New attack on 18C – what do anti-18C campaigners really want to say?

Louise Clegg, barrister and lecturer in constitutional law has written a piece which was printed in the AFR as Inevitable demise of 18C can’t come soon enough, and online as Why are politicians defending 18c when the High Court won’t?

She regards 18C as self-evidently unconstitutional, and cites a speech by retiring Chief Justice Robert French as indicating that the High Court would find it so.

She calls the QUT case “monstrous”, says the poor students have had their lives changed forever, and “these boys could be anybody’s sons.”

She reckons the HRC are in the vanguard of ‘identity politics’, self-evidently bad, and accuses Race Discrimination Commissioner Tim Soutphommasane of touting for business.

Today there is a letter from said Tim Soutphommasane, pointing out that it’s part of his job description to promote public acceptance and understanding of the Racial Discrimination Act, he doesn’t actually do the cases himself, and it is wrong to say, as Clegg does, that the Act protects “mere hurt feelings”. 18C only extends to “profound and serious effects”, which are “not likened to mere slights”.

Clegg, he says:

    dismisses section 18D of the act, which protects any fair comment or reporting on a matter of public interest, and any sentiment expressed “in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose”. Given this wide protection of free speech, we must ask what it is that anti-18C campaigners want to say that they can’t already under section 18C?

I have said before that I don’t believe the QUT students should be in the frame. I believe the complainant, Cindy Prior, a former employee of the Queensland University of Technology’s Indigenous Office, was badly let down by QUT as an institution.

I would also point out that while the students “could be anybody’s sons” Ms Prior could not be anyone’s daughter. She is a member of a small racial minority that has been subject to significant racial discrimination. Remember Ms Prior:

    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.

Clegg may be right that the High Court would find “offend” and “insult” unconstitutional, as she suggests, but I’m not sure Robert French’s speech can be adduced as evidence.

French’s speech was the Birkenhead Lecture, given at Gray’s Inn, London, in November 2015 under the title of The Fine Art of Giving and Taking Offence. It is learned, entertaining and stimulating, but he specifically says it is not a legal review of the topic. It is not primarily addressed to 18C, which gets a brief mention at the end, or indeed to racial discrimination. There is far more in it about being historically rude to royalty, politicians and the legal profession. He goes into religious discrimination in some detail, but racial discrimination not at all apart from the reference to 18C.

The targets French talks about are the strong, not the weak, it’s more about individuals tilting at authority. He talks about that ‘judicial helper’, the average reasonable person, who in French’s examples seems always robust.

French, who retires at the end of this year, also gave a speech in August at the Samuel Griffith Society’s annual conference in Adelaide, the conference Tony Abbott opened with a regret that he didn’t knock out “offend” and “insult”. I can’t get a link, but if you Google Robert French speech Samuel Griffith society you should get it. There’s also an article in the Oz, Google Michael Pelly Robert French speech indicates he’s lukewarm on 18C.

I haven’t read the Adelaide speech, but it seems a cut down version of the London speech, with an introductory section linking it to Sir Samuel Griffith.

In Adelaide as well as in London French highlights the importance of context and reminds us that “the application of those tests to laws affecting offensive speech and expressive conduct necessarily requires evaluative judgments”. The law will not ultimately protect everyone, he says, and judges should “proceed with caution before making a finding that a legal prohibition on offensive behaviour had been breached.”

Pelly says 18C has never been tested in the High Court. The most recent outing on free speech in the Court was the Lindt Cafe killer Man Haron Monis, where court split 3-3 on whether Monis’s awful letters to the families of Australian soldiers was protected as political free speech. French was one of three finding for Monis, and has the reputation of being a free speech enthusiast.

French’s bottom line is unhelpful, indeed I think a bit inane. Pelly:

    The Chief Justice told the Samuels the law is a very unsatisfactory remedy for such disputes and that we’d all be better off with a little more courtesy and manners.

    Too true, but it ignores the reality of our brutal political culture and the social media age.

Courtesy and manners. He gave the same advice in London. But this from him is a perceptive statement, albeit he says it’s anodyne and blindingly obvious:

    “The debate about section 18C illustrates the way in which prohibitions on offensive speech and expressive conduct can sometimes lie at the interface of hotly contested and differing views about the proper limits of legislative intervention. Those differences tend to be rooted in different views about the kinds of harm seen as flowing from particular kinds of offensive speech.”

French also thinks politicians should be very clear when they intervene with legislation, which he has argued, I think, is virtually impossible.

“Kinds of harm”.

It seems to me that anti-18C campaigners are oblivious to the harm that can be caused by speech to those already fragile.

See also:


Update:

It is important, I think, to appreciate two points about how the HRC proceeds with complaints.

First, on receiving a complaint the HRC may seek further information and contact the repondent, seek their comment and any further information. At this point the HRC may decide not to proceed further, and will tell the complainant why.

Second, all they can do from that point is conciliate and seek resolution. Importantly, the Commission does not have the power to decide if unlawful discrimination has happened.

89 thoughts on “New attack on 18C – what do anti-18C campaigners really want to say?”

