Dreyfus on Section 18C

March 17, 2014 by J-Wire Staff
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Shadow Attorney-General Mark Dreyfus has been interviewed on Sky News on his views on the Abbott Government’s proposed to repeal Section 18C of the Racial Discrimination Act. Read the transcript.

Mark Dreyfus   Photo: Henry Benjamin

Mark Dreyfus Photo: Henry Benjamin

CHRIS MERRITT: On legal matters, the Attorney-General Senator Brandis is under attack really, from the left and the right because of his promise to change Section 18C of the Racial Discrimination Act. Do you think that’s fair, given the fact that he’s not really clearly argued that he will repeal the entire provision?

DREYFUS: I think actually that the Liberals have been all over the place. Senator Brandis, from opposition, said he was going to repeal Section 18C. Tony Abbott, from opposition, said he was going to repeal Section 18C.

Since they’ve got to government, six months on, all over the place, not clear on what’s going to happen. And division within the Liberal Party on it, we’ve got Craig Laundy last week, the new Member for Reid, Ken Wyatt, the Member for Hasluck, at the weekend, saying leave this provision exactly where it is. It’s a provision which has served Australia very well over nearly 20 years.

And of course, at the other end, as you’ve just pointed out, the Institute of Public Affairs, a right wing think tank, calling for repeal. George Christensen, another member of the Federal Liberal Party calling for complete repeal.

I think time’s up and the Government actually should say what it’s going to do.

MERRITT: Well, let’s see what Labor would do. Are you happy with a provision like this that doesn’t take account of community standards? In the Bolt case, the judge in that decision explicitly rejected the argument that what you can say on the issue of race should be determined by community standards. Are you happy with that?

DREYFUS: I don’t think that’s a correct reading of the judgement at all and I think all of your viewers should go and read the multiple judgements of the Federal Court, including the Federal Court judgement in the Bolt case.

What that makes clear, and what all of the decisions over the last 20 odd years have made clear, is that this provision is for serious cases of racial vilification. It’s not there for mere slights, it’s there for serious cases and it also makes clear that it’s not judged on a subjective standard. It’s not judged simply because the complainant is feeling vilified by the racial abuse. It’s judged by an objective standard from the point of view of the reasonable member of the community.

MERRITT: I disagree with you there. I think in paragraph 243 of the judgement, Justice Bromberg actually rejects explicitly community standards and makes it very clear that the test for liability will be from the perspective of those complaining.

DREYFUS: I’m referring to all of the judgements, Chris, that have been given by Federal Court judges over the years. Bear in mind Andrew Bolt, full of bluster after the decision, which of course he failed because he failed to make out the free speech defence. He said he was going to appeal. He didn’t appeal.

And when we are considering this kind of legislative provision we have to read all of the judgements of the Federal Court judges who have looked at this. And also bear in mind that it’s only the serious cases which end up in court, the vast majority of complaints under this provision are conciliated by the Human Rights Commission.

It’s a provision which has served Australia very well, and that’s what I’m hearing from community groups from around Australia. That’s what’s reflected in Craig Laundy, a member of the Federal Liberal Party, or Ken Wyatt, saying leave this provision alone and don’t approach it from some empty ideological position, but look at how it’s worked, how it’s served Australians very well since it was introduced in 1995.

MERRITT: Given that the heads of liability in 18C include provisions that attract liability for speech on race that offends and insults and given that the Commonwealth of Australia has a Constitution that refers to a race power, doesn’t that mean that political discussion about matters in the Constitution is now limited?

DREYFUS: Of course, it’s a restriction on kinds of speech and it’s a restriction just like we see in lots of other areas of the law. Recently Tim Soutphommasane, the Race Discrimination Commissioner, gave a speech in which he pointed out that it’s a criminal offence to use offensive language in public in all States and Territories.

You could point to defamation law, which is a restriction on speech. You could point to misleading conduct laws in trade practices, which are restrictions on speech.

