18C’s Betrayal of Menzies Liberalism

In one of his great treatises on modern democracy, penned in the mid-1930s, Robert Menzies wrote that “without free minds and free spirits our boasted civic freedom becomes an empty shell”. With the flurry of public debate surrounding the primacy of free speech and the merits of legislation attacking racial intolerance, it is timely to explore how the subject of Section 18C of the Racial Discrimination Act would have sat with the tradition of Australian liberalism personified by Menzies.

There is a compelling liberal case for excising 18C from the existing legislation. Rather than representing merely a reaction to political correctness, much of the opposition to 18C is rooted in the liberal tradition of Menzies that repudiated racism while protecting the right of citizens to free speech and expression.

Based on his guiding philosophy and public pronouncements, Menzies would likely have opposed a law such as 18C on a number of grounds. First, he understood that racial prejudice was a disease of the human heart that no law could completely eradicate. Second, he believed that the cultural enrichment of the community through steady post-war immigration and the facilitation of cultural exchange, through schemes such as the Colombo Plan, were infinitely superior to legislation in overcoming the problem of racism. Third, he would have regarded the low threshold of 18C as an unwelcome encroachment on the free-speech principles espoused by liberal thinkers such as John Stuart Mill. Finally, he would see the dangers in a law that had the potential to be used to exploit racial and ethnic differences in the community.

Since its introduction by the Keating government in 1995, Section 18C has had a vexed history, including the recent Queensland University of Technology Case and the Bill Leak cartoon inquiry. The Australian Human Rights Commission having found a succession of politicians, journalists and cartoonists to have breached the law, 18C has attracted criticism for infringing the right to free speech. The principal criticism of 18C is that its terms “offend”, “insult” and “humiliate” are not only subjective, but too vague and too broad in their likely construction by judicial bodies. As legal experts have pointed out, the range of language that may offend, insult or even humiliate is far broader than language that is hateful. So the provision in its present form is deemed an encumbrance on free speech and expression. Many of these reservations about 18C were first voiced in parliament by Coalition MPs who voted against the introduction of the law two decades ago.

In November 1994, the Keating government introduced the Racial Hatred Bill to add Section 18C to the existing Racial Discrimination Act (1975). Under Section 18C:

It is unlawful for a person to do an act, otherwise than in private, if:

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.

Section 18D, however, provides defences to conduct that prima facie breaches 18C if it is done “reasonably and in good faith” for artistic, academic, scientific or other public interest purposes.

The Keating government’s introduction of 18C was precipitated by the Royal Commission into Aboriginal Deaths in Custody, the Australian Human Rights Commission’s National Inquiry into Racist Violence, and the Australian Law Reform Commission’s inquiry, “Multiculturalism and the Law”. However, none of these inquiries actually recommended a new law resembling 18C. Instead, they recommended that the law address racially based harassment, hostility and violence. The Attorney-General at the time, Michael Lavarch, insisted that the new law would place “no new limits on genuine public debate”. He assured parliament that it would not prohibit citizens “from expressing ideas or having beliefs” and would not apply to private conversations.

The Opposition, however, was not convinced by the guarantees of free speech that the new provision purported to offer, and opted unanimously to oppose the Racial Hatred Bill. The shadow attorney-general, Daryl Williams, had no objection to the government’s desire to curb racial intolerance and abuse but held that the proposed law in its present form was defective. The use of terms such as “offend” and “insult” were deemed too ambiguous, uncertain and obscure for parliamentary legislation of this nature. Williams warned that 18C could fall foul of constitutional guarantees such the implied freedom of political expression. He noted, for example, that commentary on government policy containing racist comments, whilst unlawful under 18C, was likely to be protected by this implied constitutional freedom, thereby giving rise to a potential conflict of laws. The main problem with 18C, according to the Opposition, was that it essentially targeted the freedom of speech and expression. Instead of rightly addressing racially motivated expressions of violent intent, the provision established a new crime of racially motivated expressions of opinion. To the Opposition, this distinction was important because free speech provided an important safety-valve for outrage. If the safety-valve of free expression was impaired by laws such as 18C, the likelihood of citizens resorting to more violent outlets of expression would be greater and do more to imperil racial harmony than any undesirable speech.

