Identity politics, political correctness and section 18C of the Racial Discrimination Act

On 4 November 2016, Judge Jarrett of the Federal Circuit Court of Australia dismissed a claim brought by Cindy Prior under section 18C of the Racial Discrimination Act 1975 (Cth) as a result of posts published on Facebook by students at the Queensland University of Technology that complained of being kicked out of an ‘Indigenous only’ computer lab. This ends a 3 year long legal saga and ordeal for the students concerned.

The facts

On 28 May 2013, some students were kicked out of a computer lab reserved for Aboriginal students.

QUT student Alex Wood posted the following comment on Facebook:

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 1975 (Cth) provides as follows:

Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, 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.

People sued under section 18C typically seek to plead the defence under section 18D:

Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) 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 suit was in the case of Eatock v Bolt [2011] FCA 1103 (28 September 2011). In that case a conservative columnist named 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. Bolt had suggested that these individuals had chosen to identify as Aboriginal in order to qualify for prizes and obtain career clout.

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.

Analysis

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 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 committed by the oppressed 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 former 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”.

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:

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 above mentioned 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 for a variety of reasons 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.

 

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