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July 09th 2014 print

Jeremy Sammut

18C and the Left’s Muzzling of Dissent

The reason Section 18C must be scrapped could not be more simple: politically-motivated lawfare makes the price of free speech far too high. The so-called right of others not to be offended restricts our freedom to fully and freely discuss subjects of national importance

Section 18C is about democratic rights

gagged speechSection 18C of the Racial Discrimination Act (RDA) was legislated by the Labor government led by Paul Keating in 1995, and makes it illegal to “insult, humiliate, offend or intimidate” a person on the basis of race. This is the law the newspaper columnist Andrew Bolt was ruled to have breached in 2011 when the Federal Court found him guilty of writing racially-vilifying articles about Aboriginal identity and entitlement.

The ensuing controversy about whether or not Section 18C should be repealed has encompassed a larger discussion about the allegedly racist character of Australian society. Supporters of the RDA maintain that Section 18C is a valuable means of combating the racism innate in the national character. Refuting the idea that Australian is a racist country is central to the case for repeal of Section 18C. However, the debate over the future of the RDA is about more than an accurate assessment of contemporary Australian social attitudes. Ultimately, it is a question of democracy: it is about the freedom Australians should have to discuss controversial issues and express dissenting views on race-related subjects such as Aboriginal identity and multiculturalism without facing legal action.

The Bolt case has touched off an extended discussion of freedom of expression in Australia. Much of the Section 18C debate has therefore focused on the principle of free speech, and rightly so. It is correct that in a free society, people should be free to say what they wish, because it is a dangerous business for the authorities to get involved in regulating speech. However, to bolster the Abbott government’s seemingly faltering plans to amend the RDA, the arguments for repeal of Section 18C need to be broadened beyond the individual right to free speech. It needs to be made clear that also at stake over Section 18C is the democratic right to collectively determine how we are governed through the free discourse of competing ideas. To appreciate how democracy is at risk, we need to review the origins and understand the intellectual and political circumstances surrounding the creation of Australia’s “hate speech” laws.

Remember the Nineties: the national identity debate and Australian “racism”

Since the 1960s, the humanities in Australian universities have been largely controlled by what is called the “new class” of politically-motivated academics. Forgoing the traditional academic values of disinterested pursuit of knowledge, members of the new class have pursued a political agenda obsessed with the question of power relations and how certain groups in society use power to oppress assorted victims along class, gender and racial lines. In the 1970s in Australia, the focus was on oppression of the working class. In the 1980s, the focus was on oppression of women. In the 1990s, the focus shifted to the oppression of racial minorities.

This account of the politicisation of the Australian academy over-simplifies. However, this chronology of dominant themes stands up to historical scrutiny, especially as the new-class thinking on race and Australian society reached a peak of influence during the period of the Keating government (1992 to 1996) and coincided not only with the legislating of the Section 18C hate speech laws, but also with what came to be termed the national identity debate.

This debate revolved around the proposition that as the nation reached the end of the first hundred years of nationhood, Australian national identity needed to be reinvented to overcome the odious aspects of our history. This reinvention principally encompassed the nation severing its traditional constitutional ties with Britain and becoming a republic suitably infused with multicultural values as a form of national penance for Australia’s racist past. The Keating government’s plan for a multicultural republic, in short, was new-class scholarship translated into a political project.

The nation’s heritage makes it hard initially to disagree with the new-class assessment of Australia as a racist country. The White Australia policy was the first legislation passed by the new federal parliament in 1901. Yet it was always odd for the new-class analysis to deny the passage of time and the evolution of national attitudes. The White Australia policy was effectively scrapped in the mid-1960s, and the development of a non-racially-discriminatory immigration policy, beginning in 1947 with the postwar mass migration program, had transformed Australia into perhaps the most successful multiracial society on earth.

I was studying Australian history at university as the national identity debate unfolded in the 1990s. Even to a callow undergraduate, it appeared that the new class was ignoring large chunks of our national history—and was doing so to make a political point that would advance their radical agenda of remaking the nation’s identity. It shocked me that the new class appeared to be strangers in their own country, as their indictment of the nation was obviously wrong to anyone who cared to have an honest look at the real qualities of contemporary Australian society. The tale told of persistent Australian racism did not tally with my own family and personal experiences of migration, intermarriage and integration (my paternal grandparents emigrated from Malta in the 1920s), and of the freedom of all comers to make the best of themselves without encountering race-based structural barriers.