While acknowledging the important role of prudently drafted legislation to deal with the scourge of racism, the Opposition believed that the capacity for Australia’s communities to be welcoming and accommodating of new arrivals would achieve far more for the cause of racial tolerance than any new law such as 18C. The fact that Australia by the 1990s had emerged as one of the most diverse, tolerant and cohesive multicultural nations in the world was ample testimony to the open-mindedness and willingness of Australians to embrace immigrants from a variety of cultures. In little more than a generation, the transformation of Australia from a homogenous Anglo-Celtic society into a harmonious, multicultural society had been accomplished without the need for legislation against racial hatred.

The Opposition’s suspicion of the 1994 Racial Hatred Bill was rooted in a deep tradition of Australian liberal thought that sees not the state, but the people themselves, as the supreme guarantors of freedom and tolerance in society. This is especially the case with respect to the freedom of speech and expression, which is viewed as a matter of individual agency rather than a concession afforded to citizens by the state. As Chris Berg pointed out in In Defence of Freedom of Speech (2012), the right of an individual to hold views that may be contrary to those of the majority, or of those in positions of power, is regarded as quintessentially democratic. Since all citizens are equal, they all equally hold that right to free speech. According to the former Chief Justice of Australia, Sir Anthony Mason, it is the exercise of this freedom that allows the citizen to “criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives”. Given that the racial hatred law substantially fetters the ability of Australians to freely discuss political matters, particularly those relating to immigration and multiculturalism, Forrester, Finlay and Zimmerman in No Offence Intended (2016) conclude that 18C “is state intervention that ultimately enervates civil society”.

Importantly, the Australian liberal tradition sees individual citizens as not only the guardians of free speech but also as the standard-bearers of racial tolerance. Notwithstanding some modern examples of racial tension such as the 2005 Cronulla riots, the default ethos of Australia’s national character is egalitarian and colour-blind, where myriad ethnic communities harmoniously live cheek by jowl in Australia’s cities. Owing to Australia’s success in seamlessly absorbing successive waves of post-war immigrants from the British Isles, Eastern Europe, Southern Europe, the Middle East and Asia, the nation has largely been spared from the problems of segregation and race riots that have blighted comparable immigrant nations. Given the general disposition of the Australian community to racial tolerance, lingering pockets of prejudice in the community are more effectively dealt with by education attacking the root causes of racism than by blanket racial-hatred laws such as 18C.

Despite the long shadow cast by White Australia, the modern tradition of racial tolerance began to develop in Australia after the Second World War, when racial prejudice gradually gave way to a welcoming tolerance towards new immigrants. This was reflected in the Australian workplaces of the 1950s, where Anglo-Australians were willing to work alongside immigrants whom they deemed as equally worthy of a fair day’s pay for a fair day’s toil. Over the ensuing decades, the reception that immigrants had received engendered a lasting confidence that Australia could accept and absorb new people from a multiplicity of ethnicities. As Jeremy Sammut argued in The Long Demise of the White Australia Policy (2005), the successful transformation of Australia into a multicultural society owed far more to the egalitarian instincts of ordinary Australian citizens than to the policy prescriptions of multiculturalist bureaucrats, or “racial hatred laws” such as 18C. Thus, contrary to its defenders, 18C serves no real purpose as a “safety-cap” on the eruption of latent racism from the Australian body-politic, but rather as a muzzle on free public discussion and debate.

Like his successors in the Liberal Party, Sir Robert Menzies would have objected to 18C not on the grounds of its laudable objective to combat racism but on its inevitable effect of curtailing free speech. Menzies is on the record for his strong distaste of racial intolerance, and anti-Semitism in particular. While Menzies desired to maintain the British cultural flavour of Australian society, he told his audience at an election speech in 1949: “We denounce all attempts to create hostilities against any migrant or group of migrants, whether Jew or Gentile, on the grounds of race or religion.” He went on to affirm that “once received into our community, a new citizen is entitled to be treated in every way as a fellow Australian”. Confident of the capacity of the Australian people to welcome and embrace newcomers after the war, Menzies concluded that the strength and history of our nation has “been founded upon this vital principle”. Continuing this message of inclusion, Menzies told his listeners in a 1950 radio broadcast that “we should regard every migrant as our friend, and we should go to no end of trouble to make every migrant feel at home”.

Menzies understood that racist thought, like all other forms of hatred and prejudice, was essentially a corruption of the human spirit that no law could completely eradicate. A key tenet of Menzies’s legal philosophy was that a democracy such as Australia could not rely simply on the instrument of the law to codify every human thought and idea.

