Racial Discrimination Act Section 18C - v - "The Angry White Male"

Wednesday 17 August 2016 @ 11.16 a.m. | Crime | Industrial Law | IP & Media

As the ABC News has reported recently, the outspoken Libertarian [not to be confused with the Liberal Party] cross-bench Senator David Leyonhjelm has lodged a complaint with the Human Rights Commission over an article by Fairfax journalist Mark Kenny, in which, among other things, he was labelled an ". . . angry white male" and ". . . hate-speech apologist". Senator Leyonhjelm, it is reported, has taken up the article as his chance to test the racial vilification law, a law which he and several other cross-bench Senators and even some Government Senators are on record as wanting abolished. This is not a new point of contention, there having been a campaign under the Abbott Government for more than a year, where various members of the current debate sought to have section 18C of the Racial Discrimination Act 1975 (Cth) (the RD Act) repealed and where, eventually in the face of a lot of electoral backlash, the measure was dumped.

Background to Current Challenge

Initially, the ABC reported that Senator Leyonhjelm planned to introduce a Bill to change racial discrimination laws and that, in the Senator's view, section 18C of the RD Act should be repealed. Senator Leyonhjelm first made his plans clear on the ABC Insiders program and it was also indicated he had the support of the newly elected Senator Bob Day who planned amendments of his own, the new One Nation senator-elect Malcolm Roberts who also had a similar stance on the race discrimination laws, as did newly elected Senator Derryn Hinch. One of the few Senators who did not support the measure was Senator Nick Xenophon.

Following on from the Insiders interview, Senator Leyonhjelm and his views on Section 18C were made the subject of an article by Fairfax Journalist Mark Kenny which among other comments described the Senator and One Nation senator-elect Malcolm Roberts as follows:

"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."

It is this type of language that Senator Leyonhjelm has sought to base his claim to the Human Rights Commission on.

What the Law Actually Says

In essence section 18C of the RD Act makes it illegal to carry out an act 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".

Further, section 18D of the Act seeks to provide a check on section 18C by listing exceptions to its operation, one for example being, that an offence is not illegal if it is a fair and accurate report or comment.

How the Complaint is Being Put

It is reported that Senator Leyonhjelm has said his opposition to section 18C was precisely why he was now using the words in the Kenny article as the basis of his complaint - and was quoted as saying:

"They're unlawful because, according to the Act, they are based on my colour and they are insulting or intended to insult . . . I'm seeking to have 18C of the Racial Discrimination Act repealed, so part of the process of highlighting why it should be repealed is to use it."

Further, Senator Leyonhjelm has said he was not affected by the criticisms, and that:

"I'm only insulted or offended by people I respect, so it didn't make me feel anything, . .".

Vexatious or Valid

In response to Senator Leyonhjelm, the journalist, Mr Kenny, it is reported, has provided a statement to the ABC, which accuses the Senator of "rank hypocrisy" and goes on to label his complaint a vexatious stunt:

"This vexatious stunt not only proves the point of my piece, it betrays the Senator's disregard for the real work of the Human Rights Commission, . . .".

In terms of how the law might apply, an excellent report in The Conversation indicates that, if they had been written in a “malicious manner”, or for the purpose of cultivating “hatred or antipathy” beyond a “mere slight”, the words complained of, namely “angry white male” could fall within the ambit of Section 18C of the RD Act. The real issues being: did the Kenny article contain ". . . evidence of any such maliciousness or cultivation of hatred? And could the use of 'angry white male' in that context cause a 'profound and serious effect' on persons who identify as white males?"

The Conversation takes the view that the chances of the article being held to offend section 18C are very low and unlikely, saying:

"It is difficult to see how the use of 'angry white male' in Kenny’s article could be construed as anything other than a 'mere slight'. Arguably, it appears to be used as shorthand to mean a person in a position of privilege who believes that attempts to redress the real effects of racial prejudice are inequitable, promote victimisation and are a form of special treatment".

Certainly, it seems that the debate over section 18C is set to keep coming up - and - given its previous incarnations, the debate is starting to look a bit like the lyric from the song Hotel California, that is, a debate you can check out from but can never leave.

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