The sorry history of the Bolt clause

As our race discrimination commissioner Tim Soutphommasane correctly points out, the history of Australia’s racial vilification laws is not well known, yet his recent 7000 word essay presents a misleading picture.

Soutphommasane claims the 1995 changes to the Racial Discrimination Act mirrored the recommendations that the then race discrimination commissioner Irene Moss made in her 1991 report National Inquiry into Racist Violence.

He omits to mention that Moss expressly warned the government against setting the kind of low threshold for complaints that became incorporated into the notorious 18C.

Andrew Bolt could not have been prosecuted if the Act had followed Moss’s recommendation which was only to prohibit the incitement of racial hostility and racist harassment.

These are altogether more serious acts than those which merely offendinsult or humiliate as stipulated in 18C.

Moss was unequivocal on the matter on page 299:

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The commissioner was conscious of the problems experienced in New Zealand where a low threshold for complaints stipulated in section 9C of its Race Relations Act “was widely used and even abused by individuals complaining of insults or remarks of a relatively trivial nature.”

Moss continues on page 300:

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The weak underpinnings of Michael Lavarch’s 1995 RDA amendments were apparent to the Parliamentary Research Service. It produced a damning assessment of Lavarch’s 1994 Race Hatred Bill for the Parliamentary Library.

It compares the proposed legislation with the recommendations of Moss’s report and two others circulating at the time, the Australian Law Reform Commission’s Multiculturalism and the Law and Elliott Johnston’s Report of the Royal Commission into Aboriginal Deaths in Custody.

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The report draws particular attention to the proposed wording of 18C:

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Interestingly, the report also raises questions about the constitutional validity of the RDA amendments. The assumed source of constitutional power is the external affairs provisions in section 51 (xxix) of the constitution since the Bill is intended to implement in part the Convention of the Elimination of All Forms of Racial Discrimination and the International Covenant of Civil and Political Rights.

The report notes that there is a wide chasm between the wording of CERD and the ICCPR and the civil provisions proposed by Lavarch leaving room for a High Court challenge.

It is a mystery to me why Soutphommasane would invite us to revisit this history when it further undermines his case that RDA be left in its current form.

Clauses 18C and 18D were muddled from the start and have demonstrable illiberal consequences. The case for amendment is unanswerable.

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30 Responses to The sorry history of the Bolt clause

  1. Bribiejohn

    “When I was a child, I spoke like a child, I thought like a child, I reasoned like a child. When I became a man, I gave up childish ways”.

    Our governments, and our judiciary, are not protecting us but are helping our nation to become childishly weak and dependent on the nanny state to protect our sensibilities, instead of maturing into an truly “grown up” nation, where “sticks and stone may break my bones, but names will never hurt me”.

  2. Bill Thompson

    How convenient, when one of the architects of the law is the spouse of one of the complainants…

  3. Rabz

    It is a mystery to me why Soutphommasane would invite us to revisit this history when it further undermines his case that RDA be left in its current form.

    It’s no mystery to me. Soutphommasane’s a monumental dullard.

  4. Rafe

    I was a research officer in the Anti-Discrimination Board in MSW circa 1980 while Irene Moss was next door in our partner in equal opportunity, run at the time by Carmel Niland. Paul Stein was the President of the ADB. In those days you could support some of the activities of these bodies with a straight face but you could see the zealots moving in and since that time they have taken over, with the likes of Soutphommasane.

    My research was in intellectual handicap.

  5. 2dogs

    As I recall, Lavarch promised at the time that section 18C was only so as to allow application to a particular human rights tribunal (by making causing offense technically illegal), and that there would be no direct actions under it.

    We were conned.

  6. I am the Walrus, koo koo k'choo

    Great work Nick.

  7. Tom

    Lavarch’s 1996 RDA amendments were a timebomb that didn’t explode until more than a decade later. The extremists of the left had six years between 2007 and 2013 to lay a whole new series of booby traps which they all but admitted they were laying. Remember how they bragged how successful they were in guillotining legislation through? Changing the Senate in July will be just the beginning of the bomb detection task for this administration.

  8. Cold-Hands

    It is a mystery to me why Soutphommasane would invite us to revisit this history when it further undermines his case that RDA be left in its current form.

    As Gerard Henderson has documented in his Media Watchdog, Soutphommasane is a faux-academic who refuses to supply references to document his more outlandish claims. Expecting logical argument is a step too far.

  9. Joe

    So you are all arguing to allow for the public vilification of people. So much for the rights of the vilified.
    In public discourse, none of the fallacies of argument should be allowed. To use such tools, allows the left to freely impugn the integrity of both the argument and the person making the argument of the right. Or as Saul Alinsky instructs, play the man and not the ball. And for evidence I present the march in March.

  10. johanna

    @ Joe

    in public discourse, none of the fallacies of argument should be allowed.

    “Should be allowed? And who does the “allowing”?

  11. Aristogeiton

    Joe
    #1229580, posted on March 18, 2014 at 11:28 am
    So you are all arguing to allow for the public vilification of people. So much for the rights of the vilified.
    In public discourse, none of the fallacies of argument should be allowed. To use such tools, allows the left to freely impugn the integrity of both the argument and the person making the argument of the right. Or as Saul Alinsky instructs, play the man and not the ball. And for evidence I present the march in March.

    You’re wither an idiot, or trolling.