In a broadcast on “Constitutional Guarantees” in 1942 he warned that the modern-day proclivity to “put things into writing” ran counter to “the whole genius of our people”. He reminded his audience that “we don’t live under codified laws and we have always distrusted codified ideas. There is nothing truer than that ‘the letter killeth’.” As a good Presbyterian who knew his Bible, Menzies borrowed the phrase “the letter killeth” from 2 Corinthians 3:6, where the Apostle Paul wrote: “Who also hath made us able ministers of the new testament; not of the letter, but of the spirit: for the letter killeth, but the spirit giveth life.” Like Paul, Menzies appreciated that the key to reforming a person’s character, and the society in which they lived, lay in transforming the spirit of the human heart rather than in the enactment of new laws.

In this wartime broadcast, Menzies was specifically referring to the Curtin Labor government’s proposals to strengthen the “religious freedom guarantees” under Section 116 of the Australian Constitution and to introduce a new provision guaranteeing “freedom of speech and of the press”. While Menzies unequivocally affirmed these principles, he was not convinced that “a completely self-governing community should so distrust itself that it found it necessary to write into its own Constitution an admonition that it is not to make a law abridging the freedom of speech or of the press”. He told his audience that “the man who is, in fact, his own master will scarcely need to have on the wall a list drawn up by himself of things which he must not do”. Menzies held that the firmest and best guarantee against racial prejudice lay in the free spirit and tolerant hearts of the people. As he said in his 1942 broadcast, any visitor from another planet “seeking an examination of the character and habits of our people” would find it “not in Acts of Parliament or blue books or dusty records, but in the hearts of the people themselves”.

Menzies accordingly believed that the forging of community harmony and the facilitation of cultural exchange would be better than the instrument of the law in eradicating racial prejudice in the long term. To this end, he saw Australia’s post-war immigration program as critical to making what was then an insular society into a more open-minded and tolerant one enriched by the new cultures and experiences of immigrant arrivals. As Australia’s population began to diversify through the 1950s, Menzies applauded this new development. He told a Canberra Citizenship Convention in 1958:

We are having our culture enriched by the lively minds and the experiences and the lively imaginations of thousands of people whose cultural background is remote from our own. These are wonderful things, and on balance, I believe they have been doing great things for Australia.

To be sure, Menzies’s approach to Australia’s immigration program was conservative and gradualist. For reasons of social cohesion, he did not wish to radically alter the restrictive status quo, yet there was little doubt he believed a more liberal and accommodating policy would make Australia not only a more open and internationally-minded community but also a stronger nation. Addressing a 1961 Liberal Party rally, Menzies observed:

We have believed, and believe, that the flow of good people, with a variety of cultures and experiences and backgrounds into this country is giving to us a strength, a vigour, a variety of minds which we would never otherwise have acquired. We believe that a large movement of immigration into Australia is of the essence of national development.

Thus even years before multiculturalism was adopted as official government policy, Menzies appreciated the vitality that new people with new cultures brought to Australia. By strengthening and diversifying the social fabric, this would emerge as the most powerful and enduring antidote to racial prejudice.

In addition to increasing immigration, the Menzies government introduced the Colombo Plan in 1951 under which thousands of young students from Asia came to study at Australian universities. As well as laying the basis for Australian engagement with Asia, the scheme provided opportunities for Australians to enjoy educational and cultural exchanges with students from the Asia-Pacific region. Menzies evidently saw this as contributing to an Australia that would be even more tolerant and friendly to people from overseas backgrounds and cultures. Speaking in 1959 to an audience of university students in Jogjakarta, Indonesia, Menzies told them that substantial numbers of their fellow students had enjoyed their time in Australia. For the Australian Prime Minister, the positive experience of the Indonesian students was in no small part attributable to the warm and friendly reception they received from the Australian community.

As well as representing a relatively ineffectual tool to overcoming racism, the other defect of 18C that would have been apparent to Menzies was that its broad ambit represented an abridgement of free speech. While racist thoughts and opinions undeniably represented unsavoury forms of speech, a classically liberal approach held that it was preferable for these to be challenged and debated openly rather than shut down. If such obnoxious views were exposed to the rigor of public critique and rebuttal, they had a greater likelihood of being discredited and overturned than if they were repressed and forced to fester “underground”. The merit of subjecting speech to the “marketplace of ideas” was advocated by John Stuart Mill, who contended that free speech allowed individuals and society at large to interchange, test and confirm ideas. In his landmark 1942 address on the “Freedom of Speech and Expression”, Menzies quoted Mill with approval in his own robust defence of free speech. In particular, he quoted this passage from Mill’s 1859 essay On Liberty:

Complete liberty of contradicting and disproving our opinion is the very condition which justifies us in assuming its truth for purposes of action: and on no other terms can a being with human faculties have any rational assurance of being right.

