freediver wrote on Dec 13
th, 2016 at 2:59pm:
As Toben illustrates, you can be jailed if the HREOC escalates the matter to the federal court. Saying you cannot be jailed on the assumption you will agree to self censor in compliance with 18c does not meet the common sense test. Toben was jailed for denying the holocaust in contravention of 18c. 18c means you can now be jailed for exercising your fundamental human rights.
Do you support that Raven, or just offer idiotic excuses?
No it doesn't. You are either deliberately misinterpreting how the RDA works or you have no understanding of the law.
It is not a crime to breach 18c. The section says that it is unlawful for a person to do what is set out.
In law the term unlawful does not mean criminal, So while unlawful acts are prohibited by law, they are not a criminal offence under section 18C, which is in Part IIA of the Act. There is no offence under Part IIA of the RDA. There are no criminal sanctions attached to the conduct the Act is targeting. Nothing in the Act makes any form of vilification a criminal offence.
Section 26, which is in Part IV of the Act, says
Quote:Except as expressly provided by this Part, nothing in this Act makes it an offence to do an act or agree with another person to do an act that is unlawful by reason of a provision of Part II or Part IIA.
Unlawful conduct is not illegal conduct. 'Unlawful' is conduct prohibited by law, an 'offence' is also conduct prohibited by law but at a more serious or higher level. There is a fundamental procedural difference – unlawful acts are pursued by the person or entity who is aggrieved, and illegal acts are pursued by the police in order to punish the perpetrator.
18C creates a form of civil liability Section 26 makes it clear that offending someone under section 18C is not a criminal offence.
Take Andrew Bolt, Bolt breached the Act but did not commit a crime.
Your friend Toben on the other hand did commit a crime but not by denying the Holocaust. Justice Branson ordered him to remove the material, he refused. Justice Lander said that Toben's behaviour amounted to criminal contempt.
Toben's original conduct, which contravened the Act itself, was not criminal.
Good explanation. I understand now that I was wrong to label a breach of the RDA as "criminal". Thanks for clarifying.