Civil Disobedience vs. Section 18C

Fundamental philosophical questions about the nature of our political system and the rights and obligations of citizens are raised by the decision by the federal government under Tony Abbott to abandon its pre-election promise to repeal or reform the excessive restrictions on free speech imposed by section 18C of the Racial Discrimination Act.

It would appear that the conditions now exist where a campaign of civil disobedience is required to force the legislative changes necessary to restore free speech and the viability of liberal democracy in Australia, as I will now argue.

Ours is a liberal democratic political system (however imperfect) and it is a foundational premise of such a system that very high levels of free speech must be guaranteed for two reasons: (1) Free speech is a natural human right; and (2) free speech is required if a liberal democratic system (with all its benefits) is to function properly. Given the Abbott government’s decision it now appears that this condition no longer exists and these requirements can no longer be met. This clearly endangers our rights and our political system and, consequently, citizens have an obligation to engage in civil disobedience in order to protest against the existence of this offending law.

They can do so by clicking on the link below, filling in the blanks and sending the completed document to the Prime Minister.

Prosecute me, Mr. Abbott, I dare you.

There are many concrete ways in which this law endangers our rights and our political system, two of which will be mentioned here. Firstly, as the Andrew Bolt case illustrated, section 18C of the RDA is used by members of special interest groups to prohibit the expression of opinion about their activities, and to protect themselves from legitimate scrutiny and oversight of the state funding and benefits they receive. This debauches the entire system, directs benefits to people who are not entitled to them, denies them to others, and increases the disaffection of the mainstream society with such groups.

Secondly, 18C has been retained, according to the Prime Minister, in order to placate the Muslim community, the leadership of which has indicated that it has little or no respect for freedom of speech and wants the state to have the power and inclination to suppress the expression of any opinion with which Muslims disagree. Not only does this place the alleged interests of a very small minority above the interests of the majority, it also helps to protect criminal and terrorist elements within the community from detection and apprehension. Ironically, Muslim community leaders responded to the Prime Minister’s abject prostration by denouncing the government’s attempts to strengthen anti-terrorism laws and saying they would refuse to cooperate in combating Islamist extremism.

Civil disobedience became a widespread form of political activity in the 1960s, principally to protest against the Vietnam War, conscription, apartheid and racial inequality. It was very successful and changed the way in which the state and the police regarded political protests. Because of the nature of these issues it was identified with causes championed by the political left. However, there is no proprietary link between leftist policies and civil disobedience, as can be seen from the more recent emergence of organizations on the political right that engage in civil disobedience, for example, the pro-life movement.

In the 1960s political philosophers developed definitions of civil disobedience and arguments in support of it. One of the most influential was that offered by John Rawls, author of A Theory of Justice (1971). According to Rawls, civil disobedience is a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies. Crucially, it is undertaken by people who recognize the general legitimacy of the rule of law and who are willing to accept the legal consequences of their actions. Since then the conception has undergone various developments and mutations. For example, protesters increasingly refuse to acknowledge the second component concerning the rule of law, and some (emboldened by the excessive indulgence of the state) have come to advocate the use of limited forms of violence, as is now widely practiced by the left. (Such violence is not advocated here.)

Crucially, persuasive arguments have been propounded that insist that citizens have a right to engage in civil disobedience, and that this arises where the liberal democratic system has been so damaged that it denies them (or threatens to deny them) adequate access to the decision-making that affects their lives (e.g., it threatens to remove their rights, including this one). This right also arises where the viability of the liberal democratic system itself has been placed in danger. A further step in this argument involves the insistence that, in the latter case, citizens not only have a right but a responsibility to engage in civil disobedience. (This is a view put forward here.)

Some other theorists insist that this right to engage in civil disobedience can only be exercised in illiberal regimes where basic rights to political participation are limited, excessively regulated, or non-existent. In such circumstances an over-riding moral right emerges. For example, as Joseph Raz argues in The Authority of Law (1979):

Given that the illiberal state violates its members’ right to political participation, individuals whose rights are violated are entitled … to disregard the offending laws and exercise their moral right as if it were recognized by law… Members of the illiberal state do have a right to civil disobedience which is roughly that part of their moral right to political participation which is not recognized in law [by the illiberal state].

In accordance with this line of argument, the right to engage in civil disobedience in connection with the RDA may not have existed prior to the Abbott government’s announcement, as it was not yet an illiberal regime. This is because there still existed the prospect (and promise) that the government would act in accordance with its pre-election commitment and repeal or reform the offending law, thus ensuring that people had an appropriate opportunity effectively to participate in the political process through the free exchange of information and opinions.

However, this is not now the case. The right to exercise such freedom now no longer exists, and it is clear that we now live in an illiberal regime under which essential rights are not protected, and therefore citizens now have the moral right (and responsibility) to engage in civil disobedience to force the necessary repeal.

Abbott pledges to repeal 18C in August, 2012. But that was then

What form should such protest action take? Specifically intellectual civil disobedience is advocated here because of the nature of the right that has been taken away. Physical protest is neither appropriate nor envisaged. At the very least, an appropriate campaign would involve the deliberate and pre-publicized expression of opinions and disclosure of information that the relevant special interest groups have alleged would or might offend them. Ideally, these opinions should be ones that would be accepted by most ordinary Australians as reasonable (e.g., many terrorists are highly vocal Muslims); and the information disclosed should be factual (e.g., about the ineffectiveness of many programs for disadvantaged indigenous people and the channeling of scarce funding to white bureaucrats and urban professionals and academics). The causing of offense so achieved should then be followed by a refusal to acknowledge the role played by the Human Rights Commission, the courts, or any other state apparatus, as they attempt to act on behalf of the offended groups.

History shows that such campaigns can be very effective and can achieve a significant turn-around in public opinion and force government action. In this case it can be expected that this will happen quite quickly as the mainstream of the Australian population is already sensitized to the issues of principle that are involved.

As with other forms of civil disobedience, the objective of this campaign would be to achieve the maximum possible amount of publicity over the issue, and to provoke the most extreme possible over-reaction by the offended groups and by the state (short of gross physical harm and death). It would need to be internet-based in order that the information and opinions expressed could be effectively and repeatedly broadcast and it would have to be designed in such a manner that it would be difficult for the state or other parties to interdict its operations. The campaign would need to be supported by financial donations and by technical staff, lawyers and other professionals willing to offer assistance. A large number of protestors would be required to give it the greatest possible chance of success and it may prove necessary to establish an underground. It would appear advisable that those participating in such action divest themselves of all assets (to protect themselves from bankruptcy), and be prepared to suffer some level of physical violence and spend time in gaol.

Merv Bendle is a frequent contributor to Quadrant and Quadrant Online