18C: still no answer…writes Tony Burke

March 3, 2017 by Tony Burke
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Parents started to keep their children inside the house, and would personally escort them to school. Adults would avoid leaving the home alone unless they absolutely had to. A woman who used to ride to her evening classes stopped going altogether, because she couldn’t face the insults hurled at her as she cycled.

Tony Burke

These are some of the findings of the National Inquiry into Racist Violence in Australia – one of a series of inquiries and reports that lead to Section 18C of the Racial Discrimination Act being established 25 years ago.

The hard right of Malcolm Turnbull’s party demanded that this law be weakened. He promptly threw this particularly hot potato to a parliamentary inquiry for them to deal with. After months of debate and community submissions, the committee recommended no changes to our racial hate speech laws.

Malcolm Turnbull has been left holding the potato.

We didn’t need to have another inquiry to figure out that 18C is a necessary law. That fact was established 25 years ago. The overwhelming finding of that National Inquiry into Racist Violence was this: many victims considered the sub-physical forms of racial violence – the insults, intimidation, harassment and aggression – had a more severe impact than actual cases of physical assault. The violence of words could be as debilitating as physical violence.

The psychological effect of continual exposure to abusive and insulting language cannot be overlooked. Racial hate speech can result in insecurity and depression, preventing people from participating fully in society.

A major hurdle for this early inquiry into racist violence was that people who had experienced it were too afraid to come out and talk about it. Some said they feared retribution. Others said that nothing could be done to make the racial violence – the abuse, insults, and harassment – stop, so they’d rather not draw any attention to themselves. The inquiry had to create an outreach program to assure them they would be safe to talk.

Through this early inquiry they also found that verbal violence often precedes physical violence. So section 18C was born. It functioned well for 25 years before being attacked by the Abbott and Turnbull Governments.

In those 25 years, only 1.8% of racial vilification complaints have ended up in court. Most are withdrawn, rejected or, most often, conciliated by the Australian Human Rights Commission. The Andrew Bolt, Bill Leak, and QUT cases may have dominated the news cycle in recent years, but the latter two cases were withdrawn and dismissed respectively. We’ll get to Bolt.

Opponents of 18C like to stylise themselves as champions of ‘free speech’, and will point to the Bill Leak case to declare that 18C is broken. But the Bill Leak case proves the exact opposite. That case was withdrawn, but even if the case had progressed to court, it would have failed because section 18C does not function alone. There is section 18D, which defends statements that are in the public interest, in creative works, in debate or if they are genuinely held belief. Even though Bill Leak’s cartoon was tasteless, and offensive to many, 18D covers artistic purpose.

What’s not covered by 18D? Let’s take the famous Andrew Bolt case. Bolt lost the case for two of his articles. In one of the articles, titled ‘It’s so hip to be black’, he individually names several fair-skinned Aboriginal people conveyed imputations they only claimed their Aboriginal heritage for personal benefit.

He did not lose this 18C case because he questioned issues of Aboriginal identity, as he claims. That conversation might have been found to be of genuine public interest, and covered by 18D. The court ruled his articles unlawful because they contained “erroneous facts, distortions of the truth and inflammatory and provocative language.”

Twenty per cent of Australians say they have been subject to verbal racial abuse. That figure soars to 90 per cent for Aboriginal Australians. This law provides assurance to Australians of all backgrounds that, in the eyes of the law, they are not fair game. It says that public acts of racism are not tolerated. But this inquiry has sent the message that, under a Liberal government, the right to racial hate speech must be protected.

There’s a sentiment that running through this debate that says racial hate speech is “just words”.

Tell that to the woman who comes home in tears because she was abused on a train. Tell that to the child who is trembling because they’ve just watched their parents be harassed at the shops.

Since when did the person spouting racist hate speech become the victim?

Tony Burke is the Federal Labor member for Watson



5 Responses to “18C: still no answer…writes Tony Burke”
  1. Ron Burdo says:

    If you want kill racism, kill it by education, not by banning legitimate criticism about cultures, religions or other social grouping.

    Say no to shutting mouths.
    Say no to childish self-victimisation of minorities. Yes, including Jews.
    Say no to the current 18C.
    Say yes to free speech.

  2. dr john nemesh says:

    Tony Burke is a leading light of pro Palestinian advocay in a way that is decidedly anti Israel in nature.
    The 18c-d issue in my mind cannot be disassociated with his other anti Israel and in my eyes, ant Jewish community activities.

  3. Andrew Bolt says:

    Tony Burke makes a false claim against me to justify limiting free debate on racial issues. He says: “In one of the articles, titled ‘It’s so hip to be black’, he individually names several fair-skinned Aboriginal people saying they only claimed their Aboriginal heritage for personal benefit.” I said no such thing. In fact, I wrote in that article that I was NOT doing that. It was the judge who said that “reading between the lines” that I was.

    If my articles were not now banned by law – can you believe that? – I would quote from them to show that Burke is also wrong to claim I did not discuss issues of racial identity in them. In fct, that was the whole point and subject matter.

    Does he seriously think those articles should have been banned?

    I note that Burke lightly skips over the trauma of three Queensland University students who were falsely accused of racism under the law and sued for $250,000 for pointing out that having Aboriginal-only computers at their university was racial segregation.

    Burke claims they won, so what? But they lost – lost nights of sleep, lost reputation and in one cast lost more than $40,000 of legal bills. Their lawyers, working pro-bono, lost countless hours of their time.

    And note: the lawyers working for the complainant thought this case was a strong one under this law. The Human Rights Commission thought it worth proceeding with under this law. And the staffer who sued the innocent students thought the law would enable her to get $250,000 from them.

    Burke also overlooks three other students who were sued by the staffer under this same law, and – terrified – paid $5000 to the staffer to go away.

    Tony, is there really nothing here you think needs changing?

  4. Bruce Scott says:

    I find Burke to always be a bog standard disingenuous leftist ideologue, who can never be trusted with the National Security of this Nation. 25 years ago, was a different world, which has no bearing on today. 18c as it is must go, or our individual freedom and democracy will faint away far too quickly.

  5. Leon Poddebsky says:

    Leading members of his party constantly abuse, insult, lie, incite against the Jewish nation-state and its people.
    Most Australians recognise hollow hypocritical grandstanding.

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