For Menzies, the censorship of free speech with laws such as 18C would have the undesirable effect of stifling this critical process of testing opinion. Like Mill, his liberal forebear, Menzies believed that individuals had every right to confute their critics but no right to suppress their speech. In short, objectionable views needed to be censured rather than censored. In a civil society like Australia’s, the public enunciation of racist views would deservedly attract the opprobrium of the community without the need for racial hatred laws. As demonstrated by the Sterling case in the United States, where a basketball team owner made racially offensive comments, it was civil society and popular opinion which deemed the offender’s actions unacceptable rather than the state.

The other danger that Menzies would see in 18C would be its potential to create unnecessary division and confrontation between sections of the Australian community. According to its critics, 18C serves to reinforce the modern trend for citizens to identify with political movements primarily driven by interests of race, ethnicity or religion. In a column in the Australian on October 26, 2016, Paul Kelly warned that 18C is being used for a subversive purpose:

as a weapon of identity politics to silence, intimidate and shame people who do not subscribe to the intolerant ideology that seeks to advantage or condemn others purely arising from hurt feelings based on race, ethnicity, gender and sexuality.

Thus instead of serving to eliminate community tensions by clamping down on racially offensive and intimidating speech, Kelly saw 18C as having quite the opposite effect of inflaming these tensions by giving rise to a grievance culture.

Identity politics, by amplifying community divisions along the lines of race, gender, class and religion, would have been anathema to Menzies’s liberal vision and to his philosophy of governance. As a liberal, Menzies was committed to human rights as a universal concept applicable to all individuals. With an unshakable belief that governments existed to serve the interests of all, his distaste for the new identity politics would have matched his disdain for the old politics of sectional interest. As early as 1932, Menzies told a United Australia conference:

I protest, and will continue to protest, against this constant desire which exists in some quarters to sectionalise the community, to divide it up into this group and that group, and then to say, “What group are you barracking for?”

Having formed his political philosophy at a time when the scars of religious sectarianism and class conflict were still raw, Menzies was resolved to deliver government that would advance the good of the nation as a whole. As David Kemp acknowledged in Menzies: The Making of Modern Australia (2016):

Classes, races, religions, genders and political causes—the collectivities that dominated the political thought of many, and which were often accompanied by hatred of others—had no priority in his view over the rights, and the wellbeing, of each person.

Far from welcoming 18C as a progressive and enlightened law aimed at fostering racial harmony, Menzies would regard it as a retrograde measure serving to revive and stoke the kinds of community division his liberal approach to governance had sought to bury and forget.

Bringing the philosophical tradition of Menzies to bear on the question of 18C is important for not only the Liberal side of politics, but for all who have an interest in both protecting free speech and dealing effectively with the problem of racism. This was appreciated by the indigenous leader and former National President of the ALP, Warren Mundine, who said on October 30, 2016, that 18C “overstepped the line” and was contributing to the suppression of national debate on important subjects such as child abuse while entrenching racial division and fuelling social frustration. Similarly, the former Keating government minister Gary Johns concluded that 18C was “not compatible with representative and responsible government”. This was because the Australian people, from whom the parliament derived its sovereignty, “must be able to fully, frankly and robustly discuss controversial government and political matters, including those involving race, colour, ethnicity or nationality”. Johns pointed out that “such discussion may involve employing language that some (or even most) find offensive, insulting or even humiliating”. Also expressing unease about the recent application of the law, the former Labor Foreign Minister, Bob Carr, supported calls for a parliamentary committee to examine 18C.

As the supreme alternative to 18C, Australians from all sides of politics must continue to draw on the nation’s common law system and liberal democratic heritage to defend the right of individuals to speak their minds on matters involving race and ethnicity, while at the same time employing these same mechanisms to challenge racist speech where it arises. Our leaders would do well to emulate the proven success of Menzies, who promoted education, cultural exchange, immigration and an inclusive civic culture eschewing identity politics as effective remedies to the malady of racial intolerance.