Insights into litigation, sports law, media and legal culture

Did Karl Stefanovic’s 7-Eleven boat sail too close to the wind?

In the true spirit of our Australian cricketers, Australian supporters have never been short of a sledge. Karl Stefanovic’s role as host of Channel Nine’s Today Show puts him in the front line of these sorts of interactions. This brings us to 26 March 2015, shortly before Australia was to play India in the World Cup semi-final. The winning team would be on the cusp of being declared champions of the 50 over form of the game.

Interviewing Indian cricket fans, Karl said: “I was just gonna ask … Who’s going to be manning 7-Elevens today?”

Thus, the week’s water cooler topic was born.

I found the comment light-hearted and amusing.  I even had a chuckle. I accepted though, that I had crossed into Politically Incorrect Land. Knowing this, I tested my perspective, dived into the legislation, then re-read the Andrew Bolt case.  The upshot? It’s complicated.

Karl Stefanovic’s comment amused because it resonated with my experience of attending many 7-Eleven stores. I will leave it at that, because the process of self-justification I have since engaged in has failed to convince even me.

It has been suggested to me that surely we can make factual observations about race without fearing trouble with the Thought Police.

Well, if section 18C of the Racial Discrimination Act 1975 (Cth.) gives the Thought Police their mandate, the answer is not so clear.

Let us put Karl’s comment through the filter of section 18C and see where we end up. In short, it is unlawful conduct if:

  • It happens in public – Tick;
  • The act is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people; and
  • 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 – Tick.

Accepting that the comment was at the lower end of the scale, let us see what Justice Bromberg said in the Andrew Bolt case about the second limb of the test.

Andrew Bolt case

Andrew Bolt is a columnist who was sued over two articles he wrote in the Herald Sun newspaper. The first was called “It’s so hip to be black”. The second article was called “White fellas in the black”. Justice Bromberg found that the articles were intended to argue a case that some people had chosen to identify as Aboriginal even though they lacked “biological integrity”. Mr Bolt imputed that these people were not sufficiently Aboriginal to be genuine.

The judge was clearly unimpressed by the articles, with Bromberg J singling out the second article, in particular, for its mockery and cynical tone. He referred to the derisory description of two of the individuals as “from a tribe of people who face terrible racism just because of the colour of their skin”. He noted that Mr Bolt had referred to one person as “pale as a blank canvas” and another “as pink in the face as they are in politics”. Mr Bolt had also emphasized that “you would think public funds would at least go to people who looked Aboriginal”. The judge found that a number of the individuals exemplified were derided and ridiculed.

The judge found that the imputations conveyed by the two newspaper articles were reasonably likely to offend, insult, humiliate or intimidate the people in question (or some of them). He also found that the section 18D defence did not apply, because the articles contained distortions of truth, erroneous facts, and provocative and inflammatory language.

Surely Karl Stefanovic’s case is far removed

The light-hearted, if misguided, banter on the Today Show seems a world away from Andrew Bolts’s diatribe.

Yet section 18C might still apply. This is because it does not take much to offend someone, and the test is subjective.

Consider for a moment the definition of “racism” in the Macquarie Dictionary:

1. the belief that human races have distinctive characteristics which determine their respective cultures, usually involving the idea that one’s own race is superior and has the right to rule and dominate others.

  1. offensive or aggressive behavior to members of another race or people stemming from such a belief.
  2. a policy or system of government and society based upon such a belief.”

The first limb concerns one’s belief. The second limb concerns one’s behavior, but stems from such a belief. The third limb concerns a system, but again stems from such a belief.

However, one’s beliefs have nothing to do with section 18C.

Justice Bromberg explained that section 18C does not refer to racial hatred or hate. Further, the unlawful act is not dependent upon a state of emotion which has either motivated the act. He added:

“[H]urt or offence may be the product of a benevolent intent and may incite negative attitudes to the victim which fall short of enmity. The section refers to the reason for the act being done as simply “race, colour or national or ethnic origin”.” [206] [emphasis added]

Therefore, assuming that Karl Stefanovic’s joke was made with benevolent intent, it can still cross the line. This is because the victim’s emotions matter, not his.