What we need to look at is why we’ve got those restrictions and as it happens in this Racial Discrimination Act provision, we’ve got some of the clearest protections of free speech actually set out in the legislation. Not like in defamation law, you’ve got to go to judgements of the High Court to find what protection there is for discussion of political matters.

In the Racial Discrimination Act we’ve got explicitly set out a protection of free speech, a protection of political speech, a protection of artistic endeavours, and that’s of course where Andrew Bolt failed. He failed to rely on the free speech protections in the Act, because he couldn’t prove that he’d acted reasonably. The judge found that he had knowingly used material that he knew to be false, and no one should be treated as having behaved reasonably in those circumstances.

VAN ONSELEN: Mark Dreyfus, can I get your reaction to what some of the advocates for repeal of 18C put forward as, from what I can gather from interviews I’ve done, and reading their arguments, one of the key things they talk about is that there are other protections that exist for people who feel vilified, including through defamation laws and the like.

What’s your reaction to that claim, that those other protections exist even if you repeal 18C?

DREYFUS: I think we should look to the lived experience of this legislation since it was brought in by the Keating Government and came into effect in 1995. And that is that the overwhelming majority of complaints under Section 18C have been brought to a conciliation process in the Human Rights Commission. The overwhelming majority have been satisfactorily resolved with an apology, or with some kind of correction, or the parties agreeing that the matter’s at an end. And it’s only in a very, very small number of cases that it’s ended up in the Federal Court.

That’s what should guide us in determining whether of not this is a provision that needs to be repealed. I say that because it’s served Australia well, we should leave it exactly in the form that it presently is.

The fact that you could say ‘they could sue for defamation’, I don’t think is much of an answer. I think all of you there as journalists would know that defamation proceedings are very expensive, take a very long time to resolve, don’t include the compulsory conciliation process that the Racial Discrimination Act has.

This is a provision which is building community harmony. This is a provision which is building an elimination of racial vilification in our community and it should have no place in our community. It works very well with the campaigns like the ‘Racism – It Stops With Me’ campaign that the Human Rights Commission has been working on now for some years.

And I think that’s the context we have to look at this in, not whether or not there might be some part of the law, that in addition could be used.

PAUL KELLY: I find your comments extraordinary, that it’s building community harmony. I would have thought it’s doing the opposite. I would have thought this particular provision, if it stays in the law is going to trigger community disharmony.

So could I ask you, given the test is offending and insulting, do you think there’s any downside at all, do you think there’s any negative in that at all?

DREYFUS: That’s not the test, Paul. There are four words used – it’s offend, insult, humiliate or intimidate, on racial grounds. And each of those terms, the courts have said this repeatedly, each of those terms informs the other. It’s not just a matter of, one of the judges has actually said this, it’s not a matter of mere slight, and it’s certainly not a matter of mere slight existing in some kind of vacuum.

This is racial vilification that we’re talking about. It’s served Australia well and what I hear from you Paul is a pretty extreme ideological position. Plucking this Section and indeed a couple of words out of the Section, from the real world contact that they have been applied in.

KELLY: No, I’m not trying to be ideological. I’m looking, I think, at the real world experience. It seems to me that the real world experience, in terms of this provision over the course of the last couple of years has been quite divisive.

DREYFUS: On one case, which people have repeatedly misquoted. People have repeatedly ignored what happened in this case, which is that a tabloid columnist deliberately used false information to vilify the complainants in the case. He had been told by them that what he had written on an earlier occasion was false and he deliberately repeated it.

Now that’s a very extreme case and the Bolt case wasn’t really fought on racial vilification matters. It was actually fought on whether or not he was entitled to the protection of the free speech defence that’s in the legislation and the court found that he wasn’t.

Now the idea that one case should dictate the course of Australian law or dictate the course of racial vilification protections in the country, I take real exception to. I want to look at the whole body of the law. I want to look at all of the cases which have been complained about.

