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Pub test is a kangaroo court for victims of racial hate



If you read The Australian you'll know not everyone is happy with Section 18C of the Racial Discrimination Act. It declares illegal any act 'reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people'.

Beer glasses in a pubThe campaign against the provision has gained force from the untimely death of gifted artist and cartoonist Bill Leak, against whom a complaint was brought for a cartoon depicting an Indigenous father and son.

Some politicians and the newspaper itself want 18C abrogated or substantially amended. The most recent suggestion is that 'reasonably likely' should be defined as the judgment of reasonable Australians — a 'pub test'.

Other politicians and community groups want it left unaltered. And many politicians, notably Barnaby Joyce, just wish the issue would go away. Most onlookers are more curious about the reasons why the people who propose and oppose change are so passionate.

Those who advocate change usually argue that to limit free speech as 18C does is a dangerous infringement of individual freedom.

Many critics also display a strong commitment to the free market. For them the economy and so national welfare are served only by competitive individuals and companies pursuing gain free from regulation that will protect particular individuals or groups. It is unsurprising that the sections of the media most in favour of neoliberal economic settlement demand most strongly the repeal of 18C.

Those against change argue that minority racial and ethnic groups are entitled to protection from vilification, and that it is in the interests of the whole community to legislate to ensure that they are safe. They argue further that there is an imbalance of power between media and the individuals and ethnic communities that they choose to attack. Legislation that establishes boundaries is desirable.

This analysis suggests that the argument about 18C is only part of a larger dispute about the proper place of government in public life, and about how the individual's freedom of speech and economic activity may be subject to regulation in order to protect the common good.


"If the patrons after a long night's drinking are made the arbiters of what would reasonably offend, those offended will see the process as a kangaroo court."


In a perfect world, a case could be made against having such legislation at all. The risk inherent in focusing on the legality of abusive speech is that we shall be drawn away from asking what kind of speech is ethically responsible. To ask how as human beings we ought to speak of one another is a more profitable question than to ask what should be made illegal. It is better that decency should commend self-discipline and respect in our speech than that we should rely on law to forbid abusive speech. The making of laws is always a confession of social failure.

In fact the limitations imposed by the act on freedom of speech are fairly small. Exemptions from the application of the law in 18D are broad — the complaint against Bill Leak was withdrawn but almost certainly would have failed because of 18D exemption — and the consequences of breach relatively mild. Acts that contravene it are not criminal but illegal. They therefore may not be prosecuted by the police and are subject only to civil suits. As a result relatively few cases have been brought, and very few have been successful. It might be argued, then, that the law is unnecessary.

Those arguments, however, ignore the symbolic force of law in an imperfect society in which we live. Indigenous Australians and immigrants from Islamic nations regularly report experiencing racist discrimination and abuse from a minority of Australians.

In public life the One Nation Party, which is able to exert some influence on legislation in a fragmented parliament, regularly criticises Muslims and demands an end to Muslim immigration. These views are also retailed by commentators in some mainstream media. They increase the anxiety of immigrants from Muslim nations.

In such a context any weakening of 18C will inevitably be seen both by the communities themselves and by those who hate them as the declaration of an open season upon them. The symbolic effect of such change on the confidence of minorities that they will be protected by Australian laws and institutions will be great. The common good demands the slight infringement on individual freedom.

The proposed 'pub test' change to 18C has a superficial appeal. It requires the judge to enter the world of reasonable Australians instead of entering the world of the persons offended when deciding whether an act is illegal.

The force of this change, however, is evident in its characterisation as a pub test. Traditional pubs attract few people from Islamic nations, and in them long-standing prejudices are likely to be aired. If the patrons after a long night's drinking are made the arbiters of what would reasonably offend, those offended will see the process as a kangaroo court. Others will see it as an assertion of the power of the strong over the weak.


Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street.

Topic tags: Andrew Hamilton, 18C, racial discrimination, Bill Leak



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Existing comments

When people ask "would it pass the pub test?" I ask for clarification "public bar or ladies' lounge?"

