Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

Identity politics, political correctness and s18C

By Leon Bertrand - posted Tuesday, 8 November 2016


Last Friday, the Federal Circuit Court of Australia dismissed a claim brought by former Queensland University of Technology employee Cindy Prior under section 18C of the Racial Discrimination Act 1975 (Cth).

The facts

The claim arose from events on 28 May 2013, when some students were kicked out of a computer lab reserved for Aboriginal students by Ms Prior.

QUT student Alex Wood posted the following comment on Facebook:

Advertisement

Just got kicked out of the unsigned indigenous students computer lab. QUT stopping segregation with segregation?

Another student named Jackson Powell joined in with this comment:

I wonder where the white supremacist computer lab is

A third student named Calum Thwaites denied making a Facebook post which referred to ‘ITT niggers’.

The law

Section 18C(1) of the Racial Discrimination Act makes it unlawful to do an act otherwise than in private if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people and the act is done because of the race, colour or national or ethnic origin of the other person.

Section 18D of the Act provides a defence if the act in question is artistic work, is for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest, is a fair and accurate report of any event or matter of public interest or 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. A famous case of when section 18C resulted in a successful action was in the case of Eatock v Bolt [2011] FCA 1103 (28 September 2011). In that case conservative columnist Andrew Bolt was found to have contravened s18C by writing mocking columns concerning a handful of individuals of part Aboriginal descent who identified as Indigenous.

Advertisement

Judge Jarrett’s decision

Judge Jarrett found that the abovementioned comments by Wood and Powell were not reasonably likely to offend, insult or humiliate. Wood saying that he had been kicked out of a computer lab for not being Indigenous was a statement of fact. Powell’s comment asking about a computer lab for white supremacists was a poor attempt at humour and nothing more. Judge Jarrett accepted that Thwaites was not responsible for the Facebook post which contained the word ‘nigger’. For these reasons the claim was dismissed.

Why s18C needs to be reformed

This case arose from comments made on social media by students expressing understandable displeasure at having been thrown out of a computer room on the basis of their race. It is astounding that the Facebook comments in question resulted in a three year legal journey, including conciliation at the Human Rights Commission and proceedings in the Federal Circuit Court of Australia. Far more offensive things are said and done every day which do not result in any legal processes, and few would suggest that they should.

However, it is wrong to suggest that Ms Prior’s claim was vexatious. Although Judge Jarrett found in favour of the students, Prior still did have an arguable case. The comments in question could arguably have been likely to offend, and did in fact obviously upset Prior. For this reason, the case highlights and demonstrates the need to repeal or amend section 18C in order to prevent similar claims being brought in future.

The suggestion that the law worked well and justly by dismissing the claim ignores the fact that the students have endured enormous stress, inconvenience and reputational damage as a result of this case. They would have also incurred massive legal bills if Tony Morris QC had not agreed to act pro bono. The students must be considered victims of the case and a law which allows such a case to be brought to court when it never should have been at the very least needs to be reformed for this reason alone. 

Identity politics and political correctness

An interesting and yet unfortunate aspect of the case is the fact that Ms Prior’s emotional reaction to the posts was a grossly disproportionate response. Perhaps this is not surprising given the advent of identity politics and political correctness in recent decades. 

Identity politics, a child of cultural Maxism, is underpinned by a worldview which divides people into groups of oppressors and the oppressed, rather than as individuals who each have their own unique experiences. Justice involves granting special rights to members of oppressed groups in order to compensate for past wrongs committed against members of their group. According to this viewpoint, Indigenous disadvantage today is entirely the direct result of historical wrongs which have been committed against many Indigenous persons in the past, and to suggest otherwise is to be guilty of racism. Perhaps this is the real reason why Bill Leak’s controversial cartoon about broken homes in remote Indigenous communities so upset the politically correct. Principles of personal responsibility are eschewed because any wrongs they commit are attributed to oppressors, to the long term detriment of such individuals.

Political correctness is the ideological sibling of identity politics. Political correctness holds that we must not say or do things which might upset members of oppressed groups. It infantalises by treating members of certain groups as particularly sensitive beings in need of protection from hurtful comments, and provides moral validation and encouragement to those who take offence, in doing so promoting feelings of grievance. Section 18C itself is the legal promulgation of political correctness in Australia. One politically correct Australian academic has even described attempts to reform section 18C as being “not about free speech, but the freedom of white men to hand out racial abuse”. 

The Plaintiff’s political beliefs

Cindy Prior had clearly benefited from identity politics. We know that her Aboriginality obviously helped her obtain a role as an administrative officer in QUT’s Oodgeroo Unit on what may well be more favourable pay and conditions than a position she could have obtained in the private sector. She would have felt that asking non-Indigenous students to leave a computer lab reserved for Indigenous students was only just and fair. The result of identity politics and political correctness was a person of unusual psychological fragility. The psychological report of Dr Simone Shaw revealed that Prior unlikely to attribute personal responsibility to events that occur in her life, as well as the following insights:

Ms Prior presents with strong convictions in relation to fairness and equity and her sense of injustice, not only in relation to the most recent workplace incident, but this was also evident through her recollections of her involvement in four previous workplace incidents and two historical personal incidents that subsequently caused her significant distress and she reportedly instigated legal involvement on several occasions to resolve those issues. Her core belief of fairness and equity justice has resulted in a sense of injustice in relation to the incident on 28 May, 2013.

Conclusion

The evidence before the Federal Circuit Court suggested that Cindy Prior’s pre-existing psychological frailties, which made her fear a KKK presence at her university as a result of the abovementioned Facebook posts, were the products of the infantilisation of Indigenous peoples caused by identity politics and political correctness. And having been humiliated in the courts and facing a substantial award of costs against her, she is now herself a victim of identity politics and political correctness. Those supporters of section 18C who are so concerned with the psychological wellbeing of Indigenous individuals should bear in mind the unintended consequences of identity politics and political correctness that underpinned their support for section 18C. As well as promoting political divides and restricting fundamental rights such as free speech, identity politics and political correctness ultimately harm the very people they are intended to assist, and this is yet another reason why s18C should be repealed or amended.

  1. Pages:
  2. 1
  3. 2
  4. All


Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

17 posts so far.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

Leon Bertrand is a Brisbane blogger and lawyer.

Other articles by this Author

All articles by Leon Bertrand

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Article Tools
Comment 17 comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy