From the Keating Government’s insertion of Part IIA (the home of s 18C) in the Commonwealth Racial Discrimination Act 1975 (RDAct) in 1994, the debate about s 18C has remained unchanged. Is the individual’s right to form, hold and express ideas and opinions regardless of subject matter central to what makes Australia a free and open society? More particularly, is that right only secure if the law promotes, rather than suppresses, the contest between ideas and if the individual is free to dissent and, quelle horreur, to do so in ways that are “divisive”?
The movers and shakers in the alliance of media, government, academic, business, professional, religious and other influential social forces fighting tooth and nail for retention of Section 18C have finely tuned puritanical urges. They know a really dangerous idea when they read about or hear one. For example, the interested reader will labour long and hard to find anything in the permanent online record of the semi-autonomous, publicly-funded Australian Human Rights Commission (AHRC) (or its predecessor in title or its State and Territory equivalents) which sings the praises of dissent as a value to be ranked at the forefront of Australian democracy.
On the contrary, the AHRC whose president and seven members are obliged by law to “act in a way that promotes the collegiate nature of the Commission”, has, in its attitude to the interpretation and administration of s 18C, become an agency which preaches an anti-democratic gospel of conformity, exemplified in the following pronouncement issued by the Race Discrimination Commissioner:
“Th[ere] is one frequent confusion about section 18C. It is concerned with acts that offend, insult, humiliate or intimidate because of someone’s race or ethnicity. This is a different thing to acts that merely offend or insult. There is a difference between someone insulting you or offending you because you support a certain football team or because of your political ideology. That’s because racial offence and racial insult can strike at the heart of a person’s being and their dignity, the part of their identity that comes from their background and ancestry.”
That diktat commenced the Commissioner’s response to the question, “Why should there be a law against merely offending or insulting someone?” which he posed in a speech entitled “The Challenge of Social Cohesion” given at the ANU on September 2, 2016. That speech should be read in conjunction with his speeches entitled “Populism, Race and Democracy” given in Sydney four days later and “Responding to Intolerance” given at the ANU on September 21, 2016. For those with the time and stamina to read them all, his other AHRC speeches and numerous media commentaries are usefully gathered on the AHRC web site and its social media adjuncts.
Folks with time on their hands can also consider perusing the Commissioner’s books, Reclaiming Patriotism: Nation-Building for Australian Progressives (2009), Don’t Go Back To Where You Came From: Why Multiculturalism Works (2012), and The Virtuous Citizen: Patriotism in a Multicultural Society (2012) which were published prior to his appointment to the AHRC (2013). His use of the terms “patriotism”, “nation-building”, and “virtuous citizen” call for some later consideration, but it is the Commissioner’s general “collegiate” approach to the AHRC’s statutory functions which is the starting point.
The Commissioner traverses the Commonwealth of Australia instructing the citizenry in the AHRC party line as to what, in matters racial, they are and are not permitted, first, to think and believe, and, secondly, to say in public. According to the Commissioner, there is no basis upon which a single citizen could honestly and reasonably contend that Part IIA of the RDA is an affront to the democratic value of individual freedom of speech. If any person dissents, she/he deserves to be ridiculed and labelled as prejudiced, bigoted or worse.
That the Commissioner’s diktat of September 2 was presented as an incontestable fact, rather than an opinion competing for public acceptance, had been exemplified one month earlier when he resorted to his AHRC Facebook page and Twitter account to urge indigenous Australians “offended” by Bill Leak’s cartoon to lodge 18C complaints with the AHRC.
How else could that adventurous collegiate exhortation in purported exercise of the AHRC’s limited statutory authority be explained other than by readers concluding that the Commissioner considered that Leak should be held to account and condemned because he had sinned grievously against 18C by linking parental neglect and juvenile delinquency in the Northern Territory indigenous community?
