30/03/2015

One of the jokes we published last month caused a reader to complain that we were racist.  Here's what happened.

In "Life’s Too Serious" in our February edition, we published the following joke:

“Paddy says "Mick, I'm thinking of buying a Labrador .."Don’t do it" says Mick "have you seen how many of their owners go blind?"

As a result we received the following email from a recipient of the newsletter:

"To the partners, I’m surprised a legal firm is indulging in racist jokes! I refer to your Irish joke, your 4th one liner, in "Life’s too Serious". As an Irish person I object to this and would appreciate if you removed it forthwith."

We were a little surprised, to say the least.  The joke was fairly gentle and there is even an argument that it is not an Irish joke at all – Ireland and the Irish people are not mentioned.  As well, Irish jokes are such a common part of the culture that we'd never really considered whether they could be 'racist' as such.

So we contacted the Human Rights Commission, the body charged with regulation of the Racial Discrimination Act and asked: "Is there a precedent for finding that an Irish joke is a material breach of the Racial Discrimination Act?"
 
After a few days we received the following email from the Commission.

"For your information, the racial hatred provisions in section 18C of the Racial Discrimination Act 1975 (Cth) (RDA) provide that it is against the law to do an act in public which:

-     is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate that person or group; and
-     is done because of the race, colour, or national or ethnic origin of that person or group of people.

The test of whether an act was 'reasonably likely to offend, insult, humiliate, or intimidate' another person is an objective one. In the case of Creek v Cairns Post Pty Ltd (2001), the Court determined that the act in question must have "profound and serious effects, not to be likened to mere slights". In Bryant v Queensland Newspapers Ltd [1997] Sir Ronald Wilson stated "the notion of hatred, although not used in 18C itself, suggests that the section allows a fair degree of journalistic licence, including the use of flamboyant or colloquial language". Sir Ronald stated that words could convey racial hatred if they were “plainly malicious or scurrilous, designed to foster hatred or antipathy in the reader."

Based on the Commission's advice it would appear that there is no precedent for finding that the publication of a so-called Irish joke constitutes a breach of the Racial Discrimination Act.

Rather, the advice from the Commission confirms two things of significance, namely that:

(a)    the test for the offence is an objective test, meaning that it is not relevant whether any particular person found the joke offensive, insulting, humiliating or intimidating, but whether the joke was offensive, insulting, humiliating or intimidating as measured by the societal norms of the day, and

(b)    the act must have a profound and serious effect, not just  be a mere slight.

In all the circumstances we do not believe that our publication of the joke was 'racist' or a breach of the Racial Discrimination Act.  Indeed, we discussed the complaint with a many of our friends and colleagues who have all expressed surprise at the complainant's reaction.  As one said, many of the best Irish jokes are told by the Irish.

But we don't doubt that the complainant was genuine in expressing the fact that he was offended and for that we apologise.  We did not want to offend anyone but simply sought to have a light-hearted moment.  

You can decide if we over-stepped the mark.

In the meantime we've amended the joke on our website so it is not so clearly identifiable with the Irish. It's a pretty funny comment no matter the nationality of the person who makes it.