    “I don’t know what you mean by ‘glory,’ ” Alice said.
    Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
    “But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
    “The question is,” said Alice, “whether you can make words mean so many different things.”
    “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

  12. If we taught children proper reasoning skill in school, Joe, they’d be able to spot flaws and fallacies for themselves, without any interference from any bureaucrat. Too often, unfortunately, children are not taught logic but are instead indoctrinated in all sorts of fashionable pro-environmental, diversocultural, supertolerant, crooked ideologies.
    Dorothy L. Sayers, in “The Lost Tools of Learning”:

    Is not the great defect of our education today […] that although we often succeed in teaching our pupils “subjects,” we fail lamentably on the whole in teaching them how to think: they learn everything, except the art of learning. It is as though we had taught a child, mechanically and by rule of thumb, to play “The Harmonious Blacksmith” upon the piano, but had never taught him the scale or how to read music; so that, having memorised “The Harmonious Blacksmith,” he still had not the faintest notion how to proceed from that to tackle “The Last Rose of Summer.”

  13. Impenetrability! That’s what I say!

  14. Joe

    Deadman, I think you hit the nail on the head.
    To the rest, try to address the argument and not the man!

  15. bazza

    Don’t forget that Lavarch’s wife is Sarah Behrendt, one of the plaintiffs in the Bolt case.

    [Larissa Behrendt is married to Lavarch and was a plaintiff in the Bolt case. Sinc]

  16. johanna

    I suspect that bazza is one of our older (even than me) readers who got the name mixed up with the famous actrine, Sarah Bernhardt – 1844-1923.

  17. harrys on the boat

    So we have a twist of fate that Behrendt sued Bolt using a law dreamt up by her husband?

  18. .

    Joe
    #1229580, posted on March 18, 2014 at 11:28 am
    So you are all arguing to allow for the public vilification of people. So much for the rights of the vilified.

    You are an enemy of free speech. You are the wrong side of history, champ.

    Enjoy the rogues gallery with Pinochet, Hitler and Mao.

  19. Nanuestalker

    Hmmmm … nice post! It’s always good to have a historical background. Thank you for sharing your research Nick.

  20. Nanuestalker

    If we taught children proper reasoning skill in school [...]

    +1

  21. Joe

    Dot:

    You are an enemy of free speech. You are the wrong side of history, champ.
    Enjoy the rogues gallery with Pinochet, Hitler and Mao.

    quod erat demonstrandum.
    Look, I have no problems with you arguing the case. Perhaps we should harden up? Perhaps you could address the issues. The right to free speech, is NOT the right to bully.

  22. Abu Chowdah

    Look, I have no problems with you arguing the case. Perhaps we should harden up? Perhaps you could address the issues. The right to free speech, is NOT the right to bully.

    If by bully you mean intimidate, then there are laws that cover such matters. If by bully you mean offend sensibilities, then you are antagonistic to the concept of free speech.

    As Stephen Fry wrote:

    It’s now very common to hear people say, “I’m rather offended by that”, as if that gives them certain rights. It’s no more than a whine. It has no meaning, it has no purpose, it has no reason to be respected as a phrase. “I’m offended by that.” Well, so fucking what?

  23. Gab

    If by bully you mean intimidate, then there are laws that cover such matters.

    I was thinking about this earlier. We do have laws against intimidation and I’m assuming we have laws against vilification so then the only reason we have the RDA is purely based on race and religion.

    Intimidation is intimidation regardless of the nature or source. This RDA rubbish is just doubling up on laws already available to all, regardless of their race or religion, no?

    The white-nine just got all hurty feelings over the truth of Bolt’s columns. Any wonder they didn’t sue him for defamation? They’d be laughed out of court.

  24. Big Jim

    Interesting to see modern libertarians tip-toeing around ‘hate speech’ nonsense. They basically support the premise of locking up people up for double-plus ungood crime speak while arguing furiously about a few angels on the pinhead.

    Imagine a modern feminist saying ladies should be admitted to the front bar, as long as they’re ‘respectable’, and don’t have tattoos, piercings or ‘I’m a slut and proud of it!’ logos on their T-shirts. I don’t think so. Feminists have more balls, and more unity of purpose.

  25. Tel

    Good research, valuable contribution.

    It is a mystery to me why Soutphommasane would invite us to revisit this history when it further undermines his case that RDA be left in its current form.

    Because he did not expect anyone to make the extra effort to call him on it.

  26. .

    Joe
    #1230069, posted on March 18, 2014 at 6:26 pm
    Dot:

    You are an enemy of free speech. You are the wrong side of history, champ.
    Enjoy the rogues gallery with Pinochet, Hitler and Mao.

    quod erat demonstrandum.
    Look, I have no problems with you arguing the case. Perhaps we should harden up? Perhaps you could address the issues. The right to free speech, is NOT the right to bully.

    Fuck off. If you’re offended, fuck off again. That’s my argument and better men than you have died in arms to defend that right.

  27. .

    Look, I have no problems with you arguing the case. Perhaps we should harden up? Perhaps you could address the issues. The right to free speech, is NOT the right to bully.

    Is this bloke serious or taking the piss…can you imagine…”sorry Mister Dot, you have been issued a warning under s 18C of the RDA, the HRC cannot have you bullying Herr Hitler and Senor Pinochet like that, mocking them as lunatic fringe dwellers…”

    I suppose those Islamic extremists in Europe were bullied when they were called out as death worshiping nutters as well by the cartoonist?

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