In his AHRC evangelising, the Commissioner regularly pays tribute to Australia’s long-peaceful democratic tradition. But reading his speeches it strikes this observer as something done as a reflex action, as if genuflecting when he passes in front of the high altar of the Temple of Diversity. Once in the pulpit, however, he sternly decries that tradition’s manifold defects which, according to his perfunctory account of the nation’s history, only began to be rectified with the onset four decades ago of Australian multiculturalism, that sublime value which is beyond questioning.
With acknowledgment to Philip Larkin, the Annus Mirabilis for the AHRC might be situated thus:
“Cultural diversity began
In nineteen seventy-seven
(which was rather late for thee – Australia)
Between the end of the White Australia policy
And the Cairo Declaration of the jolly old OIC
The Commissioner is an accomplished exponent of, and indefatigable warrior for, the ideology of censorship of so-called ‘hate speech’, a recondite concept replete with mind-numbing abstractions and lacking any coherent principles. His public statements are notable for resort to obscurantist theory, and a disinclination to articulate concrete principles for suppression of speech or, save for Leak’s cartoon, to identify real world examples of speech that should not have occurred. Added to those features are his tendency to generalise, stereotype and caricature, and the censor’s customary disdain for considering the specific arguments for maximising individual freedom of expression.
More specifically, the Commissioner resorts to the following wide ranging repertoire of sometimes overlapping specific rhetorical devices –
▪ Hyperbole/hysteria: repeal of s 18C is to be likened to taking the first step along the path to genocide.
▪ The elusive definition: What is the “racism” which the Commissioner is determined to extirpate? Even disregarding the AHRC’s wilful race/religion conflation fudge mentioned below, it is no easy task to discern how far racism extends beyond racial discrimination in employment and the provision of accommodation, goods and services and like matters of clear public interest, and occasional overt public expressions of racial prejudice. What precisely does he mean by the “extreme”, “more banal”, “insidious”, “covert”, “crude” and institutional http://www.abc.net.au/religion/articles/2016/04/08/4439686.htm “forms” of racism? It seems not to matter. The persistent posing of the questions What is “racism?” and “Is Australia a racist nation?” is an end in itself. It enables the AHRC to engage in an unrelenting hunt for conduct which is instantly recognizable by it and others in the know so that racist villainy, such as Leak’s, can be “called out”.
▪ Disseminating so-called hate speech to condemn that same speech. In alerting the indigenous citizenry to the complaints mechanism provided for in the Australian Human Rights Commission Act 1986 (the AHRC Act), the Commissioner reproduced the “offending” Bill Leak cartoon for dissemination to the whole world (it was still there in late October).
This intervention combined hypocrisy and a fouling of the ARHC’s nest regarding the proper impartial exercise of its decision-making responsibilities in considering complaints lodged under the AHRC Act, especially those based on alleged contraventions of s 18C.
But that should not be regarded as surprising. The architects of the AHRC Act made it an odds-on certainty that if, in the exercise of its limited functions, the AHRC resorted to missionary zeal in its promotion of s 18C, it risked creating a conflict with its complaints-handling function. The architects of the 1975 RD Act had seen no need to include a provision like s 18C. Nor was that in the least surprising since s 18C is not addressed at actual discrimination. In the space of two decades, the “hate speech” censorship fixation had taken hold and its proponents had revived the old oppressive law of “offensive” speech/conduct for the suppression of “politically incorrect” categories of ideas and opinions.
At a different level, controversy besets the prevailing “internationalist” orthodoxy of human rights protection. The AHRC Act’s definition of “human rights” is an expression of that orthodoxy which, in part, subordinates post-enlightenment emphasis on the rights of the individual to post-colonial era ideas of subordinated communities. One group of nations which has a central role in the UN and related human rights fora is determined to see the adoption of an international convention outlawing blasphemy. For these and other reasons, the whole question of human rights protection is a highly politically charged area of public administration and it has also produced the cultural cringe alluded to below.
