Why Ridiculously Stupid White Man David Leyonhjelm Will Lose His 18c Racial Discrimination Case

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News broke last week that Liberal Democrat Senator David Leyonhjelm has lodged a complaint with the Australian Human Rights Commission, alleging he was racially vilified by Fairfax journalist Mark Kenny, who called him an ‘angry white man’. Chris Graham explains why Leyonhjelm will lose, why the current debate around 18c is a ridiculous furphy, and why free speech has never really been under threat.

Obviously, David Leyonhjelm is a ridiculously stupid white man. That, for the record, is my genuinely held belief.

I add that qualification not because calling Leyonhjelm a ‘ridiculously stupid white man’ is defamatory. It’s not. If Leyonhjelm were to try and sue me for it, well-established case law would compel a judge to rule it ‘mere vulgar abuse’. Thus, it’s not defamatory.

I actually make the qualification because Leyonhjelm may instead try and ‘sue’ me through the Australian Human Rights Commission, under section 18c of the Racial Discrimination Act.

Which is precisely what Leyonhjelm is apparently now trying to do to Fairfax journalist Mark Kenny, who recently referred to Leyonhjelm in a column as an “angry white man” (and if you haven’t read Kenny’s column, you really should. It is a thing of beauty, and an increasingly rare beast in the click-bait Fairfax stable).

Leyonhjelm has reportedly launched an action in the AHRC alleging that Kenny’s article had the potential to ‘insult, offend, humiliate or intimidate on the basis of race, colour or national or ethnic origin’. Because white men are the real victims here.

And so, to the reason for my qualification, which also happens to be the reason why Leyonhjelm will lose, spectacularly, his case.

Contained within the RDA is an iron clad, bullet-proof defence to the kind of ‘free-speech-Chicken-Little-sky-is-falling-in’ nonsense that Leyonhjelm and every other thin-skinned white conservative like him (again, that’s my genuinely held belief) has been trying to peddle since Andrew Bolt officially became Australia’s first ‘convicted racist’ in 2011.

By way of brief background, I am, of course, referring to the Federal Court case of Eatock v Bolt, when a group of nine Aboriginal men and women successfully sued Bolt for a string of vicious – and false – articles Bolt wrote for the Herald Sun.

(IMAGE: Screengrab. NITV News).
Andrew Bolt emerges from the Federal Court in 2011, after he was successfully sued for racial discrimination. (IMAGE: Screengrab. NITV News).

In those stories, Bolt alleged that prominent Aboriginal people such as Pat Eatock, Professor Larissa Behrendt, Mark McMillan, Anita Heiss, Bindi Cole, Geoff Clark, Dr Wayne Atkinson, Graham Atkinson and Leeanne Enoch, began identifying as Aboriginal simply to access some magical, mystical financial benefits not available to other Australians.

The group, led by Ron Merkel QC, won their case. Bolt and his supporters have been sulking and throwing themselves about like wounded buffalo ever since.

Which brings me to the bit where Leyonhjelm’s case will also fall apart, and where it should become clear to even the most inflexible of minds that the never-ending conservative furore over 18c is not so much a storm in a teacup, rather a great big pity party from a group of (predominantly) white, privileged men who genuinely believe that they are the nation’s ‘great oppressed’.

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It should surprise no-one to learn that immediately after section 18c of the RDA is a section entitled ‘18d’. Fancy that?

Here’s what 18d says:

“Section 18C does not render unlawful anything said or done reasonably and in good faith:

…(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.”

In other words, provided that what you write is factual, or, if it’s not factual then it’s a genuinely held belief, you can’t be sued under the RDA.

I don’t imagine Mark Kenny will have much trouble establishing the facts in his defence: David Leyonhjelm is white; he is a man; and he no doubt occasionally gets angry. On top of that, Kenny’s article – unlike Bolt’s – is not littered with error, and he can quite easily establish that he genuinely believes Leyonhjelm is an ‘angry white man’ (Kenny also calls him a “boorish, supercilious know-all with the empathy of a besser block”… probably harder to prove the truth of that, but not hard to establish it’s Kenny’s genuinely held belief. He’s obviously met Leyonhjelm).

More broadly, and in even more simple terms, even if you stuff up and get your facts wrong, like Bolt did, you still have the protection of free speech, provided that you act in good faith.

Bolt lost his case because he didn’t.

What he wrote was not only not factual – the articles were littered with errors – but as became apparent during Bolt’s martyred days on the stand, his research essentially amounted to zero fact-checking. I don’t imagine that will surprise many people either.

Thus, Bolt lost the case because the iron-clad defence to section 18c – ie. section 18d – was not available to him.

