person makes a remark about Muslims, the same.  If a person criticises white culture – as Snarky Platypus suggests – ibidem.

But this framework is wrong.  The reason that we have s 18C is that not everybody is on equal footing when it comes to shaming others for their bad opinions.  As a conservative, straight, white male, I can humiliate, offend, and insult people in ways that they cannot do to me.  I can make them feel so unwelcome in society that they would need to muster superhuman endurance and resilience in order to exercise basic rights such as ‘Express an opinion in public’, ‘Stir up a controversy’, or even ‘Stand for parliament’.  The Racial Discrimination Act levels the playing field.  If I want to marginalise a group of people, I better be prepared to defend myself in court.

Too many (left liberal) progressives try to do battle within the framework created by opponents of s 18C, but to engage with them here is an immediate loss.  The worst of these has been the Racial Discrimination Commissioner himself who, frankly, is an embarrassment.  Writing in 2014, he thought the issues that he should deal with as a priority were whether the RDA really does allow people to be prosecuted or convicted (it doesn’t, but who cares?), and whether it infringes free speech (it does, but his waffleplex of an answer suggested that the exemption in s 18D was a law protecting free speech, rather than a carve out from a limitation on free speech).  Soutphommasane has never had the intellectual ability to challenge the rhetorical or ideological foundations of the attacks on s 18C because, at heart, he agrees with them.  He is a dyed-in-the-wool weenie liberal.

The core problem with the debate is that nobody is really defending the thesis on its own terms.  Nobody is willing to go in to bat for s 18C on the basis that s 18C is excellent (which it is).  Instead, they defend s 18C by proxy.  To change s 18C would be a win for the bigots, they say, and that would ‘send the wrong message’.  It is important that we do not let Them win, regardless of how trivial the victory.

And the opponents of s 18C are winning the debate.  The more they can keep it as a lightning rod for anxieties of white working class Australia about multiculturalism, national security, and job security, the more the Liberal Party can fracture the traditional ALP vote.

We need to cauterise the wound, extend s 18C to other categories, and push the cranks into obscurity.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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