Australia/Israel & Jewish Affairs Council

Media Microscope: All at Sea over 18C

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Allon Lee


At the start of March, the report of the Federal Parliamentary Inquiry into Freedom of Speech - recommending changes to the process for handling 18C cases but offering no consensus on the changing the wording of 18C and 18D - seemed to mark the end of the campaign to gut Australia's race hatred laws in the name of free speech.

The abrupt death of cartoonist Bill Leak - who was recently the subject of an unsuccessful 18C complaint - apparently resurrected the campaign and convinced the Turnbull Government to announce plans to remove the words "offend", "insult" and "humiliate" from 18C and replace them with the word "harass".

The release of the Inquiry report saw AIJAC's Colin Rubenstein welcome its findings and remind people of the flaws in the reasoning of 18C critics.

"Arguments by critics that the wording of 18C - and specifically the inclusion of the words ‘offend' and ‘insult' - creates a subjective ‘hurt feelings' test are simply wrong as a matter of law. For the fewer than 5 per cent of cases that actually make it to court, the courts have always read these words together with ‘humiliate or intimidate' as one test implying ‘profound and serious effects, not ... mere slights'... Mere feelings of offence or insult has never been sufficient to lead to a finding that the section has been breached," he wrote.

Moreover, "with the one exception of the 2011 case Eatock v Bolt, which saw prominent columnist Andrew Bolt ordered to withdraw two columns, no other finding under 18C has proven at all controversial," Sydney Morning Herald (Mar. 6).

Although writer David Marr said he wanted "‘offend' and ‘insult'" taken out of section 18C, he doubted "that this country would be a better, freer place if ‘humiliate' and ‘intimidate' went too."

Marr was confident that most of 18C's high profile critics don't "really want Australians to go about humiliating and intimidating Aboriginal people, Chinese and Jews", suggesting their campaign is "just another battle in the tedious ‘culture wars' against the left," Guardian Australia (Mar. 15).

Tony Walker called for a tougher test arguing that "it makes little sense to persist with wording of a statute that divides rather than unites. What is required is a consensus view in which both sides of the argument feel they can live with the result," Age/Sydney Morning Herald (Mar. 19).

Following the Government announcement, the News Ltd papers came down strongly in favour of the proposed changes. The Australian (Mar. 22) argued that the changes do not "give a green light to racism" but prevent the law being used "as a weapon" to unfairly target companies and individuals.

Fairfax papers were more divided. The Australian Financial Review (Mar. 22) welcomed the announcement but the Age was vehemently opposed (Mar. 23). Earlier, after the Parliamentary Inquiry report was released, the SMH (Mar. 3) had welcomed the process recommendations while calling for changing 18C's wording to "degrade, intimidate or incite hatred or contempt".

Colin Rubenstein told ABC Radio "PM" (Mar. 21), regarding the government's proposal, that ethnic communities would work together to convince the Senate to oppose the changes because "it cuts to the heart of the continuing viability of Australian multiculturalism... we've had the reality and still do of racism in Australia... even though by any standard we're probably the most tolerant society on the face of the earth... we all feel as though we should do better to counter serious vilification of fellow Australians". He said discussion of 18C's "very positive accomplishments" was missing from the debate.

The Australian Financial Review's Fleur Anderson pondered (Mar. 23) the consequences in ethnically diverse electorates of a successful change to 18C's wording, recalling how "in the 2007 election, John Howard... los[t] his own seat, as well as government. Chinese and Korean voters turned against Howard and towards the Mandarin-speaking Kevin Rudd."

Fairfax's Michael Gordon (Mar. 22) said that if the Parliamentary report's recommendations on process were implemented then "the two examples of abuse of the section would have been speedily thrown out." He also questioned the introduction of a higher "reasonable person" threshold test because "how can a middle-class white person possibly know how an Aborigine feels when he or she is abused on a bus on a regular basis?"

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