Hi 11up. I think whats being missed is the actual intent of 18C. It is not to make illegal offending or insulting etc in any circumstance. It covers as follows and I emphasise a key point in bold:
Section 18C of the RDA makes it is unlawful for a person to do an act in public if it is reasonably likely to "offend, insult, humiliate or intimidate" a person of a certain race, colour or national or ethnic origin,
and the act was done because of one or more of those characteristics.
So the test is was it done because of the race or colour or national or ethnic origin. So 18C is really about racism.
The actual wording inSection 18C is:
"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.”
The Act goes on to basically specify that it covers what is done in a public way rather than in private.
Frankly I see no problem with the way its worded.
Defamation is another matter altogether. Its where it is alleged false information is made public intended to cause harm. The LAWSTUFF website defines defamation as follows and is what this Harmer situation is apparently about.
What is ‘defamation’?
Defamation is when someone spreads false rumours about you and as a result hurts your reputation. Basically, you can sue someone for defamation if they say something untrue to other people that is likely to make ordinary people think less of you. The goal of suing someone for defamation is both to set the record straight and to get compensation (money) for the harm you’ve suffered.
But it’s important to remember that suing someone is very complicated and expensive and there are often other ways to resolve the situation. Please see our section on “What can I do if I have been defamed” below.
When will something be ‘defamatory’?
First, at least one person (other than the person who is being defamed) has to see or hear the false information.
Second, the material must be such that if an average person saw or heard, it, that person would think less of you. For example, it can be defamatory for someone to:
say you are dishonest or disloyal,
ridicule you,
accuse you of committing a crime, or
say you have a disease.
It may also be defamatory for someone to imply something negative about you.
http://www.lawstuff.org.au/sa_law/topics/defamation