Refuting the idea that Australia is a racist country is a topic I have periodically addressed as both a postgraduate student and as a think-tank researcher at the Centre for Independent Studies (CIS). This includes an article I wrote in Quadrant in December 2005, “The Long Demise of the White Australia Policy”, explaining how the transformation from White Australia to multiracial Australia occurred. The short version of my explanation for how the nation overcame its racially exclusory heritage is that as national attitudes evolved, the national ethos became colourblind and the fair-go ethos that rules most social relations in Australia was extended to all Australians, old and new, regardless of colour or creed.

This is the argument I have returned to in a number of articles I have written on Section 18C; it remains the substance of my retort to the claims made by the opponents of  repeal. Removing the hate speech provisions from the RDA will not unleash the racism supposedly latent in the Australian character because it is the national egalitarian culture, not the legislation restricting free speech, which is responsible for keeping the nation overwhelmingly tolerant and harmonious. Lifting restrictions on free speech will not expose the dark underbelly of Australian racism, since the nation had already developed the foundations of a tolerant national culture well before the RDA was legislated in 1975, let alone before Section 18C was added in 1995.

“That’s racist”: the political origins of hate speech laws in Britain and Australia

Understanding the true character of Australian society is a crucial aspect of the case for repeal of Section 18C. However, there is another dimension to the issue—the nature of politics and role of free discussion in a democratic society—that has not been adequately explored in the debate so far, with respect to the way hate speech laws stifle discussion of politically incorrect topics.

Australia’s Racial Discrimination Act was based on the British Race Relations Act of 1965. In Britain in the 1970s, the Race Relations Act was felt not to be working properly because the controversial Tory politician Enoch Powell could not be prosecuted for making speeches questioning the rationale for mass migration from the former colonies of the British Empire and for warning of the social problems and racial tensions that immigration had engendered in British society. Powell was unable to be prosecuted for allegedly stoking racist prejudices against “coloured” migrants because under the Race Relations Act it was necessary to prove intent to incite racial hatred. Intent was therefore removed as a requirement for prosecution for use of “threatening, abusive or insulting” language—a precedent and precursor to what would become Section 18C in Australia.

One of the arguments in favour of repeal of Section 18C is that language which incites racial violence will remain a crime in Australia under state and territory criminal statutes. This is dismissed by supporters of Section 18C because their objective, and the objective of hate speech laws in general, is not to preserve the peace so much, but to use the law (or “lawfare”, as it has come to be called) to achieve a political objective: to suppress dissent and reinforce the Left-progressive consensus about controversial political and social issues than prevails in academia, the media, and in much of the political class.

The British experience bears this out: the aim of amending the Race Relations Act was to shut down the discussion of the problems associated with immigration sparked by Powell by establishing a statutory mechanism that would brand as racists those who raised the subject. Note that the threat of potential legal action can be sufficient to deter discussion. Not only is this legal manoeuvre inherently opposed to free speech, it is also deeply anti-democratic, as it is based on the idea that some topics are unfit for public discussion and deliberation by the citizenry.

The progressive consensus that immigration and the closely related subject of multiculturalism should not be discussed extends to Australia and is also predicated on the belief that discussion will foster racism—or rather, will stir up the racism believed, wrongly, to be at the centre of the national character.

I disagree for the reasons explained. But we should also be wary of how the cause of anti-racism is exploited to shut down legitimate debate, given the need to discuss the topics of immigration and multiculturalism as openly as possible. Despite Australia’s success in the last sixty years, mass migration and multiracial societies remain a grand experiment—a virtually unprecedented experiment until the second half of the twentieth century. It is important to assess how the experiment is going periodically, to detect and address potential problems. Free discussion is important to instil public confidence and create support for immigration. If responsible people and politicians do not talk about these subjects, the danger is that irresponsible people will exploit community concerns. There are many examples in European countries that could be cited to prove these points, for example, the success of the National Front in France.

We don’t need to look overseas. During the period of the Keating government, attempts to discuss immigration and multiculturalism ran up hard against the progressive consensus: the reply by media, academic and political elites to those who dared raise these subjects, in the worse anti-free speech tradition, was, “You can’t talk about that because that’s racist”, with Section 18C the institutional expression of that sentiment. There was a community backlash against the shutting down of debate, in the form of the rise to political prominence of Pauline Hanson after the 1996 federal election.

The persecution of Andrew Bolt: Hanson redux?

The Hanson phenomenon shows that it is politically self-defeating and in fact dangerous to try to suppress free discussion. Nevertheless, this has happened again in the Andrew Bolt case.

Bolt’s offence was to question whether people who identified as Aboriginal, but who may not have experienced any discernible disadvantage, should be entitled to race-based assistance such as government educational support, preferment in public sector employment, and other usually arts-based scholarships. The basic question Bolt was asking was whether race or need should be the criterion for special assistance.

