Natural justice wins the day

Illustration: Sturt Krygsman

IF you make an idiot of yourself on a train these days, you might find yourself on YouTube. If you’re content to sit politely next to perfect strangers and try hard not to invade their personal space, you won’t.

Common decency, conventional courtesy and civic restraint are of little interest to video-sharing websites which have a preference for weird stuff — self-lubricating NRL stars, major league meat ball eating competitions and foul-mouthed, Sinophobic commuters like Karen Bailey.

Bailey’s crass behaviour should remind us “how virulent racism is in this country,” suggests The Sydney Morning Herald’s Sam de Brito. “Any person who mixes with a cross section of Australia is not surprised by racist language or sentiments.”

If we were to follow de Brito’s logic we would further conclude that the planet is being overrun by biped cats and dancing dogs, since these too appear on YouTube. Yet real-life experience suggests otherwise; the behaviour of most pets is wholly unremarkable.

We know too — if we can stop wringing our hands for a moment and think about it — that few people go bonkers on public transport. Fewer still are prepared to put their bigotry on display as unselfconsciously as Bailey.

In fact, without wishing in any way to prejudice the outcome of her forthcoming court case, Bailey appears to be a complete and utter fruitcake of the kind encountered only occasionally in the course of everyday life. The footage shows that Bailey’s fellow passengers are embarrassed. If anyone in the carriage shared her unreconstructed views they did stand up to say so.

Some, however, objected strongly to her outburst. Indeed one chivalrous Caucasian makes a point of offering his seat to the woman of East Asian heritage who caught the brunt of Bailey’s abuse.

A fair reading of the video leads to the conclusion that racism is somewhat less entrenched in the Australian psyche than the political correctors claim. If Bailey’s behaviour were normal, no one would bother swiping on their phone camera. If her fellow passengers were indifferent to racism they wouldn’t try to interfere.

It seems perverse, therefore, that the incident should be cited by the defenders of clause 18C of the Racial Discrimination Act as an argument for heavy-handed regulation.

As with the racist heckling of Adam Goodes, the Bailey incident exemplifies the self-governing society. Civil sanctions independent of the law appear to have worked well enough; the offender has been humiliated and the boundaries of acceptable behaviour have been reinforced.

This is not enough to satisfy Vic Alhadeff, the chairman of the NSW Community Relations Council. He told AAP: “It is very much an argument about why we need strong legislation against racial vilification. It is very much an argument about why we must not dilute or change Section 18C.”

The importance of 18C, says Alhadeff, is that it makes “an ­unequivocal statement that we as a society will not accept racist conduct.”

If the purpose of the law was merely to “send a message”, however, then it can safely be revoked since its message has already sunk in. By now it may even have pierced the skull of Bailey, who has been the target of public opprobrium for days. The collective abhorrence towards her behaviour is in itself a statement that we as a society will not accept racist conduct. How much more unequivocal could it be?

On Friday, Bailey was charged by NSW Police and will face court on July 31. Presumably, therefore, she knows now that “racist behaviour will have consequences and will have penalties under the law”, which was Alhadeff’s supplementary justification for retaining 18C.

According to Human Rights Commissioner Gillian Triggs, “If the law were to be adopted as in the proposed changes by the Attorney-General, I think it’s very unlikely that you would get a prosecution.”

Triggs is right. It would be “very unlikely” that Bailey would be prosecuted under 18C, were the government’s draft amendments to be adopted. Indeed it is “very unlikely” that Bailey would be prosecuted under 18C as it stands, since it does not provide for criminal prosecution. As Triggs’s ­esteemed colleague, Tim Soutphommasane, explained in The Age in March, “Contrary to suggestions about being “prosecuted” or being ‘convicted’ under the law, Section 18C is a civil provision.”

The provisions of 18C, as we know from bitter experience, can be used to curtail free speech. As an instrument for maintaining law and order that is of practical help to the NSW Police, however, it is useless. Which is why the Central Coast constabulary ignored the Race Discrimination Act altogether and reached the tried and tested 1988 Summary Offences Act. Clause 4A of section 2 prohibits “offensive language in or near, or within hearing from, a public place or a school.”

Again, without wishing to prejudice the courts, one imagines it will do the trick.

The vilification laws passed by the Keating government were legislative overkill from the start. As the Parliamentary Library’s analysis of the draft bill noted, all states and territories have provisions protecting people against assault and damage that would cover racially motivated acts.

Some have separate race laws. It has been unlawful in NSW since 1989 for a person “by public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons” on the grounds of race. The use of offensive language or offensive behaviour on Sydney Trains is a breach of the Conditions of Carriage. A transport officer has the power to issue a $400 on-the-spot fine. If all else fails, there is always section 24 of the federal Crimes Act proscribing “seditious intent”. Seditious intention includes acts that “promote feelings of ill-will and hostility between different classes of Her Majesty’s subjects.”

The campaign against George Brandis’s modest amendments to the Racial Discrimination Act is looking more and more ridiculous. When the ordinary Australian citizen, armed with an iPhone, encounters a bigot on a train, they can generally be trusted to do the right thing.

Nick Cater is executive director of the Menzies Research Centre. The views expressed are his own.