  1. Why limit this law ?
    Nasty haters continue to offend, insult, humiliate or intimidate nice delicate human beings ( not forgetting our animal and plant families ) on many, many, many other grounds other than race, colour or national or ethnic origin.

    I say extend it to every instance!!!!
    In fact, I, as a sentient entity on this Planet am offend, insult, humiliate or intimidate by this very issue being discussed in public !!!!!!

    How dare you !!!!!!!!!!!!!

  2. Jumpy, it’s bad enough that we eat plants and animals. I once had an application for a job from someone who would only eat things that fell off a plant. last I heard she wasn’t doing so well.

    But that doesn’t mean we can harm other people just because we want to sound off. We’ve finally gotten it more or less right where you can’t walk up to someone anymore and smack them in the chops, except that Paul Gallen did it not so long ago in a State of Origin match. Now if you lay a finger on anyone else’s head you get punished.

    In a civilised world we might start to treat verbal harm seriously. Clegg worries about those poor boys having their lives altered, but it is of no account if Ms Prior’s is altered for the rest of her life.

    Fair shake of the sauce bottle!

  3. Brian: I am willing to accept that the current reality of 18C is that trivial attacks are not being supported by the courts.
    However, my real problem with our judicial system is that it is so expensive that well heeled legal bullies can get their way by simply threatening to take you to court.
    So, how much does it cost to part of an 18C case either as victim or accused?

  4. John

    I think there’s supposed to be a conciliation stage before any complaint reaches a court. For instance, QUT might have done better in bringing the four persons together??

  5. Let’s face it, QUT allowed a racist policy and Prior is inventing ” offence ” that no ” reasonable person ” would.
    Answer ? Everyone can use the room and Prior get back to doing your job or resign. The victims are the boys, so compensate, and the HRC are incompetent activists with no desire for equality, sack them and argue for a Bill of Rights.
    Done.

  6. Ok, little help please ?
    As far as I know I have ancestors from England, Scotland, Ireland and Germany. I don’t know anything beyond 3 generations back.
    What race am I ?

  7. Jumpy in canine terms, I’d say you were a mongrel, like many of us. But you aren’t a discriminated against racial minority.

    I’ll get back to this a bit later on tonight, but I’ll give priority to the issues raised by John.

  8. Sir Jumpy: The English aristocracy including those with titles like Sir were often bastards and mongrels in both the technical and behavioral sense as well as being noticeable racists when they came to live in colonies like Australia. Perhaps this explains some tendencies we have noticed since you joined this blog.
    Fortunately the English aristocracy are not included in the list of approved repressed minorities so you cant use 18C to object to the above. (In the unlikely event that you do not see the above as a tick of approval.)

  9. John, re your comment, the courts don’t get involved unless the complainant is dissatisfied with the conciliation process undertaken by the Human Rights Commission. So it is possible for the well-heeled to say “stuff you, sue me if you like” and walk away. However, I don’t think there is any evidence of this happening in relation to 18C.

    The HRC has an Information for people making complaints and a more detailed page. basically you fill out a form and can get help to do that if you so wish. They say you don’t need a lawyer, but can have one if you wish, but will have to pay for same yourself.

    The conciliator doesn’t make judgements as to who is right or wrong, but facilitates the process.

    As to “trivial” some of the complaints are fairly trivial, but in many cases someone loses a job or feels they have to resign or get out. The offending body typically pays some compensation (smallish, I think), but is required to provide a ‘statement of service’ and undergo training on anti-discrimination and workplace bullying, and the like.

    It’s meant to change behaviour and change attitudes, I think, rather than punish or pay full recompense.

  10. Ambigulous, I was very much of the opinion, like you that:

    QUT might have done better in bringing the four persons together??

    I think that’s what the equity director should have done when approached by Ms Prior, instead of trivialising her complaint.

    It’s now complicated and escalated in a way that is of real concern, but the circumstances are so unique that I’m not sure what we will be able to draw from the case.

    I found two articles by Hedley Thomas, who is a Brisbane-based investigative journalist writing for the OZ. I’ve had some problems with some of his stuff in the past, but these two seem to be largely informative. Google

    Hedley Thomas Cindy Prior: Doctor casts doubts on QUT employee’s 18C racism claim

    Hedley Thomas Human Rights Commission broke rules over race complaint

    I’m not sure the HRC did break the rules in not notifying the students. They were dealing with QUT and it may have been QUT’s responsibility to notify the students, who weren’t notified until it was clear that Prior wouldn’t deal with the university.

    It seems Prior was insisting that the students be suspended, and did not feel safe with them on the loose. And she came with a legal team, not sure who’s paying, if anyone.

    Ms Prior was an administration officer hired by the university, and it seems their main aim was to get her back to work by providing assurances of safety.

    Thomas reports four psych reports, no less. Make of them what you will, but there is a history coming into this event which to me, in hindsight, makes it look like an accident going to happen.

    However, we can’t rewrite history and just say that Ms Prior was perhaps not robust enough to be put in that situation. Nor is it profitable to argue that the facility was not necessary. That’s all history and we go from here.