And I’d invite you Paul, and anyone else that’s interested in this subject to talk to people who have brought complaints to the Human Rights Commission. I have, and in almost all cases they’ve been satisfied with the outcomes and I include in the people who have been respondents to complaints, who have ended up saying this was a good process, this has brought me face to face in the same room with someone I did humiliate, someone that I did racially vilify and I’ve learned something from this process.

Now I’m interested in laws that work in that way. I’m not interested in laws that are complex. I’m not interested in laws that involve people in lengthy, very expensive, court proceedings, which is what defamation would invariably bring you to.

VAN ONSELEN: Mark Dreyfus, I just want to ask you about this idea that this change looks to be predicated on one case, the now infamous Bolt case. Because, is your view that there’s a pandering to Andrew Bolt that has gone on by George Brandis and perhaps Prime Minister Tony Abbott in the way that they reacted to this case after it happened?

Yet now there’s perhaps some back-pedalling as they get a little bit more detail behind what it means to adjust the provision off the back of one case, that ultimately wasn’t even appealed?

DREYFUS: It’s hard to read it in any other way. Tony Abbott and George Brandis were full of outrage on behalf of Andrew Bolt when he was found to have contravened this Section, back at the end of 2011. He said he was going to appeal. He didn’t.

And yet Tony Abbott and George Brandis have persisted with their threat to repeal this Section. You’re right, Peter, to say that it appears that there’s some back-pedalling going on and I can say what the reason for that is.

It’s because hundreds of community groups across Australia have complained to Tony Abbott, have complained to George Brandis, and have complained to their local members.

What you see in those Liberal members Ken Wyatt and Craig Laundy, is reflecting the views of their communities. They both represent, in particular Craig Laundy represents, a very multicultural electorate. Ken Wyatt there is reflecting the views, I think not just of his multicultural electorate, but also particularly the views of the Indigenous community.

Very many of the complaints under Section 18C have concerned disgraceful, unpleasant, racial vilification of Indigenous people which should have no part of 21st Century Australia.

That’s what this provision’s about, it’s about what kind of society we want to be and the idea that just because one right wing commentator should have been found to have contravened the provision, that we should chuck out something that has served Australia very well over 20 years. I find, actually, offensive. And I’m very pleased that there’s some back-pedalling on the part of George Brandis and Tony Abbott. So there should be.



9 Responses to “Dreyfus on Section 18C”
  1. Joel Hartman says:

    Onya ottoz, top stuff champ. But I find YOUR reference name for indigenous Australians extremely disgusting AND totally disrespectful.
    Maybe it’s time to clean YOUR own back yard up!

    • Otto Waldmann says:

      Joel, thanks for your concern re my backyard.
      The name I made up is made up of the reality that a great majority of indigenous Australians DO have names which are not of their own tradition. Often, if the churches which “looked after them” would have been German Protestant for instance, would give them German names. The great majority of “carers” being of English origin would end up with “Dobson”, “Parker” etc.The genuine Aboriginal name I added was only to emphasize the actual Aboriginal identity serving my argument.

    • Ian Kendall says:

      Personally aware of many instances of Indigenous children recorded surnames being based on the name of the cattle station they were born on (eg: Inverway) or just on plain whim (eg: Mota) – first names were often the same (eg: a child born on the day a horse called “skeeter” won a race gets that name). To associate non-indigenous sounding names with anything but marriage (in most cases) or casual racism (see above) is dodgy.

  2. Jack Morris says:

    Mark Dreyfus, for the public record, please respond to Andrew Bolt’s refutations of what he adamantly claims are your misrepresentations of him. I quote from http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/is_mark_dreyfus_a_liar_or_just_a_fool/

    Fact: I fought and still fight any suggestion that I was racially vilifying anyone. Fact: I did not deliberately write anything false, and was certainly never told beforehand what I wrote was false. Indeed, I disputed some of what were said to be “errors”. Dreyfus is simply spreading an untruth to discredit me and thus deny the Racial Discrimination Act needs reform.

