Cowardice Wrapped in Incoherence

Let me start with this quote from Prime Minister Tony Abbott’s radio appearance on Melbourne’s 3AW this past week.  It’s on the subject of the government possibly rediscovering a backbone and at least putting a bill to the Senate to de-fang this country’s terrible Section 18C hate-speech laws, more especially in the light of recent worldwide events and attacks on free speech. Here is what Mr. Abbott said:

‘I would prefer that 18C were not in its current terms, but we made an attempt to amend it. It was obvious that attempt to amend it was generating a lot of division in the community.  The government made the decision not to proceed with it at this time and that remains the government’s position.’

Alas, the hoped for retreat was not forthcoming, as the Prime Minister explained that he and his government were not for turning (and excuse the reference there to a conservative British Prime Minister who actually had a backbone).  No, Mr. Abbott and the Coalition were going to stick with their craven, promise-breaking surrender.

Wow!  Where to start with that Prime Ministerial response?  Well, first off, note that virtually every legislative proposal or bill brought to Parliament will generate division in the community, and any important reform will generate a lot of division, not least from vested interests.  Did repeal of the carbon tax generate division?  You bet your life it did, and bear in mind that Labor is more or less going to go to the next election with some sort of re-worked and slightly watered-down version of it.  The division is widespread and ongoing.  So why didn’t Mr. Abbott throw in the towel on repeal of that?

Maybe it’s because he thought repeal was the right thing to do, that he’d made an election promise to do it, that the voters had their say and he heard them. And so he did as he had promised.

Tell me, Mr. Abbott, why one promised repeal proceeds because you took it to the election and won, and why the part of the community on the losing side in that instance had to take it on the chin from the majority of voters?  Yet another promised repeal went into the ‘too hard’ basket despite what is, without doubt, less community opposition, though perhaps as much or more from special interest,  lobby group opposition?  With Section 18C Mr Abbott and his government didn’t go straight to a bill of repeal after winning the last election.  They messed around, then went to some ridiculous community consultation that more or less guaranteed, as it always does, that vested interests, lobby groups, the free speech-loathing human rights brigades — and here I think of Get-Up, the ABC and Fairfax — and just about every group comprised of members who wouldn’t vote Coalition if their lives depended upon it, could organise in order to make it seem as though there was more community opposition than there was.  Tell me, how many reliable Coalition voters made a submission to that bogus exercise in consultation?  I’m a law professor and I long ago decided never, ever to make a submission to any of these things.  Believe me, they’re a joke!

But not enough of a joke for Mr. Abbott and his government to turn heel and walk away, selling out so very many of the people who voted for them.  Carbon tax repeal? Just do it!  Section 18C repeal? Fart around, then run away!

So that’s problem number one with the excuse for inaction presented by the Prime Minister on Melbourne’s Fairfax-owned radio station.  The idea that ‘division in the community’ is some sort of knock-out argument for not proceeding with legislation amounts to a blanket veto for any group opposed to anything, whatever the voters think.  It’s absurd.  At the end of the day, democracy is about letting the numbers count and the majority rule.  There is no good reform ever enacted, nor any needed one in today’s Australia, that will not ‘generate a lot of division in the community’.  Ask Mr. Hawke.  Ask Mr. Howard.  You might also have put the same question to Prime Minister Thatcher and President Reagan.  The list goes on ad infinitum.

But there’s a second problem with the Abbott excuse: he and his government did not really make much of an attempt to amend  Section 18C.  As noted above, Abbott led his party eagerly into the trap of asking for community submissions, which automatically lean left, as the Prime Minister well knows. The left long ago went gone weak at the knees over free speech, despite its a long and often wonderful history of defending free speech. But that was before the left side of politics became infected with the toxins of with ‘offence trumps speech’ activists.  So, instead of taking the election win for the mandate it was, the government prevaricated.  And then it lost its nerve altogether.

Let us be clear: to its shame, the Abbott government did not even introduce a bill into the Senate to gut Section 18C.  So when the Prime Minister says that his government made an ‘attempt to amend it’, you have to read that as a half-hearted, weak-kneed attempt that did not even involve putting a Bill to the Senate and making Labor and the Greens and a motley assortment of half-baked independents go on the record as voting against free speech.

