John Howard slams critics of 18C (thus shutting down free speech?). Front page, today's The Australian

There’s plenty of bigotry about and a lot of it flows from the pages of the News Corp media, especially The Australian, says political editor Dr Martin Hirst.

Why does The Australian want the right to be bigoted?

I'VE BEEN wanting to catch up with The Australian’s recent and ongoing campaigning about freedom of speech, press freedom and the imposition of censorship on the Murdoch press by the politically-correct brigade who viciously use the Human Rights Act against well-meaning cartoonists like Bill Leak and forthright, honest, hardworking columnists like … well pick a name.

All the Murdoch free-thinkers feel put upon by the elites and leftists who, they ridiculously claim, occupy all the positions of power in Australia’s institutions and seek to oppress anyone who dares to disagree or object to the green-left agenda to turn Australia into a place where there’s no fun, no dissent and no such thing as the Institute of Public Affairs.

Can you imagine how frightening it would be if Gerard Henderson was forced to shut up and was not allowed to expose the ABC-endorsed leftist plot to make us all into LGBTI-loving, believers in climate science who join unions to defend our living conditions and who want to stop Gina Reinhart from reclaiming her rightful place as the world’s richest woman.

Can you imagine how horrible our lives would be if libertarian freeloading hypocrites like Senator James Patterson were prevented from making stupid statements about selling iconic artworks in the paper and warming his bony punkass arse on the lush red leather Senate benches.

It’s just too awful to contemplate.

Thank God that The Australian is there to prevent all this mayhem and to warn us of the danger that the frothing-at-the-mouth Socialist Bill Shorten represents to all that we (should) hold sacred.

At the heart of the current "free speech" campaign by the Murdoch press is an all-out assault on Section 18C of the Human Rights Act. It seems that The Australian is concentrating a cartload of editorial resources on this campaign to uphold the bigot’s right to freedom of expression. I for one didn’t even know it was under threat. There’s plenty of bigotry about and a lot of it flows from the pages of the News Corp media.

Why does the Murdoch press hate Section 18C so much?

The case against this piece of legislation, as presented in the News Corp papers, can best be summarised as follows.

It should be OK to insult and offend people on the basis of their racial background or their ethnicity.

In a nutshell, that’s it. I can’t see any more justification than that.

Why do so many Liberal backbenchers, One Nation Senators and The Australian newspaper want this law to be changed?

Why do they argue that it should be OK to offend or insult someone based on racial or ethnic grounds, if it’s not OK to humiliate or intimidate? I can’t see there’s that much difference, but News Corp columnists like Grace Collier have been arguing that no one has a right not to be offended. Why not? What’s so great and freethinkerish about going about offending people because of the colour of their skin, their ethnic background or racial profile?

Why would any decent human being want to do that?

What great issues in Australian political, cultural and social life are not able to be talked about because of the limitations of Section 18C?

If you read all the pages and pages of argument and editorialising in the Australian (which is exactly what I’ve been doing for the past few weeks), no great answer jumps out.

According to the conga line of so-called "experts" paraded daily by The Australian, difficult conversations are not going to be had. Aboriginal commentator Warren Mundine told The Oz that debate on Indigenous issues would be "stifled", but the issues central to Bill Leak’s ”Indigenous dads” cartoon have been discussed openly both before and since.

It did not need Leak’s insulting cartoon to start a discussion about youth delinquency.

How has debate about domestic violence in Indigenous communities been shut down by academics or anyone who condemned Leak’s cartoon as racist?

It is simply not true to say it has been but to continue this lie suits the purpose of The Australian — to give voice to offensive and racist opinion.

And, when they can’t get an Indigenous person to fully sign up to their "free speech" campaign, they use misleading headlines to imply a greater level of support for Leak than their carefully chosen subject is willing to give.

The case of Stan Grant in The Australian this week is a good example.

The frontpage teaser carries the headline ‘Grant defends Leak’, but the lead tells a different story:

'Stan Grant has refused to condemn Bill Leak for a controversial cartoon calling it a “complex” statement on indigenous parenting.'

Grant’s comments were not a ringing endorsement of Leak, saying:

'I didn’t think it was a particularly great cartoon, I think there are better ways of doing it, but if these things create a debate, it’s important we bring our voices to it and speak about this in an open and respectful way.'