    Is it reasonable for a court to make a judgement of Ms Prior against an imaginary ‘reasonable person’? How much is her earlier experience, rather than most recent incident, a contributing factor?

    I would suggest that the university put her in the position and owes her a duty of care. However, they also owe the students a duty of care.

    The students at least are getting pro bono legal assistance. People may remember the flamboyant Tony Morris QC, who had to be taken off the Dr Death inquiry after the supreme court found “ostensible bias”.

  11. Jumpy, to offer you a bit of help, I believe the English are made up of eastern and western celts overlaying a pre-celtic population, with additions from the Angles, Saxons, Jutes, Vikings, Normans and no doubt more besides.

    The German bit depends on where they came from, but again there is likely to be a huge mix.

    And I don’t think it was only Picts in Scotland.

  12. Brian
    Thanks for your detailed info posted at 10.55 and 11.55. You have more stamina than I. (School holidays, grandsons staying with us,excuse excuse….)

    In England, use of DNA shows Viking roots up north, even some Spaniards on the northerly coasts from defeated Armada naughty sailors, etc. Very variable story. Some forebears never moved more than twenty miles from home village for centuries.
    My source is a British TV series aired here a while ago.
    Fascinating.

    BTW, in New Zealand’s Te Papa Museum, we learnt that DNA shows Maori ancestors came from several small valleys in Taiwan !!

    Sorry Thor Heyerdhal with your straw raft sailing from South America , “Kon Tiki”….. The Maori arrived from a completely different direction. The Polynesian navigation across the Pacific is another story of triumph.

  13. Ok, so is there any circumstance in which someone could breach the Racial Discrimination Act with me as the victim or is that impossible ?

  14. Jumpy, in one of the articles linked in the previous post, this one, the opinion was offered, as I summarised:

    There is nothing to prevent a majority white person from claiming discrimination, he says.

    But he rated Leyonhjelm’s chance of success as low.

    So technically you could be a victim. You would have to show, however, that it was serious, ie. not trivial, and that it occurred because of your race. I think that’s unlikely, and doubt you would ever have a case that the HRC would accept.

    At that point you could go to the courts, but I imagine they would be even lass likely to find in your favour, if the case was accepted at all.

    Quite a few commenters have said that Prior might have some difficulties succeeding in court. I think so too, especially against the students, one of whom took the ‘offending’ Facebook comment down as soon as he was made aware it was a problem, and said he meant no harm.

    If there is a case against the university I suspect there may be better avenues than the Racial Discrimination Act, but I’m not a lawyer.

    IMHO the Prior case, whatever the outcome, doesn’t show that that 18C is nonsense. But if she ends up getting damages in the order of $250,000 it would be a game changer, because 18C which only makes certain actions unlawful not illegal would have produced a punitive result.

  15. Jumpy, you can always get you racial heritage identified through a DNA test. which doesn’t cost an arm and a leg. But it would likely mean that you were just “Caucasian”, which may not qualify as a ‘race’. The same opinion I quoted above addresses this difficulty, and suggests it might pass muster, but I wouldn’t take it for grsnted.

  16. So effectively this law allows for vile racial hate speech toward you, me and millions of other Australians and we can not reply in kind.

    You’ll pardon me if I don’t see any equity or fairness promoted by it.

  17. So effectively this law allows for vile racial hate speech toward you, me and millions of other Australians and we can not reply in kind.

    I think that what I said was actually the reverse of that, Jumpy, but in most cases it will be hate speech by the strong directed at the weak.

    If Leyonhjelm is protected fom Mark Kenny, then the strong are being protected, though I wouldn’t call Kenny weak.

  18. Some forebears never moved more than twenty miles from home village for centuries.

    Ambigulous I don’t know much. I think I saw that series, but was mainly trying to remember the chapter of a book I read called Hidden Kingdoms by Norman Davies. I think the English Celts were called Britons. The Celts I believe were very tribal back then and didn’t mingle much beyond the tribe.

    I think the important thing was that new people could move in and settle in between existing populations without necessarily evicting them. At times.

    I recall reading that at the end of the 19th century there were Slavic populations in Brandenburg east of Berlin who had lived much the same way for over 1000 years. In other cases they were intermingled or evicted.

  19. Jumpy
    Many laws will never affect you at all. Many laws will not benefit you personally. Many others will never be used to punish you.

    Just keep avoiding being a murderer, burglar, drunk driver, tax avoider, shoplifter, assaulter, fraudster, ….. and you’ll see lots of miscreants treated harshly while you continue to enjoy life to the full.

    And while others of us in different circumstances receive various kinds of largesse, don’t worry, because your strong principles would not have allowed you to accept such, in any case.

    Life can be so complicated and varied, eh?

  20. Sir Jumpy: I would far prefer to have the life i have had than to have had a life that allowed me to need and use 18C.
    Count yourself lucky to have allegedly been a minor member of the English aristocracy instead of the class you whinge about getting privileges all the time..