Samantha W | 14 March 2017  

"The proposed 'pub test' change to 18C has a superficial appeal. It requires the judge to enter the world of reasonable Australians instead of entering the world of the persons offended when deciding whether an act is illegal." This is the problem with the proposed "reasonable person" test ... it excludes 'the persons [or person] offended'. The implication of such exclusion is, in itself, offensive because it implies that the person or group offended is not reasonable, but just being over-sensitive. Tacit racism is usually identified primarily by the person or group offended, only realised, and hopefully acknowledged, by the person whose comment caused offence, when the offensiveness is explained. The benefit of section 18C is that it encourages the so-called "reasonable Australians" to hear their everyday language and commentary through the ears of minority persons. Such broadening of perspective of the majority group can only help unify our culturally diverse Australian society.

Ian Fraser | 14 March 2017  

You report , Fr Andrew, that Aborigines and Muslim immigrants experience racial discrimination and abuse from a minority of Australians. I agree and would add that white Australians experience discrimination and abuse from a minority of Aboriginals and Muslims. It is the abuser who is at fault regardless of who he is. It is sad that the vast majority of citizens who live in a particular culture with a particular humour expressed in speech in a unique way not intended to cause hurt or discrimination, should have that culture controlled by law. As you say, when we make such laws we confess social failure. My mother often called me a monkey - it had a number of contexts. I recall an Australian cricketer calling an Indian opponent a monkey which caused an international incident because interpretations are not uniform across all cultures. We should not have to legislate in our country to accommodate the sensitivities of all other cultures. If others wish to live in our society, embrace it - just as we should embrace the culture of any other country in which we might choose to live.

john frawley | 14 March 2017  

Some time ago, while working in a school library, I came across a book about hypersensitive children (a tiny minority) and their successful integration into school life, including the playground. This book allowed teachers and school staff to enter the world of the hypersensitive child. And to convey to the entire school community what was required of them. As Ian Fraser noted "such broadening of perspective of the majority group can only help unify our culturally diverse Australian society."

Pam | 15 March 2017  

Pam. Perhaps we need a book for the culturally hypersensitive which broadens their perspective on how they might better assimilate in the new culture they have chosen to live in. Surely they would find it much easier to embrace the majority than the majority might find it to embrace the minority.

john frawley | 15 March 2017  

OK so you have the right to express your ideas in Oz. But rights also imply responsibilities. In this case responsibilities to whom? To the hypersensitive, to lying politicians, to the unemployed, the illiterate, to those playing the person instead of the matter in hand? In many cases the person has the capacity to decide whether they will be offended or not. They might argue about whether they 'deserved' it or not. There is so much subjective stuff in these matters, there are so many varying individual sensitivities. However bullies do not deserve unlimited expression at the expense of less potent others. Particularly if the bullies have large publicity resources. I would think the only way to try to approach justice and or charity would be a kind of fair play test where a range of people could be asked to reverse roles with the target and asked, "If you were them, in their shoes and their suburb, clothes and wage bracket; would you feel hurt?"

Michael D. Breen | 15 March 2017  

Thanks John. I take your point. Although, when I think about the different cultures introduced into the Australian landscape, the majority already here have expected assimilation without regard to sensitivity. Would that be a fair comment?

Pam | 15 March 2017  

The irony of applying a pub test to decide the legality of an insult/slur is that the offending commenting in question is often dealt with immediately in a good old-fashioned punch-up! (No king-hits or coward punches please)

AURELIUS | 16 March 2017  

Whose inspiration was it to make a "pub test" the criterion for legislative amendment? It is unhelpful and deserves to be laughed out of court as it trivialises an important moral and social issue.

John | 17 March 2017  

Am I just lucky? Haven't seen any racist abuse lately, (ever?) & there're lots of races/nations where I live. But a friend used to always argue with me that "they hate us", he said he felt it on public transport, shops, in streets: "the way they look at me, I can tell they hate me." He was a friendly guy too. And he never went to pubs for 30 years. He even modified his attitude a bit when an Indian lady in sari saved him from falling off his bicycle. But basically he couldn't get right past it, was convinced I was some pc, wilfully blind fool. Kept saying the people who were ever most hateful to me were my fellow anglo-celt derived aussies. Baffled he was. Baffled I am of West Melbourne.

Jaq Spratt | 08 April 2017  

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