Hhhmm ... "refused to condemn" is a long way from "defends".

The full story is on page 4 and it is lifted from an interview Grant did with the ABC’s Wendy Harmer, so you can bet that the quotes are selective and only the "best" bits have been used. Grant did not actually defend Leak or the cartoon, but never mind, his comments are just fodder for the rusted-on supporters of the rights of the bigot.

No real justification is put forward to support the argument that debate is "stifled", except for the unproven assertion that Section 18C is somehow a great big obstacle to freedom of speech, freedom of expression and freedom of the press.

This is frequently asserted by The Australian’s columnists and editorial writers, but it is not demonstrated.

What is Section 18C all about?

Section 18C of the Racial Discrimination Act currently makes it unlawful to insult or offend, but it goes further than this by also adding that it is an offence to humiliate or intimidate on the grounds of racial or ethnic characteristics. Isn’t that just the "fair go" principle in operation?

RACIAL DISCRIMINATION ACT 1975 SECT 18C

Offensive behaviour because of race, colour or national or ethnic origin

(1) 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.

This section of the legislation, first enacted in 1975, makes it an offence to publicly offend, insult, humiliate or intimidate a person or group based on 'race, colour or national or ethnic origin' of the person or persons in the group.

A lawyer friend once gave me some very good advice: when your adversary is jumping up and down claiming that a particular section of an Act or Statute is causing them grief, you should always look at the clauses immediately above and below it.

This is particularly important in relation to Section 18C, given just how loudly and frequently The Australian claims that freedom of speech is being stifled by this piece of legislation.

Let’s start with Section 18A and 18B, which immediately precede 18C.

Section 18A is important, particularly in relation to the Bill Leak case because of the legal issue of vicarious liability, which means Bill’s employer could be liable too.

RACIAL DISCRIMINATION ACT 1975 SECT 18A

Vicarious liability

(1) Subject to subsection (2), if:

(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

(b) the act would be unlawful under this Part if it were done by that person;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

Section 18B makes it clear that the racial or ethnic element of the act is to be considered, whether or not it is the ‘dominant or substantial reason’ for the action. In other words, for the purpose of Section 18, the inclusion of racial or ethnic elements in the act/action is enough to make the person liable to action under the Act.

RACIAL DISCRIMINATION ACT 1975 SECT 18B

Acts done for 2 or more reasons

Where:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done for that reason.

This is important in the Leak case and in the Queensland University of Technology case because, whatever other reasons might be advanced, an ethnic or racial characteristic was one of them.

The concentration on clause 18C also ignores the protections offered by section 18D which immediately follows it.

RACIAL DISCRIMINATION ACT 1975 SECT 18D

Exemptions

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

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.

We’ll come to defences in a moment, but first the final section here is 18E, which for some vague reasoning only known to the drafting lawyers, is a repetition of section 18A:

RACIAL DISCRIMINATION ACT 1975 SECT 18D

Vicarious liability

(1) Subject to subsection (2), if:

(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

(b) the act would be unlawful under this Part if it were done by that person;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

Vicarious liability in the Bill Leak case

I’ve been puzzling on the reasons why News Corps’ lawyers are all over this case like an expensive case of shingles. Now perhaps it’s a little clearer — but first, one more digression into the Austlii vaults.

ACTS INTERPRETATION ACT 1901 SECT 2C

References to persons

 (1) In any Act, expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual.

Is that little lightbulb beginning to glow inside your head now?

As a body corporate, The Australian and its publisher, News Corp Australia, may well have some vicarious liability in the Leak case because he is technically an employee (no matter what his financial arrangement with Rupert) and there is no evidence that Boris, or anyone else, has tried to rein him in or dissuade him from drawing and submitting his cartoons for publication.

In fact, the evidence is strong the other way. Bill Leak is drawing these cartoons with the express support of, active encouragement of, and perhaps even under the instruction of his editor.

So, you can see why reading the whole section is important from a legal point of view, but the defences – seldom mentioned in the op-ed columns of The Australian – are just as important.

Where is The Australian going next?