  21. I think that what I said was actually the reverse of that, Jumpy, but in most cases it will be hate speech by the strong directed at the weak.

    That must be my problem, I don’t regard people of other races as weaker.

  22. Yes, Jumpy, not intrinsically weak, but as Shakira Hussein says:

    “mainstream” Australians always and forever set the terms and conditions under which people are tolerated within “our” society.

    Have a look at the actual record of complaints dealt with by the HRC.

  23. I’ve had just as bad on footy field and at school ( more wogs than skippys ) and working in places like Woorabinda.
    But apparently thats ok coz being white means I am strong enough to handle it, or some rubbish.

  24. Jumpy, sorry to hear. There’s a lot of bad stuff going on at present, and I supect it’s going to get worse given what’s happening in the world and in our fair country.

  25. Serious question for Jumpy – What “vile racial hate speech” directed at you has had, or could have, the power of the epithets n*gg*r or c**n?
    Try as I may I can’t think of one.

  26. Oh I recon you can if you try.
    But why would those words have any power over an Aboriginal ?
    Or Ape for that matter ?
    There is no historical link to Australian Aboriginals.
    My last apprentice used the collective ” darkies ” and he was PNG/TI.

  27. Oh I recon you can if you try.

    I’ll take that as an admission you’ve never been the target of “vile racial hate speech“, even from the wogs that outnumbered you at school and at Woorabinda.
    Funny thing is, when I was outnumbered by the wogs I worked with they all would have passed for “white”.

  28. I’ll take that as an admission you’ve never been the target of “vile racial hate speech“, even from the wogs that outnumbered you at school and at Woorabinda.

    LOL, of course you will. Why would truth make any difference.

  29. Jumpy, I think you need to get serious.

    This is from the HRC register of cases:

    The complainant’s son is Aboriginal and worked at the respondent small business as an apprentice. The complainant’s son claimed his boss said ‘just shoot’em, just shoot the f***ing c***s’ in relation to Aboriginal people. The complainant’s son left his apprenticeship before the complaint was lodged with the Commission.

    On being advised of the complaint the business agreed to participate in conciliation.

    The complaint was resolved with an agreement that the business would pay the complainant’s son $5,000 in compensation for hurt and distress, introduce an EEO/discrimination policy and undergo Aboriginal cultural awareness training.

    The Aboriginal kid was told that because of his race he had no right to exist and should summarily culled.

    So what do you think the kid should have done? Given you believe in everyone having guns, should he have threatened to shoot his boss if he spoke like that?

    Or should he have just buttoned his lip and carried on?

    Or what?

    Do you think bosses should be free to express themselves like that if the spirit moves them?

    Please note the power differentials in this case.

  30. The Aboriginal kid was told that because of his race he had no right to exist and should summarily culled.

    Your summery of the summery is absolutely wrong. That employer ” allegedly ” ( never proven and admission unknown ) comments about other ( alleged ) Aboriginals, without mentioning Aboriginals, over an incident we know nothing about.

    If the was talking about the boko haram scum in Nigeria that stole hundreds of girls into servitude, my apprentice would have agreed.

    If we’re not going to be honest then their will never be a solution.

  31. Jumpy, let’s not bring in red herrings about Boko Haram.

    Yes, it was a “claim” but apparently uncontested. You know as well as I do that it could have happened. Clearly it’s hate speech. People who want to get rid of 18C entirely would have to concede that a boss was free to say that.

    Do you agree?

    We all know he shouldn’t, but that is beside the point.

    I’ll ask again, what do anti-18C campaigners really want to say that they can’t already?

  32. I’ll ask again, what do anti-18C campaigners really want to say that they can’t already?

    That really is the central issue.

  33. Yes, it was a “claim” but apparently uncontested. You know as well as I do that it could have happened.

    Of corse it could have happened but it may not have and the employer decided that he was trapped either way so $5k was the least financially damaging compared to fighting it maybe.

    I’ll ask again, what do anti-18C campaigners really want to say that they can’t already?

    It’s not so much what I want to say but what I’m able to hear.

    Would you penalties for falsely claiming someone said something racist ?

  34. Would you penalties for falsely claiming someone said something racist ?

    Still waiting for an example of vile racist hate speech which would be actionable under 18C if directed at a pink person (face it Jumpy, neither of us is actually “white”).

  35. Jumpy, you keep inventing ways of avoiding the question.

    Of course people make false claims at times, and in general terms should be penalised if they do so. For example a male high school teacher can have his life wrecked if a teenage girl makes a false claim about him.

    The aim of the Racial Discrimination Act is not punishment, however, so I’m not sure what penalties there should be for false claims.

    But it’s another red herring.

    I’m asking you to consider a case where what I detailed happens. It’s here if you can’t remember.

    Should the boss person be free to make such statements?

    If he does what should the kid do?

    I’m still waiting for a reply.

  36. Should the boss person be free to make such statements?

    This?
    “”‘just shoot’em, just shoot the f***ing c***s’””
    Yes I do, people are allowed to discuss capital punishment. I’m not in favour of it and I don’t know what behaviour the ” c**s ” were involved in that motivated the comment.
    If there was a ” You should.. ” or ” I’m going to.. then that’s a different thing.

