In an opinion piece Free-speech fundamentalists break free of good conscience in the SMH Mark Kenny quoted Senator David Leyonhjelm thus:
- “If you want to take offence, that’s your choice. You have the choice of choosing another feeling. Offence is always taken, not given. So if you don’t want to be offended, you, it’s up to you; don’t be offended.”
Apparently this opinion was expressed on the ABC Insiders program, and was fully supported by One Nation’s Malcolm Roberts. Kenny says:
- David Leyonhjelm is a boorish, supercilious know-all with the empathy of a besser block. And that new Hansonite conspiracy theorist from Queensland? He’s an absurdist fringe-dweller and fellow hate-speech apologist. It’s a case of wacky and wackier.
Neither of these self-promoting misanthropes would have the first idea about entrenched discrimination. Yet both are experts.
Kenny goes on:
- 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.
In their peerless assessment of the lived experience of all minorities, they have decreed that the fault of hate-speech does not lie with the utterer of a given slur or insult, no matter how cruel, baseless, or humiliating. Rather, the “offence” lies with the recipient – the subject who simply “decides” to be affronted.
In response Leyonhjelm has launched a discrimination complaint with the Human Rights Commission over the article specifically nominating the phrase “angry white male”.
Kristopher Wilson chews through the legal implications in what impresses me as a neutral fashion.
There is nothing to prevent a majority white person from claiming discrimination, he says. He rates Leyonhjelm’s chance of success as low, but thinks it is one to watch as to how the Commission responds. They can dismiss the case, or if discrimination is found the outcome would be a conciliation session between Leyonhjelm and Kenny. That would be fun!
Leyonhjelm, if he’s still unhappy, could go to the Federal Court.
To my simple mind, it’s a stunt. Leyonhjelm says offence has nothing to do with the perpetrator, but is something he chooses for himself. Kenny would therefore seem to be clear of any charge of having acted unlawfully, since Leyonhjelm says it is not possible for anyone else to offend him.
Also if Kenny actually holds the opinion he expressed, and has seen to have stated it reasnonably, then he is protected by 18D.
Leyonhjelm said he believed Kenny’s article was unlawful under section 18C and the complaint would “highlight that what he is entitled to say shouldn’t be unlawful”. From The Guardian:
- Leyonhjelm said he believed Kenny’s article was unlawful under section 18C and the complaint would “highlight that what he is entitled to say shouldn’t be unlawful”.
“If I’m going to succeed in having it repealed, I need to change minds. If I’m going to change minds I have to show absurdity of the law.”
I think the real problem is that Kenny is right, Leyonhjelm is blind to the possibility of entrenched discrimination, and the notion that the government should attempt to do anything about it.
Andrew Heywood in Political Ideologies, 2nd ed says the foundational values of liberalism in the 19th century rested in part upon a focus on the individual rather than the group, on individual rights and liberties, of reward for merit and a minimum of interference from government. He says that when the massive expansion in individual wealth brought also the spread of slums, poverty, ignorance and disease, some began to realise that the state should intervene. Yet JS Mill still worried about the provision of state education thinking it would lead to uniformity. That was a couple of decades before compulsory primary schooling was introduced in England.
Later, we are told, ‘social liberalism’ saw that the welfare state in fact expanded individual opportunities and enhanced individual rights. Citizens acquired a range of welfare and social rights such as the right to work, the right to education and the right to decent housing.
Perhaps Leyonhjelm wants to peel all that away, taking us back 150 years. At the very least Bernadi and company should articulate their values and their vision fully rather than simply blathering about free speech.
Chris Graham at New Matilda explains why Leyonhjelm will lose, why the current debate around 18c is a ridiculous furphy, and why free speech has never really been under threat. Graham says that, for the record, his considered opinion is that Leyonhjelm is a ridiculously stupid white man.
He also takes Malcolm Roberts to task for claiming that 18c was introduced by “Julia Gillard to nobble Andrew Bolt”. In fact 18C pre-dated Gillard’s entry to parliament by three years, and was introduced before Bolt became a columnist for the Herald Sun.
Another case of interest is that of Cindy Prior, a former employee of the Queensland University of Technology’s Indigenous office, who has launched an action against five students and three staff members under 18C seeking costs totalling nearly $250,000.
This one seems different, because real recompense is being sort for alleged harm.
The story, in brief, according to the link, is that Ms Prior refused access to students to computers in the Oodgeroo Unit at the university’s Brisbane campus in May 2013 because the students were not Indigenous. They went and vented on Facebook, not at her, it seems, rather at the situation, using the kind of language you would expect.
A QUT lecturer Ms Prior spoke to is accused of:
- saying the situation seemed ‘a bit silly’ and questioned whether asking students if they were Indigenous was a breach of the university’s policy.
- After reading the comments, Ms Prior allegedly went home feeling sick and stressed with fears for her safety, the Daily Mail reported.
Court papers reveal she felt ‘offence, embarrassment, humiliation and psychiatric injury’.
When the QUT equity director reviewed the Facebook comments:
- she allegedly told Ms Prior it was just ‘students being nasty’.
“With the small amount of contact I’ve had with the students, it is clear that these students aren’t racist.
“There is no white supremacy group at QUT. Check out what racial vilification is before you jump in.
“They’re not going to come into your office with a baseball bat,”
- later claimed she felt unsafe leaving her home due to fears of being verbally abused and was unable to return to work in a role requiring face-to-face contact with white people.
My feeling was that everyone could have acted differently with profit, but centrally the equity director should have called in all parties and conciliated in the first instance. To me QUT was and remains the resonsible party.
The first series of quotes above are allegedly from Federal Court documents.
Subsequently it has been revealed that Ms Prior initially lodged the complaint with the Human Righs Commission, who tried to resolve the matter through conciliation with QUT.
- But the students were not notified of the complaint until just days before a final conference in August 2015, despite the matter being with the AHRC for more than a year.
It seems the students were not notified until conciliation with QUT failed, and they were called to a conference in August 2015.
Now two of the students have launched a complaint of their own, claiming the Australian Human Rights Commission discriminated against them because they were white heterosexual males.
- They claim the AHRC breached their human rights by failing to notify them of the complaint against them for more than a year.
The two are demanding an apology from the AHRC, compensation for legal costs understood to already be in the hundreds of thousands of dollars and that the commission change the way it deals with complaints.
In the complaint documents their lawyer, Tony Morris QC, claims the two were “at all times treated by the AHRC with absolute, unequivocal and flagrant indifference, disregard, contumacy, hauteur, disdain, vilipendency and insouciance”.
Free speech warriors are quoting the case as another reason why 18C should be changed or repealed, assuming that Ms Prior’s action will be successful, seeing that as inappropriate, and suggesting that students should not be dragged through the courts for being silly and juvenile.
I have some sympathy for the last part. To me QUT has failed them also.
It seems possible to me that a court may find, in these circumstances, that the average Aboriginal person would not be personnally seriously offended. Averages, however, by definition represent the middle ground, leaving the possibility of unrecognised harm. That is why I think the law in 18C should explicicity concern itself with actual harm caused.
Grattan sees the Liberal Party ‘internals’ as having a bad attack of stomach acid:
- Rarely do we see such an extensive and formalised revolt in a party on a policy issue.
See also: Racial discrimination and liberal values
Update: David Leyonhjelm’s complaint has been upheld by the Human Rights Commission. Mark Kenny will now be called upon to conciliate.
Update 2: David Leyonhjelm explains why he complained.
He sounds as though the HRC has yet to rule on his complaint.