So, really, there wasn’t an attempt to amend, not in any full-blooded sense. What Abbott & Co., did — or rather, didn’t do —  was akin to telling everyone they had written a best seller without ever having bothered to send their manuscript to a publisher.

Third and finally, notice how Abbott started his excuse — by claiming that he would prefer that  Section18C were not in its current terms.  Okay, great.  I believe him.  I’ve read what he had to say before the election and you can watch him making those promises, quite explicitly, in the video below.

Mr. Abbott gave every impression of having basic John Stuart Mill-style attachment to free speech.  Alas, apparently the Prime Minister’s preferences don’t get to prevail.  Why not?

Well, one reason is that perhaps the PM was overrun by pusillanimous Coalition MPs.  I actually believe that is quite likely.  Sure, the PM tells us this was his call.  But he would have to say that whether it was or wasn’t.  Do any readers believe Malcolm Turnbull wanted to proceed with amending Section 18C?  I sure don’t.  And listen to what a swathe of Coalition MPs was saying.  I spoke to two last year about Section 18C, and neither struck me as having a clue, not an iota of understanding, of the importance of free speech.  Who selects these people to be, you know, Liberal candidates?

Anyway, even if the preponderance of the Coalition caucus was against erasing Section 18C, and even if far too many Liberal MPs are ‘liberal’ in name only, Abbott could have laid down the law on this one — put a bill to the Senate and forced them to vote it down. He could have demanded that, but didn’t.  Can you imagine the response and political mileage the government could have been making right now, in the light of recent atrocities directed at free speech?  Abbott and the Coalition would have been in the media day after day, shoving Labor and the Greens’ opposition to free speech down their throats.  Instead, it’s hard to put a piece of paper between the Coalition’s position on free speech and Labor’s.  Okay, maybe a piece of paper — remember Julia Gillard’s jackbooted proposals to “regulate” the media and, if necessary, imprison recalcitrant editors? But certainly the difference between the two main parties’ positions is no thicker than a leaf of Tally Ho.

After what you’ve read so far you may think things can’t get worse.  Wrong!  In his radio interview the PM also said:  ‘I don’t believe that we are likely to see an Andrew Bolt problem again.  If we do, let’s re-think things.’   This was supposed to keep open to Coalition supporters the vague, distant possibility of a return to principle. One day, maybe, just maybe.

But here’s the thing.  I am probably the biggest Andrew Bolt supporter working in an Australian law school today. Actually, make that any faculty in any Australian university.  I spoke in his support at a special evening way back before his Mickey Mouse courtroom loss.  I think the judge got things wrong, and that the law shouldn’t have been there anyway.  So I take second place to no one in terms of castigating what happened to Bolt, given that Bolt himself occupies the top spot.

That said, I don’t support free speech just for the Andrew Bolts of this world.  I don’t support a great scope to say what you wish, but only if you belong to some elite group writing newspaper columns.  I support it for everyone.  So making another high profile, Bolt-type case the trigger for rethinking things is simply wrong-headed.  What about all the low-profile people liable to be minced by a speech–suppressing bureaucracy — folks who lack Bolt’s corporate resources and of whom the public never hears, and for whom the process itself is the punishment?  Does Mr. Abbott not care about their free speech?

Look, if the Prime Minister of Canada can repeal his nation’s equivalent of Section 18C after many, many years of speech-suppressing vested interests claiming the sky would fall – that repeal came more than a year ago, by the way, and the sky still hasn’t fallen – then there is no reason the Prime Minister of Australia can’t do likewise.  By the way, the Canadian PM did it, got the thing repealed, via a private member’s bill.  So bear that in mind, Mr. Abbott.

Anyway, this long-time supporter of Abbott, me, continues to find his abandonment of any and all principle surrounding free speech to be massively disappointing (and with all due respect to the politicos who should know better, to be a political error as well as an abandonment of principle).  My fingers are crossed that Mr. Abbott will ponder this issue, re-read all of his own words in favour of free speech from before the last election, and then admit his climb-down was a mistake.

At the very least, he should not fool himself that this issue is going away for the Coalition because so many of its voters and supporters still value free speech, even if few Greens and Labor voters do so.

James Allan, Garrick Professor of Law at the University of Queensland, is the author of Democracy in Decline