    If he does what should the kid do?

    Maybe disagree and talk about it.

    The ” power ” thing is irrelevant, we have unfair dismissal laws if the boss puts that one.
    ( BTW my apprentice was playing A Grade Rugby league when I signed him up. He had hight, reach, weight, age and fitness advantage over me in case you want to try ” physical intimidation ” )

    I think people outside the building game would be surprised at the volume of political and social discussion that happens there. Often very robust from all sides, but I’ve yet to see violence or sackings as a result.

  37. I’ve just done a long comment and lost it. Bugger! Here goes again.

    Jumpy, you are blaming the victim again in saying you “don’t know what behaviour … motivated the comment.” And you did it in a way that is actually offensive.

    The boss is perfecly free to express opinions down at the pub or elsewhere if he can get way with it, but telling an Aboriginal kid starting in a work situation that he is by virtue of his race worthless is straight out racial hate speech and capable of doing real damage.

    I’m glad that I live in a country where our democratically elected legislators have made such acts unlawful. That may not change opinions but the HRC process is the best way we’ve found so far to give real meaning to the legislation, and I’d expect that it will change behaviour.

    Jumpy, the relative power situation can’t be ignored. If you check out the HRC site you’ll find a whole string of cases where someone has lost a job through racial discrimination.

    I’m not surprised that exchanges on a building site can be robust, but people should be kind and friendly to new young people starting out.

    False claims do occur, but any complaint needs to be taken seriously. In state schools here we have mandatory reporting. That is, when a teacher has any evidence that something may be amiss it is reported to the police, who decide whether to investigate further.

    That doesn’t always lead to optimal outcomes, but I think it’s the way it has to be.

  38. Ok, by paragraph;

    -Sorry to hear.
    -no I didn’t, the apprentice wasn’t a victim in any way. No mention of him, race or colour.
    – No the boss didn’t.
    -No it’s making fake victimhood a weapon.
    -All I read quit, not sacked. I’m sure some were but racist employers go broke pretty fast.
    -we are.
    – if a real crime occurs, we do voluntarily.
    – we disagree.

  39. Jumpy:

    the apprentice wasn’t a victim in any way. No mention of him, race or colour.

    Citation required.
    (That means you really need to give us some evidence that your statement is true, not just pulled out of your underwear.)
    The original source says:

    The complainant’s son claimed his boss said ‘just shoot’em, just shoot the f***ing c***s’ in relation to Aboriginal people.

    and you keep ignoring the last five words of that statement. Apparently you have information unavailable to the HRC since you keep telling us that the employer wasn’t talking about Aboriginal people.
    Time to put up or shut up, your lordship.

  40. Take your time zoot, I’ll be away for the week. Look forward to any proof rather than just the original unsubstantiated claim that was taken as gospel truth everyone bar me.
    G’night.

  41. Jumpy, you continue to trivialise the case. I’ll just repeat the desription from the HRC Complaints Register:

    The complainant’s son is Aboriginal and worked at the respondent small business as an apprentice. The complainant’s son claimed his boss said ‘just shoot’em, just shoot the f***ing c***s’ in relation to Aboriginal people. The complainant’s son left his apprenticeship before the complaint was lodged with the Commission.

    On being advised of the complaint the business agreed to participate in conciliation.

    Of interest, two points about how the HRC proceeds.

    First, on receiving a complaint the HRC may seek further information and contact the repondent, seek their comment and any further information. At this point the HRC may decide not to proceed further, and will tell the complainant why.

    Second, all they can do from that point is conciliate and seek resolution. Importantly, the Commission does not have the power to decide if unlawful discrimination has happened.

    If a change to the legislation hits the Senate, Xenophon say they will send it to a Senate committee. I’m sure the senate committee will be very thorough, and if they suggest changes, the Government, which is a different beast to the Senate, should listen. Often senate committees do good work, but the Government takes no notice.

  42. On second thoughts, I don’t have as much confidence that the current senate will perform as well as they have in the past.

  43. “Just shoot them……..” has nothing to do with capital punishment . In Australia last century this was always preceded by a lengthy trial in the Supreme Court, often followed by court appeals.

    You will be too young to remember the last man hanged in Victoria, Ronald Ryan, summer of 1967. Lengthy trial, appeals, huge public outcry mostly against hanging, press campaigning, obdurate Premier Bolte, police threatening a strike if sentence commuted, crims hatching a far-fetched plot to spring him from Pentridge, Ryan dignified at the end after an overnight vigil by hundreds outside the prison, ghoulish public fascination…..

    “Just shoot them……” has more the character of Angus McMillan’s hunting parties in Gippsland, 19th century. A clue, Sir Jumpy: they weren’t hunting possums or swamp wallabies. More like Boko Haram or French jihadis.

    For pleasure in the Gippsland case, on occasion unarmed women and children; other times lightly armed men. Rifle vs. spear, fair fight, eh?

