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'Team Australia' dumps free speech promise

By Laurence Maher - posted Monday, 17 November 2014


Just one little word

In the four months before Prime Minister Abbott announced in his "Team Australia" speech on 5 August 2014, that his government would not implement the promise he affirmed in the September 2013 election campaign to repeal s 18C of Commonwealth Racial Discrimination Act1975, most of the public commentators singing the praises of the s 18C censorship regime expressed the opinion that the repeal proposal was doomed, and that the turning point had occurred on 24 March 2014.

On that day, the Commonwealth Attorney-General, Queensland Senator George Brandis QC, answered the following question in the Senate, "Won't removing section 18C facilitate vilification by bigots?with the words, "People do have a right to be bigots, you know. In a free country, people do have rights to say things that other peoplefind offensive, insulting orbigoted."

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If the Attorney had said, "People do have a right to be dissenters, you know. In a free country, people do have rights to say things that other people find offensive, or insulting", the Abbot government's position could (and should) have been strengthened.

The Attorney's Senate answer - the renowned ABC Fact Check Unit to the contrary notwithstanding - was not "ill-informed", but his use of the "b"-word involved a mismatch of oratorical technique and political nous. The ensuing torrent of public indignation demonstrated the power which the contemporary left/progressive censorship movement exerts, via laws such as s 18C, on public debate.

Nevertheless, the pro-s 18C forces had a point. Repeal of s 18C was doomed. However, it was not because of the Attorney's matter-of-fact observation in the Senate. The infant proposal for repeal of s 18C had been asphyxiated at birth on 6 August 2012 when Opposition leader Abbott made his stirring pro-free speech address to the libertarian/free-marketInstitute of Public Affairs (IPA).

The s 18C controversy had flared in September 2011 when Justice Bromberg of the Federal Court of Australia delivered judgment in Eatock v Bolt upholding a s 18C claim brought by a group of fair-skinned Aboriginal Australians against the prominent newspaper and television commentator, Andrew Bolt, arising from publication of two articles in which Bolt entered the taboo territory of what it means to be an indigenous Australian.

Repeal of s 18C was always going to be an uphill battle. Were it to be accomplished, however, it would be the first legislative rejection of the political censorship imposed at State and Commonwealth levels commencing three decades ago under cover of the crusade to suppress selective categories of that impenetrably obscure postmodern abstraction, "hate speech". It was an odds-on certainty that the supporters of s 18C would strive mightily to defeat the repeal proposal.

 

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That said, repeal was far from being a hopeless cause. After all, why would any self-respecting political party shy away from a campaign designed to remind the citizenry that vigorous dissent, not suffocating conformity/uniformity, is a constitutive value of a free, open, and secular Australian society?

Moreover, repeal would bolster the major historic shift towards recognition of individual free speech as such a value which had occurred in 1992 when the High Court of Australia held that the Australian Constitution contains a limited implied freedom of communication concerning government and political matters.

Dissent

The only sure way of maximizing the prospects for repeal of s 18C was to conduct a relentless public campaign from the day of the IPA speech until and beyond the 2013 election.Abbott and Brandis should already have identified the main elements of such a campaign by the time Abbott made his promise.But, for all their high-minded jawing about free speech, neither Abbott nor Brandis appears to have given any consideration to formulating a persuasive public case for the repeal of s 18C. Instead, they sat on their hands.

A well-planned campaign in support of dissent would have forced the pro-s 18C alliance to confront the case against s 18C, namely, that when regard is had to the obscurantism of neo-Puritanical preaching about "hate speech", the confected notions of group psychic harm, the whingeing about the "silencing" effect of free speech, and, worst of all, the stereotyping of vulnerable minorities as being in need of special state protection against diversity of opinion, s 18C is a version of the age-old impulse to muzzle the expression of disagreeable opinions, in this case those about race and ethnicity and, necessarily, religion.

Ironically, the constant public parroting of the patronising pro-s 18C line that it protects entire "marginalised" minorities against "offensive, insulting, humiliating or intimidating" speech was refuted by the fact that auniquely powerful nationwide alliance was swiftly deployed to maintain the fuzzy ideological edifice of content-specific political censorship.

That alliance included the two national broadcasters, the Australian Human Rights Commission (AHRC) and state anti-discrimination agencies, State Governments, the Fairfax Media Group, the Australian Labor Party (ALP), The Greens, well-established religious, ethnic, national and local community organizations, leading academic lawyers, the organized legal profession, churches, the main civil liberties groups in the larger states, and many more, including elements within Abbott's own party.

More ironic still is the fact that the ALP had been at the forefront of the long struggle to dismantle Puritan literary and artistic censorship in the 1960s and in promoting the right to engage in divisive political dissent during the Vietnam War. Yet, within two decades, coinciding with the ALP's abandonment of its traditional struggle against the hard reality of economic inequality and exploitation, it had descended into the swamp of "diversity" and "identity" politics wherein it fell, hook line and sinker, for the neo-Puritan dogma of hate speech censorship.

By 1995, the ALP had established itself as the party of censorship in Australia when the Keating government sponsored the enactment of s 18C. The apogee of the flight away from individualdissenting free speech was reached when the State ALP government in Victoriasecured theenactment of legislation with the sanctimonious shorttitle, the Racial and Religious Tolerance Act 2001.

