Could Section 18C protect ‘angry white males’ like David Leyonhjelm?

While there are legitimate grounds for critique of Section 18C, David Leyonhjelm’s ‘test’ case is not the ideal candidate. AAP/Lukas Coch

In a highly critical opinion piece published on August 8, Fairfax Media journalist Mark Kenny declared that Senator David Leyonhjelm and Senator-elect Malcolm Roberts were speaking with “angry-white-male certitude” and were “rank apologists for the resentment industry promoted by angry-white-male shock-jocks” during their recent appearance on ABC’s Insiders.

Kenny’s comments were directed in particular at Leyonhjelm’s support for the removal of the words “offend” and “insult” from Section 18C of the Racial Discrimination Act, and Leyonhjelm’s argument that “offence is always taken, not given” and “if you want to take offence, that’s your choice”.

Section 18C makes it unlawful to do an act that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, because of their race, colour, or national or ethnic origin.

In response to Kenny’s piece, Leyonhjelm has lodged a complaint with the Human Rights Commission. He alleges the use of the term “angry white male” is a breach of 18C.

Leyonhjelm believes this case will prove his point that 18C places an undue burden on free speech. He also relies on the assumption that a “white person” being able to rely on racial protection would be viewed as absurd.

But if Leyonhjelm’s aim is to highlight absurdity, his plan may backfire. His complaint could instead showcase the difficulty in launching a successful action under 18C, and undermine an argument in support of its repeal – that it doesn’t apply to the benefit of all people equally.

What makes Leyonhjelm’s complaint important?

Leyonhjelm’s complaint requires two preconditions: that “white” is a racial group and that, as a class of persons, “white” is capable of protection under the act.

There is no limitation, express or implied, that Section 18C applies only to minorities. That members of non-minority racial groups tend not to rely on its protections is perhaps indicative of their privilege and capacity to respond to racial prejudice through more effective means.

Whether “white” is a race is an interesting point. In Australia, “white” is often used interchangeably with terms like Caucasian, Anglo-Celtic and Anglo-Australian – generally as a marker of ancestry, rather than racial identity.

This is arguably an inherent weakness in Australia’s public racial discourse, although Australia is hardly alone in this respect. But, if we are to classify minority groups on race, it stands to reason the majority group must also be a “race” for the purpose of 18C.

This complaint has been reported as the “first … of its kind”. While it does appear to be the first based on the term “angry white male”, it is not the first involving terms capable of being applied to a “white” person. The first case under 18C involved consideration of the use of the terms “Poms” and “Pommies”.

Case law and Section 18C

While there are legitimate grounds for critique of Section 18C, Leyonhjelm’s case is not the ideal candidate.

The perceived issue with 18C is that the level of harm required to enliven its protection lacks a defined scope, particularly through use of the term “offend”. This has instead been left to the Human Rights Commission and the courts to interpret.

It is plausible, however unlikely, that the application of 18C could be broadened unacceptably in the future, particularly if the ordinary meaning of “offend” is applied. As it stands, however, for the purpose of 18C “offend” does not carry its ordinary meaning. There is a large volume of cases to evidence that fact.

“Offend” has necessarily been interpreted within the context of racial hatred and must involve conduct having a:

… profound and serious effect, not likened to mere slights.

An objective test is applied based on community standards and the perceptions of the relevant class of victim. A person cannot simply claim they were offended. The mere feeling of offence, although considered, is not enough.

To adopt Leyonhjelm’s terminology, while a person might “choose” to be offended, they cannot “choose” to successfully avail themselves of 18C.

Applying Section 18C to Leyonhjelm’s case

If written in a “malicious manner”, or to cultivate “hatred or antipathy” beyond a “mere slight”, the words “angry white male” could conceivably fall within the ambit of Section 18C.

The issue here is two-fold. Does the article contain evidence of any such maliciousness or cultivation of hatred? And could the use of “angry white male” in that context cause a “profound and serious effect” on persons who identify as white males?

It is difficult to see how the use of “angry white male” in Kenny’s article could be construed as anything other than a “mere slight”. Arguably, it appears to be used as shorthand to mean a person in a position of privilege who believes that attempts to redress the real effects of racial prejudice are inequitable, promote victimisation and are a form of special treatment.

Importantly, it is not the term itself that is assessed, but the context in which it is used. In the case of Hagan, the use of the term “nigger” in the name of a grandstand was deemed not to contravene 18C, since no reasonable member of the local Aboriginal community would have found this particular use offensive.

However, if it could be argued that Kenny’s use of “angry white male” does reach the necessary threshold, there is no clear reason why a complaint should not be lodged.

Where to from here?

If the complaint is accepted, the Human Rights Commission will move to facilitate a conciliation session between Leyonhjelm and Kenny.

If the issue is not resolved, then Leyonhjelm could seek further court action. But whether Kenny could rely on a defence under Section 18D – fair comment made reasonably and in good faith – remains an open and valid question.

Leyonhjelm’s intent is to highlight the issue of using “offend” in Section 18C, but his case will likely not help his argument, despite it being entirely applicable. It will certainly be one to watch, just not for the reasons he hopes.