Bolt was sued under Section 18C by the people he named in his articles who said they felt offended, insulted and humiliated on the basis of their race. Was there more to this than the hurt feelings of these people? Was there a political agenda, designed to shut down debate about this subject, behind the decision to target Bolt for prosecution?

The reason I believe there was a political agenda is because of the role Andrew Bolt had played in the evolution of indigenous policy more than a decade ago. Lowitja O’Donoghue was the former head of the Aboriginal and Torres Strait Islander Commission (ATSIC)—the then peak indigenous organisation in Australia—and had claimed to be a member of the “stolen generation”. Andrew Bolt was the journalist who wrote the story that uncovered and forced O’Donoghue to admit that she had not been stolen by the authorities, but had been placed in a mission school by her father.

This was a pivotal moment in the history of indigenous affairs. The discrediting of the most prominent and respected indigenous leaders in the country helped set in train the series of events that eventually led the Howard government to abolish ATSIC. This marked a shift away from the separatist policies that had dominated indigenous affairs since the 1970s and towards the policies of mainstreaming Aboriginal communities, with a view towards full engagement with educational and employment opportunities—a policy shift most definitely signalled by the Howard government’s Northern Territory Emergency Intervention in 2007.

Andrew Bolt undoubtedly played an important part in setting the stage for the Howard government’s indigenous policy revolution, which overturned the progressive consensus in place since the 1970s. I do not think it is a coincidence, therefore, that a successful lawfare campaign was waged to silence Bolt and shut down discussion of Aboriginal identity and entitlement before it could get started.

This is a very dangerous strategy. According to the Australian census, increasing numbers of Australians are identifying as indigenous. I have been surprised in the last couple of months by people who can by no means be considered political animals, who have raised in conversation the topic of (to use their words) “white” people claiming Aboriginal identity to qualify for the associated benefits. Shutting down discussion of Aboriginal identity and entitlements (and, by extension of the Bolt case, labelling those who raise the subject as racists) has the potential to build community resentment. Suppressing debate could set the stage for the issue flaming into prominence in nasty and divisive ways, and in a similar fashion to the Hanson phenomenon. We should fear that the issue might explode if the proposal to hold a referendum to amend the Constitution to recognise Aboriginal Australians in the preamble is proceeded with, because the referendum campaign will concentrate the public mind on the question of who is an Aborigine and what benefits Aboriginality ought to entitle people to receive and why.

This is the reason hate speech laws that suppress legitimate debate and dissent are inherently bad for our society and for democracy. The only way democratic institutions acquire legitimacy is by channelling the mind of the public. The public mind is formed by free discussion of issues, as different interests compete to shape and define its collective meaning through the political process. Laws restricting free speech are therefore the antithesis of democracy, and they represent the end of politics in a free society. Restricting political debate is, remember, the objective of those who support laws like Section 18C. Section 18C should therefore be repealed because it is the means by which the progressive consensus that certain subjects should not be open for discussion becomes a political muzzle on those who wish to dissent.

Free to think but not speak: Aboriginal separatism and child protection

My thoughts on the subject of Section 18C have been deepened through experience, I’ve come to appreciate my job as a think-tanker, and the role organisations such as the CIS play in a democracy by helping shape the public mind on topics of national interest.

The great advantage of the CIS is that we are not part of a university and not dependent on government, as we receive no public funding. We are free and independent to be the great dissenter from the progressive consensus (and people are free to support us if they like what we say and do). But in the wake of the Bolt case, I wonder how free I actually am to do my job in the way I would like to do it.

I have been writing about child protection for the last six years. I argue that we need to make greater use of adoption to protect children. This is very controversial in the age of the national apologies for forced adoption and the stolen generations. It is fair to say that I have achieved some influence in this policy area. The New South Wales government’s recent child protection reform legislation, which aims to increase the number of children who are adopted from foster care, reflects the recommendations contained in my work.

The New South Wales adoption laws, however, make an exception for Aboriginal children—no Aboriginal child in New South Wales will be adopted for their own protection under the new legislation. This is largely due to the legacy of the “stolen generation”. This is understandable, given the sensitivities concerning removal of Aboriginal children from their families, but it is a question that deserves further analysis.

Aboriginal children are over-represented in the child protection system. Current practice is that children who need to be removed from their families are placed according to the Aboriginal Placement Principle—they are placed with a relative, with a member of their community, or with another Aboriginal carer. All these options go under the name of kinship care.