  44. Yes, it does put the boss man in the same paddock as Boko Haram and French jihadis at least in terms of what he was saying.

    I do remember Ronald Ryan, but not in that detail. So thanks for the refresh.

    Rifle vs. spear was more even when the rifle was a front-loading musket, which was the case, I believe, until around the middle of the 19th century. After that it was definitely no contest.

  45. Prove that first, a photo will not do.

    From the Complaints Register:

    On being advised of the complaint the business agreed to participate in conciliation.

    The business did not use your defence that there was no mention of the apprentice, race or colour. (The case above the one in question details that company’s explanation of its behaviour).
    Instead of claiming the employer was speaking about Boko Haram and capital punishment the company acknowledged the allegation by entering conciliation.

    Now Sir Jumpy QC, it’s up to you to rebut the argument I, and the HRC, have made. Hint: you’ll need evidence, not imaginary justifications.

  46. Zoot
    The Company took the less expensive option when offered 2 no win situations, thats what non- imbeciles do when facing a stacked system.
    No proof of guilt and no admonition of guilt.
    Had the ” defendant ” had the luxury of free lawyers and plenty of free time ( which most small business owners don’t have ) then he could have gotten a fair trial. He did not.

  47. oh yeah, admission, bloody auto correct and no proof read from me, sorry.
    How about the main issue not the typo ?

  48. The Company took the less expensive option when offered 2 no win situations…

    How do you know this? Are you on the staff of this company?
    You have a remarkable knowledge of its inner workings.

  49. For the main issue, I would look to HRC fact sheets and case histories. As mentioned up thread, I don’t believe the QUT matter should have reached the courts.

  50. That looks to be the intended result of the law Ambigulous, bullied into capitulation and dismissing the notion of innocent until proven guilty.
    I say ” guilty ” loosely when the ” crime ” is just vocalising a thought.
    I wish none of your thoughts get on the banned list.

  51. I wish none of your thoughts get on the banned list.

    In Australia there is no list of banned thoughts. We are still free to think anything at all, even though we live in a repressive sinkhole of a country (honestly, I don’t know why a freedom warrior such as yourself remains here).

  52. (honestly, I don’t know why a freedom warrior such as yourself remains here).

    Only a coward would leave his country in times of repression, Id rather stay and fight.

  53. Jumpy, I don’t think you understand that 18C does not make discriminatory speech illegal, it’s just unlawful. And the HRC does not decide whether something unlawful has occurred, that can only be done by the courts.

    The HRC doesn’t conciliate every case, and only 5% of those it takes on end up in the courts.

    The problem I have is that the free speech warriors want the right to hurt people.

    Physically you can’t poke anyone in the chest in anger and expect to stay out of trouble.

    Why is it that free speech warriors want the right to hurt people? You keep dressing it up as merely expressing an opinion.

  54. I want to know how 18C and 18D restrict Jumpy’s free speech?
    What is he unable to say? What vile racial slur can he not utter because of the draconian Racial Discrimination Act 1975?
    And why does he want to utter it?

  55. zoot, Jumpy has gone strangely quiet.

    Leyonhjelm says that the law simply drives racism undergound. He says we need it out in the open (a burst boil was the image he used) so that we can deal with it.

    Recently in Sydney Mark witnessed a woman abusing the bejesus out of a Chinese female student, who was most distressed. The woman claimed that Pauline Hanson had made her brave enough to say what she thought.

    Mark intervened by taking a video of her with his phone and threatening to take it to the police. Actually the police wouldn’t deal, because it’s not illegal, but it stopped her.

    I’d prefer a situation where the woman thought she should STFU or get into trouble.

    Jumpy and Leyonhjelm apparently think not.

    There are plenty of places on Facebook where people can share their racist shit in the absence of victims.

  56. What would I like to be lawfully say ?
    How about “‘ ‘just shoot’em, just shoot the f***ing c***s’ ” if that is what I wanted to say.
    Of course I don’t, but if I did.

    Would that have been racist if the Apprentice was Chinese ?
    Or how about if the Boss was Aboriginal ?
    Or what if he sang ” Baa baa black sheep ” ( which is incredibly racist and offencive now for some reason ) ?

    I mean given the summery given is so vague in the first place it’s impossible to know if the people the Boss was referring to were actually Aboriginal or the Apprentice just assumed they were.

    But hey, once the claim is made, what to do. If the Boss chose to fight it, and wins, who pays his lawyer bills ?

  57. To start from the bottom up.

    You don’t have to have lawyers in the HRC process.

    I think the events probably did happen, as claimed. In plenty other cases it was reported that the offensive actions were denied. In this case they weren’t. And you’d have to think the HRC would try to get a handle on the truth of the matter.

    If the boss were Aboriginal or Chinese, of course it would be racist. What you need to wrap your mind around, however, is that the victim had probably experienced a lifetime of racism. It’s about insiders and outsiders, who has the power and what they do with it.

    Of course I don’t, but if I did.

    Depending on the circumstances and how you did it you would probably cause harm, which is why we have 18C.

