To Stomp on 18C, First You Need a Spine

yellow stripeSome three months after the community consultation process commenced in April, 2014, it had begun to seem an  odds-on certainty that the draft Bill intended to water down Section 18C of the Racial Discrimination Act 1975 would be dumped in the legislative “too hard” tray. Yesterday, August 5, Prime Minister Tony Abbott made that capitulation official by formally declaring free speech was not one of his government’s priorities.

The loud shaming campaign launched by an alliance of forces opposed to so-called “hate speech” before the 2013 federal election led the Abbott government to throw in the towel. The vehemence of the opposition to amendment of 18C has been in inverse proportion to the opponents’ inclination to confront the principled arguments for repeal. Instead, we have seen a steady resort to abstract sloganeering about “hate speech”, vilification and assorted “phobias”, along with lashings of hyperbole of “the end of the world is nigh!” variety.

And yet there remains a ray of hope, a basis for believing that even though the draft bill has been discarded like an unwanted and embarrassing infant left outside in the middle of winter, the supporters of 18C will have achieved only a Pyrrhic victory for the cause of political censorship. By definition, widespread public debate about free speech advances the cause of free speech.

The 18C controversy has strengthened free speech and installed it as an ongoing and permanent topic of national debate. Meanwhile, the indignation generated by the barrackers for retention of 18C has succeeded in demonstrating just how grotesque it is, along with all its state and territory equivalents.

One positive consequence of the pro-s 18C crusade is that some specific and illuminating examples of a hitherto elusive and all-purpose abstraction that is “hate speech” have been provided. One elaboration is especially instructive because of its explicit repudiation of the old-fashioned idea that dissent is an integral feature of any society which claims to be free and open, and its exemplification of one of the inherent vices of all hate-speech censorship, namely the insulation of category-specific content from normal public debate. Moreover, it exposes the legal fiction of labelling the mere expression of ideas which another person or group regard as “offensive” as a form of invidious discrimination.

The prominent lawyer/author Randa Abdel-Fattah recently argued on an ABC website that  “Islamophobia” is displayed if it is suggested that (a) Islam is in need of reform, (b) if something disapproving is said about the wearing of the face veil, (c) if it is suggested that observing religious belief systems should not be at variance with obeying the law. She further argued that (d) there is “incongruity” in claims of a material distinction between hating a belief, or system of beliefs, while having nothing but goodwill for the believer. In Ms Abdel-Fattah’s opinion, all 1.3 billion followers of Islam are entitled to insist upon “respectful theological debate” of Islam. As described by her, such debate would, in effect, be confined within limits involving Islamic adherents’ specific conception of what constitutes blasphemy.

The possibility that a person may have no religious beliefs, or regard all religion as abysmal superstition, seems never to have penetrated Ms Abdel-Fattah’s thinking. Nor, it seems, is Section 116 of the Australian Constitution relevant to her misguided insistence that public discussion of religious beliefs and practices must conform with a creed’s refusal to tolerate dissent of any kind.

If, as seems clearly the case, Ms Abdel-Fattah is contending that no reasonable person could honestly express (and should not be permitted to express) views of the kind in her above-mentioned examples without simultaneously expressing respect for the religious beliefs themselves, then it seems to this observer that, putting aside its impenetrable vagueness, the word “Islamophobia” is being used to justify the imposition of restrictions on individual freedom of expression that are incompatible with the secular nature of Australia’s polity.

In 1943, at the height of World War II, Chief Justice Latham made this clear and  unimpeachable statement in the Adelaide Jehovah’s Witnesses case:

What is religion to one is superstition to another. Some religions are regarded as morally evil by adherents of other creeds. . . Section 116 [of the Australian Constitution] proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion.”

More than sixty years later, in the Catch the Fires Ministry case (2006), Justice Nettle of the Victorian Court of Appeal was equally clear in stating that there is no incongruity of the kind decried by Ms Abdel-Fattah:

there are any number of persons who may despise each other’s faiths and yet bear each other no ill will”.

For students of the various strands of social, political, and philosophical theorising which coalesce under the label of postmodernism – the same theories which supply the dense dogmatic framework for contemporary hate-speech censorship – there has been irony aplenty in the 18C stoush.

In its eagerness to emphasise what an outrage it was for Senator Brandis to have announced in the Senate in March, 2014, that “people do have a right to be bigots, you know. In a free country, people do have rights to say things that other people find offensive or insulting or bigoted”, the ABC gave the Attorney-General the ABC Fact Check Department treatment and, in adjudging him to be “ill-informed”, managed to demonstrate beyond all doubt that his statement was true, albeit offensive to his antagonists.

The Australian Human Rights Commission (AHRC) – hitherto noted for (a) its support for the concept of suppression of defamation of religions, and (b) its decades-long disregard of the role of dissent – has been at the forefront of the nationwide crusade against any change to 18C. But in leading the charge for “respect”, “dignity”, “inclusion”, and “diversity” (for all manner of things, except opinion), the AHRC has found itself having to pull out all stops because it now has a free-speech champion in its own ranks, Human Rights Commissioner Tim Wilson.