At the risk of laboring the point, here’s what Justice Mordecai Bromberg found:

“… it was not done reasonably and in good faith in the making or publishing of a fair comment, within the requirements of section 18D(c)(ii) of the Racial Discrimination Act; or

(ii) done reasonably and in good faith in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest, within the requirements of section 18D(b) of the Racial Discrimination Act.”

And this: “…the facts asserted in the Newspaper Articles that the people dealt with chose to identify as Aboriginal have been substantially proven to be untrue.”

Which brings me to the other level of white (predominantly male) stupidity around this debate.

One Nation’s Malcolm Roberts tried to claim on ABC Insiders recently that 18c was introduced by “Julia Gillard to nobble Andrew Bolt”.

One Nation Senator Malcolm Roberts, appearing on ABC's Insiders program in August 2016.
One Nation Senator Malcolm Roberts, appearing on ABC’s Insiders program in August 2016.

In fact, 18c was introduced by Keating government Attorney General Michael Lavarch in 1995. That’s three years before Julia Gillard was even elected to parliament, 15 years before she became Prime Minister, and 16 years before Bolt was successfully sued under the 18c provisions. It also happens to be about three or four years before Bolt started writing his rants for the Herald Sun (in the late 1990s).

George Brandis made headlines in 2014 while railing against 18c when he remarked in parliament that ‘everyone has the right to be a bigot’. Which is strictly true, but under Australian law, our Attorney General seemed not to understand that there are so sanctions for being ‘said bigot’.

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Since Bolt lost, all the usual suspects have railed against 18c. They need to let it go. Really. So does the media. There is literally nothing to see here. Free speech is not under attack.

You cannot have a rational discussion about 18c without acknowledging the existence of 18d. But that is what conservative whingers keep doing, and the media keep letting them get away with it. It has to stop.

Of all those whingers, David Leyonhjelm is perhaps one of the least interesting, but that brings us neatly back to his boy’s own adventure in the Australian Human Rights Commission, and the other major reason why Leyonhjelm will lose his case.

Ego.

Shortly after news broke of his complaint, Leyonhjelm took to the airwaves to boast that he wasn’t really insulted, offended, humiliated and/or intimidated. He was just trying it on to expose how bad section 18c really was.

The work of the AHRC is extremely important. It has labored under funding cuts by the Coalition, and yet despite this, has still delivered crucial work, such as its inquiry into abuse in immigration detention.

And yet, despite the pressure on the Commission, an elected parliamentary representative appears to have tried to spark a government inquiry purely for sh*ts and giggles.

This appears to be in the tradition of federal Senators who rail against government waste, but are more forgiving of it when a particular bugbear gets under their own skin (think Cory Bernardi and his infamous Halal inquiry). But way of example, here’s a piece in the HuffPost where Leyonhjelm – to his credit – rails against the waste of $160 million of taxpayers’ funds on the same-sex marriage plebiscite.

So what do we do? Can taxpayers invoice Leyonhjelm for the cost of his stunt?

Sadly, no. But the AHRC does have the right to summarily dismiss a complaint if it finds there is no case to answer.

How the Commission proceeds in the face of this stupidity is a matter of pure speculation, but it’s seems pretty clear Leyonhjelm is seeking to waste the resources of a public institution purely for his own self-aggrandisement.

Liberal Senator Cory Bernardi, pictured in a screencap from an ABC 4 Corners report into Halal certification.
Liberal Senator Cory Bernardi, pictured in a screencap from an ABC 4 Corners report into Halal certification.

There is a simple resolution.

Once the AHRC deals with the matter – and obviously it will never find in Leyonhjelm’s favour – then that triggers a series of ‘remedies’ available to the good Senator, the most notable of which is that he has the right to proceed to the Federal Court to prosecute his argument… and Mark Kenny and Fairfax.

A Federal Court, I imagine, would take quite a dim view of anyone, let alone a parliamentarian, pursuing frivolous litigation.

But pursue it Senator David Leyonhjelm should, particularly if he expects to be taken seriously as a man of conviction. In other words, Leyonhjelm should put his money where his considerably large mouth (and ego is), and go all the way.

Ridiculously stupid white man notwithstanding, my bet is that he’s probably not that stupid.

* You can read the full summary that accompanied Justice Bromberg’s judgment in Eatock v Bolt here. It’s less than 1,000 words, and is written in simple language that even the laziest of journalists who continue to file stories on this ridiculous distraction should be able to understand.

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Chris Graham

Chris Graham is the publisher and editor of New Matilda. He is the former founding managing editor of the National Indigenous Times and Tracker magazine. Chris has won a Walkley Award, a Walkley High Commendation and two Human Rights Awards for his reporting. He lives in Brisbane and splits his time between Stradbroke Island, where New Matilda is based, and the mainland.

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