  58. If the boss were Aboriginal or Chinese, of course it would be racist.

    ( I said if the apprentice were Chineese)
    And no, in neither case would the HRC have cause to act, racist or not.

    This ” harm ” you speak of, how is that verified or quantified ? Just the sayso of the complainant ?

  59. You don’t have to have lawyers in the HRC process.

    You would be an absolute fool not to have legal representation present and advising.

  60. Of course I don’t, but if I did.

    So Jumpy is not restrained at all, he just wants to make sure other people who make vile racist slurs are not inhibited by the Racial Discrimination Act 1975.
    How selfless.

  61. How serious?

    I can only repeat:

    To fall within 18C the speech must have:

    … profound and serious effects, not to be likened to mere slights

    That’s how the judiciary see it. We actually have no information about the basis on which the HRC act to conciliate, or what the threshold might be.

    Whether it’s racist or not doesn’t depend on which race is involved in the doing and receiving. The group experience of Aborigines in Australia, however, is a special circumstance.

    As to quantifying, intrinsically impossible. You don’t know what harm is caused over what period of time, which is why you should take care.

  62. zoot

    So Jumpy is not restrained at all, he just wants to make sure other people who make vile racist slurs are not inhibited by the Racial Discrimination Act 1975.
    How selfless.

    Give me an example of how you could fall foul of 18c against me.
    It’s OK, I promise not to invoke 18c, just wanna see if any example qualifies no matter how nasty and I will try and be as offended and insulted as ” reasonable “.
    Go!

  63. Brian

    You don’t know what harm is caused over what period of time…

    And can you or anyone else judge if its confected ?
    You know, to feel real harm when you judge others are the focus of bad words ?

  64. Whether it’s racist or not doesn’t depend on which race is involved in the doing and receiving

    Oh yes it does in the RDA Act in practice.

    Same challenge as zoots “Give me an example of how you could fall foul of 18c against me.”

  65. And can you or anyone else judge if its confected ?

    Sometimes you can, sometimes you can’t, sometimes you are right, sometimes you are wrong.

    In the school system where I used to work, though not in the front line, it can be devastating to a teacher if there is a false complaint. On the whole though, that is rare, and complaints must be taken seriously.

    I imagine it’s similar with the HRC.

  66. Whether it’s racist or not doesn’t depend on which race is involved in the doing and receiving

    Oh yes it does in the RDA Act in practice.

    What happens in practice is because there is one dominant race and a number of minority races.

    I was talking about racism in principle.

  67. Give me an example of how you could fall foul of 18c against me.

    I asked first (on September 24 at 1:18 pm):

    Serious question for Jumpy – What “vile racial hate speech” directed at you has had, or could have, the power of the epithets n*gg*r or c**n?
    Try as I may I can’t think of one.

  68. What happens in practice is because there is one dominant race and a number of minority races.

    Brain, I don’t even know my race, am I ” the dominant ” ?
    I recognise some of the ethnicities through the male names though. I recon I share about the same amount of Celtic as Adam Goodes.

  69. Jumpy, many people are getting their DNA analysed these days to ascertain their ethnic heritage. Apparently it doesn’t cost an arm and a leg.

    However, for the purposes of 18C in the earlier post I linked to Kristopher Wilson’s post where he comments on the legal aspects of the David Leyonhjelm case. He reckons in terms of 18C you can be considered “white” or “Caucasian”, and as such a race. In Australian society you are definitely dominant.

    As to Aboriginality as a racial identity, customs differ in different countries as to how first peoples are recognised. I don’t have anything to say about Adam Goodes. I’ll leave that to him.

  70. When you say that

    in terms of 18C you can be considered “white” or “Caucasian”, and as such a race. In Australian society you are definitely dominant.

    you are talking the group rather than individuals. Yet in terms of impact of behavior between individuals what counts is the position of individuals in the pecking order.
    For example, the mining foreman at Groote was of Aboriginal descent which meant he would be considered a more dominant figure by most of the Caucasians in the mining dept. I can’t quite imagine my mate Stewie needing 18C to protect his little feelings or needing racial comments to sort out a Caucasian miner who wasn’t performing, however, if dominance is a criteria for who can take who to 18C people have to be considered as individuals rather than members of a dominant race.
    I think it has been just too easy for members of the educated elites like you and I to ignore and dismiss the problems faced by some groups including low status Caucasian men and women. It is creating opportunities for the likes of Trump and Pauline.

  71. According to the ABS in 2006, 6% of the Aboriginal population were small business owners or Bosses.

  72. I will invite folk to listen to Thomas Sowell, a thoroughly brilliant individual, speak some 35 years ago. And ask what has changed.

    https://www.youtube.com/watch?v=Y021WAdUlW8

    ( it’s an hour long so my hopes are not high )
    (( please start at the beginning, the preview has it almost at the end and i can’t fix it ))

  73. John, the statement you referred to about the Caucasian race being dominant was indeed a generalisation, and we can never argue from the general to the particular. Odds are, though, that it will be dominant white vilifying, offending etc coloured, because that’s how the numbers stack up.