Bigotry here, bigotry there, bigotry bigotry everywhere

Between September 2013 and March 2014, the barrackers for retention of s 18C waged a very loud, co-ordinated campaign which was long on fear, hyperbole and obscurantism and devoid of any attempt to deal directly with the arguments for maximizing individual free speech.

By far the most ludicrous claim was that s 18C stands between the freedom of a "harmonious" and "cohesive" Australia and its destruction by "divisiveness". The most florid and wildly ahistorical articulation of this thesis was the claim by the AHRC Race Discrimination Commissioner that "genocide starts with words".

The prize for the most eccentric example of the claim that s 18C positively protects free speech would have to go to the AHRC for adherence to its view that "Irish jokes" exemplify something characterised as permissible "casual" racism.

 

Soon after Abbott became Prime Minister, media reports began appearing that an intensive behind-the-scenes lobbying campaign was underway to have the new government renege on its promise. That led to the government promptly caving in and deciding to amend rather than repeal s 18C. Then, instead of introducing the amending Bill in the parliament, on 25 March 2014 Brandis released a draft Bill for public comment. This was the equivalent of the condemned man extending an open invitation to his own public execution.

The Attorney's statement "promoting" bigotry gave the pro-s 18C alliance a huge propaganda boost. Australians were urged to deluge the public consultation process with submissions condemning the draft Bill. Lo and behold! More than 5,000 submissions were received, and a clear majority opposed the draft amendment.

The gloating of the pro-s 18C alliance - "the Australian people have now spoken" - was the predictable response to a one-sided, hysterical campaign in which the government effectively repudiated its commitment to the principle that the essence of genuine individual free speech is protection for the expression of opinions which the majority of people find offensive.

Then there was an all-pervasive irony in the fact that the s 18C cheer squad led by the AHRC have been, by their silence in recent years, content to condone violent public displays of fanatical ethno-politico-religious hatred occasionally laced with direct calls for dissenters to be put to death.

The pro-s 18C censorship alliance deals with this embarrassment to their cause of "inclusiveness" either by airily side-stepping it or by engaging in the most tortured sophistry to deny or greatly discount the root (religious) causes. One prominent ABC commentator outdid himself in the forelock-tugging deference department by asserting that recent media reporting of facts about murderous ethno-religious fanaticism beyond Australia's shores bespoke the Australian media's complicity in such ethno-religious terrorism.

Regrettably, in the context of post-2001 public policy on national security and ethno-religious inspired terrorism, the Abbott government's dumping of its pro-free speech promise is not all that surprising.

The bizarre postmodern obsession with not giving "offence" to minority ethno-religious beliefs, has facilitated a systematic weakening of Australia's status as a secular society contrary to the spirit of s116 of the Australian Constitution. That status is either ignored or sneered at whilst there have been steady and ongoing officially supported efforts to intrude religiosity into the machinery of Australian government.

Successive governments with the urging of the AHRC have acknowledged that there is a religious problem in Australia manifested in ethno-religious, rabble-rousing violence and the imprisonment of individuals for related terrorism offences. Sacks of taxpayers' money have been emptied in misguided direct participation in, or promotion of, activities entangling the Australian Commonwealth in matters of religious belief and practices (particularly, via the very enterprising "multifaith" movement) which should be of no concern whatsoever to it.

If a case could be made for government action beyond the routine enforcement of the general criminal law, all that should be required is an occasional straightforward public reminder that Australia is a secular society which has a long peaceful history of successive patterns of welcoming migrants, that trenchant criticism of religious beliefs and practices – and of the very concept of religion – is an integral democratic right, and that a basic requirement of citizenship or residence is an acceptance that violence will not be tolerated.

The future of s 18C

Perhaps, despite Justice Bromberg's decision and despite the Abbott's government's volte-face on repeal, s 18C has been dealt a death blow because of the ongoing free speech versus censorship controversy. It is at least arguable that the controversy has removed two taboos on vigorous public debate, as opposed to "respectful/inclusive conversation", the first concerning the welfare and the role in Australian society generally of those Australians who are descendants of the people who inhabited the continent before the arrival of the European colonizers, and the second concerning the nature and extent of the threat presented by domestic ethno-religious/politico-religious violence.

Or, perhaps s 18C will be revived. In October 2014, Senators Day (South Australia), Bernardi (South Australia), Leyonhjelm (New South Wales) and Smith (Western Australia) introduced a Bill which, if enacted, will omit the words "offend, insult" from s 18C(1)(a) of the RDA.

It is odd that erstwhile supporters of repeal of s 18C now consider that amending it will advance the cause of individual free speech. That which was formerly denounced as offensive and/or insulting would be denounced as humiliating and/or intimidating. The allocation of shades of meaning between the present four overlapping words will not alter the s 18C censorship regime. The AHRC, which has never been a protector of the individual right to dissent, can be expected to use it complaints resolution and related powers to attempt to suppress controversy of which it disapproves.

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About the Author

L W Maher is a Melbourne barrister with a special interest in defamation and other free speech-related disputes. He has written extensively on Australian Cold War legal history.

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