Section 18C of the Racial Discrimination Act
Now given that I find prejudice and bigotry repugnant, it is probably impossible for me to ever wholly agree with Corey Bernardi, but I can at least understand where he is coming from. Yep I actually said I can kind of see Corey Bernardi’s point of view (I feel like I need a shower).
That isn’t the same as agreeing with it. I don’t, but I at least get why some people feel section 18C of the Racial Discrimination Act should be modified. It is a bit of an unfair simplification to say those who want to amend The Act want a legislative right to racially insult and offend others. The idea that I could unintentionally offend someone with an offhand comment and be found to be acting unlawfully does throw up the interesting conundrum that the lawfulness of my action is subjectively decided by how easily offended my audience is. Is this how our laws should work?
Well actually, before we get too worked up, it kind of is. The impact on a victim is usually taken into account in sentencing for a criminal offence. And the idea that you can act in an unlawful manner by inadvertently offending someone is fairly easily adjusted for. Just err on the side of caution with how you speak about people in a public place and save your offensive jokes for private conversations. “I didn’t mean to,” is rarely an acceptable excuse for causing harm, whether it be physical or emotional.
The catchcry that society is going soft is a pretty predictable and unpersuasive addendum to this debate. The simplistic idea that everything was better in, ‘The good old days,’ when we worried less about mental health and the impact of stress and bullying ignores the fact that many mental health issues and other problems went undiagnosed in that era. It also flies directly in the face of current campaigns around the need to be mindful of mental health and suicide.
Having said that, sometimes it is almost unavoidable that we offend someone. There are those in our community who have seem to have made an art form of taking offence, often on behalf of others who may not be that offended themselves. I believe this kind of overreach and the pushback it generates is actually a driver of sentiments opposed to political correctness. Certainly if the act catered to hypersensitive individuals, the retention of the words "offend' and 'insult' could potentially be exploited to go beyond its intended purpose.
But The Act doesn’t refer to the easily offended. It speaks of whether it would be 'reasonably likely' that someone would find our words or actions offensive. This isn't a throwaway line, but as I understand it, is actually a commonly used legal term designed to take some of the subjectivity out of legislation. This is an important distinction. Don't be afraid that you can be found to be acting unlawfully the moment you accidentally upset someone fragile (you can check the exact wording of The Act by clicking this link).
It is worth also noting that this is not new piece of legislation. It has been around for decades without stifling public freedom. David Leyjonhelm’s frivolous stunt notwithstanding, it has largely been used appropriately with only a small number of complaints proceeding to court, but most being dealt through conciliation and a small number dismissed.
I appreciate that right now terrorism and national security are significant topics on the national agenda and some people might feel they are restricted in what they can say about specific nationalities and religious groups, especially Muslims. But those of you desperate to sate your inner racist needn’t worry. The Racial Discrimination Act hasn’t stopped regular public outbursts from all manner of people such as Pauline Hanson and Sonia Kruger. This is because while breaching section 18C is unlawful, it is not actually a criminal offence, which makes consequences a lot less serious than is being made out. If it was as prohibitive as Bernardi likes to pretend, Andrew Bolt and Steve Price would not be able to speak publically at all. Would that be even the slightest bit sad?
That isn’t the same as agreeing with it. I don’t, but I at least get why some people feel section 18C of the Racial Discrimination Act should be modified. It is a bit of an unfair simplification to say those who want to amend The Act want a legislative right to racially insult and offend others. The idea that I could unintentionally offend someone with an offhand comment and be found to be acting unlawfully does throw up the interesting conundrum that the lawfulness of my action is subjectively decided by how easily offended my audience is. Is this how our laws should work?
Well actually, before we get too worked up, it kind of is. The impact on a victim is usually taken into account in sentencing for a criminal offence. And the idea that you can act in an unlawful manner by inadvertently offending someone is fairly easily adjusted for. Just err on the side of caution with how you speak about people in a public place and save your offensive jokes for private conversations. “I didn’t mean to,” is rarely an acceptable excuse for causing harm, whether it be physical or emotional.
The catchcry that society is going soft is a pretty predictable and unpersuasive addendum to this debate. The simplistic idea that everything was better in, ‘The good old days,’ when we worried less about mental health and the impact of stress and bullying ignores the fact that many mental health issues and other problems went undiagnosed in that era. It also flies directly in the face of current campaigns around the need to be mindful of mental health and suicide.
Having said that, sometimes it is almost unavoidable that we offend someone. There are those in our community who have seem to have made an art form of taking offence, often on behalf of others who may not be that offended themselves. I believe this kind of overreach and the pushback it generates is actually a driver of sentiments opposed to political correctness. Certainly if the act catered to hypersensitive individuals, the retention of the words "offend' and 'insult' could potentially be exploited to go beyond its intended purpose.
But The Act doesn’t refer to the easily offended. It speaks of whether it would be 'reasonably likely' that someone would find our words or actions offensive. This isn't a throwaway line, but as I understand it, is actually a commonly used legal term designed to take some of the subjectivity out of legislation. This is an important distinction. Don't be afraid that you can be found to be acting unlawfully the moment you accidentally upset someone fragile (you can check the exact wording of The Act by clicking this link).
It is worth also noting that this is not new piece of legislation. It has been around for decades without stifling public freedom. David Leyjonhelm’s frivolous stunt notwithstanding, it has largely been used appropriately with only a small number of complaints proceeding to court, but most being dealt through conciliation and a small number dismissed.
I appreciate that right now terrorism and national security are significant topics on the national agenda and some people might feel they are restricted in what they can say about specific nationalities and religious groups, especially Muslims. But those of you desperate to sate your inner racist needn’t worry. The Racial Discrimination Act hasn’t stopped regular public outbursts from all manner of people such as Pauline Hanson and Sonia Kruger. This is because while breaching section 18C is unlawful, it is not actually a criminal offence, which makes consequences a lot less serious than is being made out. If it was as prohibitive as Bernardi likes to pretend, Andrew Bolt and Steve Price would not be able to speak publically at all. Would that be even the slightest bit sad?