    The exceptions don’t disprove the generalisation, they just are what they are, and yes, 18C seems to be mostly about individuals interacting.

    Once I went on a trip to Thursday Island. Apparently the TI woman who ran the single hotel-motel was the unofficial ruler of the Island. She was the one person you wouldn’t want to get offside.

    The plane landed on Horne Island and a ferry took you to TI. The distance from the wharf to the hotel was managed by a single taxi doing a shuttle service. I was the only white person, and had to wait until last.

    I guess it was discrimination, but it was a waste of time and counterproductive being offended.

    My sister taught at Hope Vale Mission, as it was, in the late 1950s, before Noel Pearson was born. She said that the full-bloods called the mixed-blood people “Chinese” which was a derogatroy term. An example of non-white racial discrimination perhaps.

    I think the problems faced by some groups such as low status Caucasian men and women constitute a separate problem. They can certainly get a hard time, but not usually because of their race.

    It troubles me that Australian society seems to be riddled with bullying and bullies who use all sorts of stereotypes to put people down.

  74. Jumpy, I watched the first 12 minutes. Actually very interesting. I’d like to see similar research done in Australia.

  75. If you’re interested in how ” The others ” see things its worth spending the remaining 48.
    I’m not sure there’s anyone in Australia able to do what Sowell can, we can only hope.

  76. Brian: I can’t think of any cases off hand of individual Caucasians being seriously attacked on the basis of race. However, from time to time I see examples on the box saying things about white people in general that would cause an outcry if a white person said something similar about black people. It is this sort of thing that gives the perception that the rules are different. Gives people like Hanson an attack point.

  77. I agree, John.

    Jumpy, listening to Sowell, I realised that things had changed in 35 years. Jensen’s notion that blacks were genetically inferior because their IQ was 15 points lower as measured in America had been sorted before Sowell came along.

    Sowell over-rates the importance of IQ, hadn’t heard of the Flynn effect (average IQ goes up from one decade to the next), hadn’t heard of Howard Gardner and his Frames of Mind (about multiple intelligences) but most of all he assumes that companies and institutions hiring people always select the best candidates. We knew back then that wasn’t true.

    I studied a bit of Ed Psych back around then, and conducted or participated in about 600 job interviews when I was in the public service.

    I worry about his methodology and data selection. I looked up the Wikipedia site on him. Have a look at the section on reception. Some think he’s the bees knees and the ants pants and should have gotten a Nobel prize, others have a different view, as:

    “To cite one article published in 1973, after controlling for age, region of residence, parents’ income, father’s occupation and education, place where raised, number of siblings, health, local labor, market conditions, geographic mobility, and seasonal employment, there still remained a 70% difference in the earnings of whites and nonwhites unexplained….the lack of such a [literature] review does preclude Sowell’s claim to a monopoly on ‘rigorous’ analysis. Sowell is walking on severely trampled terrain as if it were virgin territory. There is not one footnote to this chapter.”

    There’s plenty more like that.

    The real alarm bell is that he doesn’t listen to anyone on the radio other than Rush Limbaugh and a couple of others.

    I think you like him because he tells you what you want to hear.

  78. …but most of all he assumes that companies and institutions hiring people always select the best candidates. We knew back then that wasn’t true.

    No, he specifically says there is discrimination. A private company is dis-incentivised from doing so because there is a financial cost. This puts them in a less competitive position than other companies that don’t.
    Government institutions have no financial cost incurred due to being discriminatory.

  79. Jumpy, all I’m saying is that even when private companies are dis-incentivised from dicriminating, they still can’t select the best. They only think they can.

    Sowell doesn’t understand that.

  80. Jumpy, the main problem with Sowell is that he has a strong ideological position, and from his crtics, does not always treat other research appropriately.

    A lot has changed in 35 years, and unravelling his methodology and treatment of evidence at this distance would be virtually impossible. In short, I don’t have confidence in him.

    If you want a defence of free speech, there is a very good in Richard Fidler’s interview Richard King on the freedom of speech and the freedom to offend.

    King believes that differences are almost impossible to resolve unless we have free expression of opinion, that libel laws should suffice against vile and untruthful attacks, that only by having all the puss from the boil out in the open and dealing with it can we have a truly civil society.

    Yet he has limits when speech is threatening, as with the French woman who was attacked by other passemgers in a bus in Victoria a few years ago. It’s a matter of where you draw the line.

    Still, I think he underestimates the harm done by offensive and hurtful language, and seems to regard the price of a few being harmed as an acceptable price in the interests of what he sees as the greater good.

    Nevertheless, it is a very intelligent discussion and I commend it to you.

  81. Well the QUT case ended as I hoped it would.
    Will the students that got dragged through this thing get compo from anywhere, and who.
    Will the students that ” settled ( $5K ? ) get their money back ?

    Interestingly, for Leyonhjelm, the judgment found,

    … Indeed, evidence that someone was offended, insulted, humiliated, or intimidated by the relevant conduct is entirely unnecessary.

    Full judgment can be found HERE.

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