It would seem to me, and perhaps also to The Australian’s lawyers that Bill Leak may have a legitimate and sound defence under section 18D. We have to be fair and honest about this, no matter how offended we might be by his cartooning and his cartoonish behaviour.

A couple of weekends ago, Hedley Thomas claimed an 'EXCLUSIVE' on page one of the Weekend Australian: 'HRC accused of bias in 18C cartoon complaint'.

The accusation was contained in a letter written by News Corps’ lawyers accusing the Human Rights Commission of ‘outright bias’ and warning of ‘legal action’ to prevent the HRC from ‘investigating a drawing’.

It really was more of an 'EXCUSIVE' because I’m certain that Thomas had been given the lawyers’ letters by his editor, rather than gathering them through his own devices. Large slabs of the excusive were excerpts from the letter. Nice one Hedders.

I’ve got a pile of this stuff on my desk as I write this: news items, editorials and op-ed pieces gathered just over the past three weeks. It’s too much to document and catalogue, but it is all of a similar bent. One piece was penned by Canadian conservative self-promoter, Trump supporter and Murdoch favourite, Mark Steyn.

According to this bombast, the problem is that Australia is no longer a free country in which Leak’s ‘opponents’ are ‘attempting to close down the debate’. But, as I’ve pointed out, this has not actually happened. Therefore, the Leak case has to be turned into something it is not — THE WAR ON FREE SPEECH, as the headline to the Steyn piece published in The Oz on 19 October screams.

Steyn tries to have his cake and eat it too, by attempting to argue that it’s not about the content of the Leak cartoon – the obvious racial stereotyping of Aboriginal men as drunks, layabouts and dissociated fathers – but rather: 

'It’s a debate about whether we’re free to debate.'

Actually, no Mark, you’re free to be a racist and to make offensive comments based on racial and ethnic stereotyping; you’re free to be insulting, offensive, humiliating and insulting. But, speech has consequences and speech leads to action.

Indigenous dads: a response to Bill Leak (SBS: The Feed)

One consequence is legal action under Section 18C. I have expressed my views on this legislation in my exchanges with the young badger about the consequences of free speech, I won’t repeat them here.

What I will say is this: racist speech leads to hate crime. This is an undeniable link and a case before the Victorian courts this week proves as much.

A man with links to several violent right-wing groups affiliated with the so-called patriot movement has been charged with violent terrorist-like offences, including threats and plans to kill anti-racist activists.

Philip Galea is a good example of why Section 18C is still a good idea — he has extended his right to speak like a bigot into plans to commit murder:

A Victorian anti-Islam extremist conducted surveillance of “leftwing” premises where he planned to launch deadly bombing attacks, police allege.

“Loss of life to persons possessing leftwing ideologies was the focus of the attack,” [police] said of 31-year-old Phillip Michael Galea.

Galea is also accused of trying to recruit others to help carry out his plans.

He is charged with two terrorism-related offences over his alleged activities between September 2015 and early August this year.

It’s not a big step from defending Leak’s serial and extremely racist cartoons to defending the right of Philip Galea to put his words into action. But the News Corp’s Herald Sun chose to focus on Galea’s mental health, not his links to white supremacist terrorism.

Let’s also not forget murdered Brisbane bus driver, Manmeet Alisher. He was doused with petrol and set alight by a man with alleged mental health issues. This was a racially-motivated attack; there can be no doubt about that in anyone’s mind that Manmeet’s violent murder was a hate crime.

Hate crimes are inspired by the words of bigots.

Words have consequences, so why does The Australian want to extend the rights of bigots to use harmful words amounting to hate speech; and why does the paper campaign for this right day after day?

I can only conclude that Boris and the paper’s senior writers are happy to see a rise in racially-motivated violence and to promote the views of bigots because they don’t like multicultural Australia as it is.

Perhaps it’s worse than that. Perhaps it is about the bogey of so-called political correctness, a term that only the conservatives use to smear their political opponents.

The Australian, along with other sections of the Murdoch press, is happy to generate a culture of fear and division because the alternative is a population united to throw the bigots in the bin.

That includes, Bill Leak, Mark Steyn and all the other free speech fundamentalists who don’t stand up for everyone’s speech, only their own.

Read more by Dr Martin Hirst on his blog Ethical Martini and follow him on Twitter @ethicalmartini.

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