To satisfy section 18C, the victim only need feel offence (taking the least egregious impact required). If the comment hurts or irritates the feelings of another person, then that is enough.

Did that happen here? It certainly appears so.

One of the comment’s recipients gave back as good as he got with this zinger:

“I’m not sure about who’s going to be manning 7-Elevens but you might have to look at Centrelink as well I think Karl.”

That sounds like an irritated (but humorous) man to me.

Reaction also came from an amusing but pointed article in the Sydney Morning Herald called “Note to Karl Stefanovic, Indians do more than work at 7-Eleven”.

Mamamia also went to town, using the language of “casual racism” to describe the character of his remark.

There is a Get Out of Jail Card

Actually, there are two. The first concerns 18C itself. The second can be found in the 18D defence.

18C not intended for trivial behavior

Justice Bromberg said that the conduct needed to have profound and serious effects, not “mere slights” (at [268]). So far so good.

However, the preceding paragraph clouds what this means. True it is, Justice Bromberg did say that, in his view, “offend, insult, humiliate or intimidate” should be accompanied by some public consequence. However, then he said: “That public consequence need not be significant. It may be slight”. Followed by: “[C]onduct which invades or harms the dignity of an individual or group, involves a public mischief in the context of an Act which seeks to promote social cohesion”.

Ought not sledging the Indian population satisfy this “slight” requirement?

Section 18D defence

It is worth reading section 18D in its entirety, see here.

From an initial glance, the 18D defence seems intended for academics earnestly discussing racism, rather than for the audience of The Today show having a hearty ‘Un-PC’ laugh before they head off to work.

It is possible (but by no means inevitable) that Karl Stefanovic’s remark would pass through the section 18D filter on the basis that:

  • he has made a comment reasonably and in good faith for a genuine purpose in the public interest; or

‘Public interest’ is a loaded term for lawyers. Often, it does not mean ‘interesting’ but means that the public ‘needs to know’. This does not seem like a ‘need to know’ occasion.

  • he has made a fair comment on any event of public interest which was based on a genuine belief.

 ‘Fair comment’ is a term of art in defamation law. If applied here, the underlying facts need to be true. Does this mean that an inquiry into the demographic make-up of owners and employees at 7-Eleven stores across Australia would be required?

Mea Culpas and Care Factor

Karl Stefanovic’s mea culpas continue. There was an apology which gained a mixed reaction (which is kind of putting it nicely):

And then there was a tweet which has done considerably better.

So, should people care about these sorts of remarks? If in France, the answer is likely “Mais NON!” As Charlie Hebdo has taught us, race is a topic to be pilloried in France’s rich history of satire. For my previous blog post of how Charlie Hebdo’s content would fare under section 18C, see here.

For Australians, we have to care because it could be unlawful otherwise. However, there is a policy goal behind the Racial Discrimination Act worth thinking about. Bromberg J explained it this way:

The attribution of negative characteristics will often, although not invariably, involve the use of stereotyping.  As Kleg states in Hate Prejudice and Racism (State University of New York Press, Albany, 1993) at 155:


The effects of stereotyping lie at the base of prejudice. Stereotypic beliefs form the rationale for feelings of disdain and disparagement. When tied to prejudiced attitudes, stereotypes help create a number of behaviors ranging from avoidance to violence. 


Ascribing negative traits to people by reason of their group membership disseminates the idea that members of the group are not worthy or less worthy and are thus deserving of disdain and unequal treatment.” [at 215f]

I plugged ‘Indians’ and ‘7-Eleven’ into Google, and I didn’t like the results.

This complaint from a One Nation candidate for the seat of Ashgrove in 2012 is a case in point:

“Ninety-five per cent of those 7-11 stores are now run by Indian families,” he told the Nine Network yesterday. “Now what’s happened to the Australians that man those, that have those leases?

I might have laughed initially at the 7-Eleven joke. However, I am not laughing now.

 

 

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