    Andrew Bolt, staunch ally of the Jewish community, has been given short shrift by our community leaders who cling rigidly to their politically correct agendas.

    • Otto Waldmann says:


      Yours is kind of Easter Show Trojan horse of a farcical argument.
      The ,true, fact that Andrew Bolt has been known to be a supporter of the Jewish community and Israel has nothing t do with his “celebrated” court case on matters NOW seemingly related to some unrelated freedom of speech impediments rendered by the 18C.
      As the Courts decision has not been challenged in….Court, the excessive flogging of the dead ( again) horse of an injured journalistic ego and the extension of the same toward radical legal changes may not be used as rational arguments.
      The way Bolt keeps being associated with the legal argument is akin to a revenge of the most absurd proportions. A MINUSCULE, legally invisible sh..t fight which had practically NO punitive results against the “loser” is now used as cause cellebre intended to alter an important ethical element of our social edifice.
      All you guys who use Bolt as an argument have left at the door any semblance of decent proportions in a logical construct.
      NOTHING HAPPENED TO BOLT and nothing needs to be changed in the Racial Vilification 18c provisions. You act as if Bolt is languishing in some dark cave chained by the limbs barely surviving on some putrid barley and infested water relying on your freedom fighters to render him justice.
      Surely you must have better things to do: in Brazil samba dancers are not allowed to perform in brothels before 12 noon ! Did you know that !?? Now, here’s a case worth your passion !!! Surely it beats Bolt’s inconsolable sufferings. Go for IT !!!!


  3. Dreyfus tries to fortify his argument by mentioning that ‘community groups’ have called for the retention of Section 18C. Well who are these groups? Community spokespersons, often self-appointed, are invariably more extreme and über-sensitive than the Average Joes they purport to represent. Taking the Jews for example, history has never seen them being of one voice on anything, so it’s hard to believe they are dutifully lining up behind Dreyfus and Peter Wertheim on this issue. Look at postings by Jews on Bolt’s website.
    Lavarch back in 1995 said the intent of Section 18C was only for ‘egregious’ racism. If you think Bolt’s article was egregious, well I suggest you get out more – a sentiment shared amongst others by many Aborigines.

    • Otto Waldmann says:

      Yes, S. Douglas I reckon you got something there. It never occured to me, but I could be wrong, that people such a Mr./Mrs. Weinstein formerly of Budapest or Lodz, born pre WWII or a certain Nguyen Trong or Tony Wilson-Booganboola, coory from up Northen Qld. should all understand the distinction between ‘egregious’ racism and YOUR pedestrian, acceptable, harmless SO CALLED vilifications which trigger in all of the above TOTALLY UNNECESSARY unpleasant feelings.
      Yeah, get on with it, oversensitive, humourless, intollerant non-egregious quip party poopers.
      Onya Sholto and where can I contact you personally to greet you with some of me own guaranteed non-egregious kinda stuff of what I really think ovya!?

      Jews, abos and the whole assortment of refos of latter day and earlier ones thrive on non-vilifying racist comments. Let’s all celebrate the true blue Aussie way of life and turn our nation into an open air, open minded back-of Bourke piss joint where everybody is an equally “loved” c….t.
      Hey Sholto, mate, aint yourse blokes missin’ ya asyou are neglecting your happy hour by wastin’ your time on bloody Heebs’ websites instead of havin’ a good burp and piss at your water-hole !!!