The logic is that kinship care, in theory, ensures Aboriginal children retain their Aboriginal identity by having contact with Aboriginal culture. However, we know little about kinship care—there is little research especially on the outcomes for children—and what we do know is that kinship care is not assessed and supported as well as foster care is. There are anecdotal and some official reports that kinship care leads to Aboriginal children being removed from dysfunctional families only to be placed in other dysfunctional families in the same communities.

The Aboriginal Placement Principle is a legacy not only of the “stolen generation”, but of the separatist agenda that dominated indigenous policy for so long. We ought to question this policy, particularly when Aboriginality—the right to identify and receive entitlements—is no longer based on continuous contact with Aboriginal culture. This was one of the key points made by those who were offended by Andrew Bolt’s articles, who argued that Aboriginal identity did not depend on contact with culture necessarily, or on being culturally Aboriginal in the traditional sense. It is therefore legitimate to question why we are sticking with a child protection policy predicated on the idea that Aboriginal children must have contact with culture via kinship care in order to retain their Aboriginal identity.

I am keen to research and publish on this topic. But I am uncertain about what can and can’t be said in the wake of the Bolt case: is the subject now legally taboo, and is it worth the trouble of running the potential legal gauntlet at the risk that someone might take offence? This is what critics of laws restricting free speech mean when they talk about the “silencing effect” of these laws. Considerations include the reputational risk of being branded a “racist” and the mud sticking no matter the final result in court. As the indigenous health researcher Dr Anthony Dillon recently wrote in the Australian, as a part-Aboriginal man he was unlikely to be sued for saying politically incorrect things about Aboriginal identity; however, a non-Aboriginal person expressing exactly the same views would be “highly likely” to face claims of racial hatred and be sued by an offended individual or group of individuals following the Andrew Bolt precedent.

Islamism and Australia: three concerns about multiculturalism

There is also the potential for hate speech laws to inhibit discussion of controversial issues related to multiculturalism.

The major concerns about multiculturalism tend to fall under three major headings. They are that multiculturalism is potentially divisive because it risks (1) importing foreign conflicts into Australia; (2) sectional interests subverting national policy; and (3) exemptions from the rule of law. There is a need to discuss these concerns about the course of multiculturalism in Australia right now.

In 2012, the nation witnessed the Sydney protest-cum-riot in Hyde Park, which was led by Islamic organisations and sparked by an anti-Islamic film in the United States that had allegedly led to the sack of the American consulate in Benghazi and the murder of the US Ambassador. This fulfils concern number one.

In his memoirs released earlier this year, former Foreign Minister Bob Carr explained that the former Prime Minister Julia Gillard was defeated in cabinet in 2012, and Australia abstained on the vote in the United Nations General Assembly, on the recognition of Palestine’s observer status at the UN, based on electoral concerns that the Labor Party would otherwise lose support among Muslim voters in key Labor seats in south-western Sydney. The cabinet decision overturned decades of bipartisan support for Israel. This fulfils concern number two.

In May this year, the ABC reported that Muslim community leaders had held a closed meeting with the New South Wales Deputy Police Commissioner Nick Kaldas, and had asked him not to enforce laws that prohibit Australian nationals from fighting in foreign conflicts, and not prosecute Muslims who leave Australia to fight in the civil war in Syria. Kaldas is expected to become the next New South Wales Police Commissioner. This fulfils concern number three.

Conclusion: the democratic deficit of lawfare

But is it permissible to discuss these issues under the RDA? In 1998, Tom Switzer, former opinion page editor at the Australian and current editor of Spectator Australia, was sued under the New South Wales Anti-Discrimination Act for racial vilification. His offence was to pen a newspaper column on the Israel–Palestine peace process which was critical of the Palestinians. This complaint was initially upheld, but was overturned on appeal. But the need to spend years in court and thousands of dollars on lawyers to exercise your right to free speech has a “demonstration effect” on others. Rather than court controversy, risk being labelled racist and face legal action, maybe it’s easier (and cheaper) to be silent.

This is the problem with Section 18C and why it should be abolished: the process is the punishment and politically-motivated lawfare makes the price of free speech far too high. I clearly have a professional stake in ensuring hate speech laws do not give rise to a democratic deficit in Australia—“no go” topics unfit for adults to debate in public. But the rights of every Australian citizen are at stake. The so-called right of others not to be offended restricts our democratic right to fully and freely discuss subjects of national importance.

Dr Jeremy Sammut is a research fellow at the Centre for Independent Studies. This is a revised version of a speech he gave at Warrane College at the University of New South Wales in May