There is quite a lot at stake for the AHRC. As long as some form of 18C remains, it matters not to the AHRC that very few 18C cases ever get to court. Its chief utility, as the AHRC has been at pains to stress, is that 18C enables the AHRC to invoke its civil complaint process. It can deploy its conciliation authority and thereby subject wayward individuals to some bien pensant diversity re-education. And 18C supports a constant propaganda blitz by the AHRC and its surrogates against non-conforming speech  — subject now, however, to Mr Wilson’s libertarian dissents.

The doctrinal attachment to meaningless abstractions which underpins modern “hate speech” censorship makes use of contrasts between the powerful and the powerless, the dominant and the marginalised, the Western and “the other”, the vocal and privileged majorities and the allegedly silenced minorities, etc., etc., etc. This “poor, poor pitiful me” thinking is a manifestation of patronising political assumptions made about the supposed psychological deficiencies of entire social groups. Furthermore, the daily reality of contemporary Australia demonstrates just how insulting is this myth.

The scale and vehemence of the campaign for the retention of 18C reflects the fact that it is supported by the two national broadcasters, one major (but rapidly fading) media group, the AHRC, state anti-discrimination agencies, ad hoc alliances of community groups, prominent members of the academy and legal profession, civil liberties groups (irony of ironies), and many more.

So much for the inability of the “silenced” and the “marginalised” to have their say.

In as clear an illustration as could be imagined of the notion that a genuine commitment to free speech in an open society goes far beyond some respectful drawing-room conformity in the public discussion of controversies about race, ethnicity, nationality and religion, the Sydney Festival of Dangerous Ideas (FODI) this year invited Mr Uthman Badar, the Australian media representative of the Islamic political organization, Hizb–ut-Tahrir Australia, to propound his idea that, to quote the program, “Honour Killings are Morally Justified”. It then abjectly “dis-invited” him because of the ensuing outrage.

Mr Badar is an accomplished public contrarian who makes no secret of his detestation of secular Western ideas and values, such as free speech. The heavens had not fallen in the short time that Festival organisers and Mr Badar promoted his anticipated session. That FODI displayed no nous whatsoever in scheduling Mr Badar to give a solo presentation is beyond dispute, but the public interest in understanding why “honour killings” occur would have been served by Mr Badar’s exposition of, as he sees it, the moral dimension.

In the aftermath of the Festival’s decision to draw the censor’s curtain over its embarrassing guest, Mr Badar not surprisingly accused FODI of breaking its promise to him, tossing in for good measure the specious claim that he had been subjected to, yes, Islamophobia! It seems that Mr Badar is now so marginalised, so dis-empowered, that he is incapable of mustering the fortitude to post his “silenced” views on the moral justification of honour killings on the Hizb–ut-Tahrir website.

Putting it at its lowest, it was at least arguable that the title of his address, which Mr Badar had suggested to FODI, was manifestly a form of hate speech even if, like obscenity, hate speech is difficult to define. Opinions will differ, but reasonable people could conclude that, by contrast with Badar’s announced topic, what Andrew Bolt wrote about light-skinned, self-identifying Aborigines, which saw dragged into court under 18c, had an air of drawing-room gentility about it. Moreover, Mr Badar’s subject matter fell squarely within the wide interpretation of 18C embraced by the AHRC, embedded as it was in two intersecting speech-content categories: gender and religion. So far as the AHRC is concerned, those categories are inextricably bound with the explicitly protected categories.

The title proposed by Mr Badar was surely indicative of the kind of discourse which the AHRC is determined to suppress via 18C. It might therefore strike some readers as more than a little odd, that neither before nor after the axing of Mr Badar’s session did we hear a peep from the AHRC concerning the controversy – certainly not one that could be detected on its web site.

However, this is indicative of the great paralysing, anti-democratic contradiction at the centre of all “hate speech” censorship, with 18C at the apex: What to do when, as is inevitable, the interests of what, in the AHRC’s domain, is regarded as one poor, pitiful marginalised group are diametrically, even hatefully, opposed to those of another?

Which set of insulated ideas of what is misleadingly labelled “minority” speech  is to be preferred? The answer can only be derived by an unseemly arbitrary toss of the bureaucratic coin.


L. W. Maher is a Melbourne barrister.

One thought on “To Stomp on 18C, First You Need a Spine

  • denandsel@optusnet.com.au says:

    I would agree that the coalition has been spineless, even duplicitous. 18c did not help the children on the bus in Bondi [today Aug 7 2014], nor has it helped Max Bremer chocolate shops on the numerous times customers have been physically interfered with and harassed, nor did it help anybody subject to real racial vilification by a variety of leftist people such as Mike Carlton and others in numerous cases over the last few years.
    Even disregarding the free speech elements, 18c should be repealed because it has patently failed, that is unless its purpose was merely to stop conservative commentators questioning the need for ‘racial’ laws in the first place.

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