  4. Otto Waldmann says:

    It may look like most of ( if not all ) Dreyfuss’ arguments are a pedestrian regurgitation of objections to the Government’s attempt at a certain , 18c, provision of a particular Act, one dealing with racial attitudes in OUR society.
    Yet, Dreyfuss managed to some extent to extend the argument into some areas of greater (and necessary ) relevance.
    In the main the approach by Dreyfuss would be one of cautious engagement in fields which are traditionally approached very carefully by politicians as not to infuse some kind of “elitist”posturing. Almost all our politicians MUST have been drilled by some expert courses in public address. One of the 1st principle would be NOT to use language and/or areas of “concern” ouside the “average” comprehention AND time lapse of attention by YOUR average bloke or sheila, for that matter. People, is said, turn away if you carry on about “philosophical stuff” if you use words they don’t use themselves ( I suppose in pubs, bingo clubs, shopping malls, backyard BBQs etc ).
    In this multi-interview one of the journos, Kelly, even states that he is “not trying to be ideological” and compares it unfavourably being “ideological” with “the real world”, as if our “real world” must not contain, G-d forbid, that destructive, antisocial, terrible notion of “ideology”. Drefuss himself is not far from it , in appearance, when he styates that ” I am not interested in laws that are complex”.
    So, while all must be kept at arm’s length as not to estrange social determinant “Joe Blow”, Dreyfuss manages to introduce toward the end that compulsory refference to matters ethical, the necessity to address what defines civilised society.
    The main thust of Dreyfuss’ implied argument is that this Government ( for which I personally DID vote ) is engaged in a demolition deraby of concepts, indeed ideologies, which are designed to foster a BETTER adjusted accommodationof what we may call idiosyncratic group behaviour, better known as multiculturalism of the finest order.
    Whether simply populist or deeply committed to an IDEOLOGY of exclusion and dominance, our liberal “thinkers” and doers seem seriously determined to exclude the shackles of COMPLEX expectation/demands brought forward by groups whch, in their vision, do NOT define THE Australian ethos we should all aspire to.
    The now accepted indulgencies of multi cultural/behavioural tolerance has had its run ( they’d say ). It had ben introduced by some misguided idealists who were, unintentionally one would suppose, out to change the way Australia has been functioning since the first non-white, non- Anglo bloke was put down for “good reasons”. The temporal acceptance of a number of cultural eventualities, predicated on a need for economical rapid progress, has had its day. Aitalians, Greeks and some other groups were invited and given a chance to continue their traditions over here. The more recent inlfux of much more such groups, now even African and some Asian stuff the ordinary bloke never knew existed ( and still doesn’t know ) have been infiltrated the dominant culture to the extent of demanding equal rights and even more !!!
    This MUST stop if REAL Australia is to survive and see the century out as the country which accepted others, but did NOT accept OTHER Australia to emerge as THE dominant, definitory character.
    The free speech Tim Wilson and his upper mates is about is the speech whcih is meant to restore an order which right now is broken or about to be broken.
    This salvage emergency job, one best described as a secret caballa of the White Australia relicks, is what the whole 18c story is all about.
    Go out there and promote this concept and the numbers are well in favour of the Tim Wilsons simply because numerically they DO prevail. Hence the arrogant smirk on Tim’s white Anglo face, best picked for the job in all respects.
    Dreyfuss may contain intellectually all the right arguments, but all the right arguments are not what would necessarily prevail, unless gutsy, yes, Aussie style, pleas are put forward containing those dreaded ideologies and words warded off pubs and bingo clubs. Repeated firmly they will deliver the message and place in the propper league of worthless obstructer of progress and fairness all the Tim Wilsons and their ideological masters.

    • linda miller says:

      So much quibbling going on here because the RDAct is poorly drafted and needs refinement. Brandis is correct when he points out that the word “vilification” doesn’t appear there. But it clearly should, and in the equivalent state law it usually appears in the very title of acts. And in order to provide clarity and give effect to the intention of the Act, it should be defined within the Act much as it is in the Oxford Dictionary. Sholto Douglas, “egregious”, as there defined (prominent, projecting, remarkable, gross, flagrant), it unquestionably and readily applies to the poisonous Bolt article. It may be arguable that Bolt’s article is not extreme or exceptional, but it is at least run of the mill racially offensive and grievous. That is enough to bring it within the ambit of Lavachian egregiousness.

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