▪ The Anglo-Celt fixation: The AHRC through the Commissioner harps on Australia’s bleak manifold Anglo-Celtic/European defects in what might be called the cultural diversity “space” or “site”. It teasingly abstains from condescending to supply the awful particulars. At a crude level, the defects have something to do with numbers/quotas of persons judged by their appearance and/or family names, but beyond that it is a lurking mystery. One unfathomable departure from or adherence to this refrain (take your pick), is the fact that the AHRC is on the public record https://www.humanrights.gov.au/sites/default/files/20140428_RDA_submission.pdf in its case for retention of s 18C as giving its nihil obstat to the “casual racism” of exchanging “Irish jokes”.
▪ Jeering and sneering at the vulgus: The AHRC’s propensity for snobbish lack of political nous and its cocooned view of the world has been seen in its criticism of “uneducated” politicians. It is also evident in that part of the Commissioner’s diktat asserting that an all-consuming passion for football could not possibly be the central reality of a person’s life. The AHRC, again through the collegiate exertions of the Commissioner, recently outdid itself in the J&S department in its group libel of the 17.5 million (know nothing) Britons who supported the Brexit vote. Will this slur ever be surpassed in publicly-financed “hate speech”?
▪ The first person plural: This is frequently used and, chiefly, as an appeal to the whole of the knowing world of multicultural pieties – acceptance, civility, cohesion, complexity, conversation, decency, dignity, diversity, empathy, harmony, identity, inclusion, marginalization, nuance, respect, safety, tolerance, vulnerability etc etc etc etc. That is a world which does not need precise definitions or illustrative examples of bad conduct. The AHRC persistently fails to make any allowance for the self-respect and fortitude which inheres in every human being and, in the case of religious believers, it infantilises and insults all believers by ignoring the unique self-sustaining strength of religious conviction in the face of bigotry and homicidal persecution.
▪ Bush lawyer error. Making some allowance for the fact that the Commissioner is not a lawyer, he repeatedly trots out the standard AHRC agitprop that s 18D of the RD Act protects free speech. For present purposes, it is enough to say that the claim reveals a profound populist misconception of the relevant law. In truth, s 18D strengthens s 18C by its restrictive adaptation of concepts taken from the law of defamation.
On more than one occasion, the Commissioner has been heard to ask, sarcastically, “what is it that opponents of s 18C want to say that they cannot already say?” This trope also bolsters the case for repeal of s 18C. There is simply no way of anyone knowing in advance whether what might be said in public could land them in front of the AHRC conciliators for some statutory re-education behind closed doors.
▪ The bogus conflation fudge. The Commissioner also regularly resorts to the standard AHRC conflation of race and religion. This spurious technique is central to the AHRC’s reckless determination to impose sectarian limitations on public debate about specific religious ideas, beliefs and practices. There is a subsidiary fudge. The sectarian supporters of s 18C also deny the following wise observation about another common sense distinction made by one of the Victorian Court of Appeal judges in the Catch the Fires Ministry case (2006):
“[T]here are any number of persons who may despise each other’s faiths and yet bear each other no ill will. I dare say, for example, that there would be a large number of people who would despise Pastor Scot’s perception of Christianity and yet not dream of hating him or be inclined to any of the other stipulated emotions.”
▪ Lurking insinuation. The Commissioner has characterised statements that there is a material distinction between race and religion as “a clever trick” and an “excuse” – meaning what, exactly?
▪ Sloganeering. Such as “An attack on any one faith is an attack on all faiths” and “Bigotry diminishes not only the lives of those who are on the receiving end. It diminishes us all”.
▪ Neo-cultural cringe. At a general level, this is embodied in the mantra “international human rights protection is sublime, domestic human rights protection is not to be mentioned in polite company”. It finds specific expression in the constant reminders that Australia lacks a Bill of Rights, the unstated premise being that no sane person could entertain a single doubt about the utility of such an instrument.
▪ Politicking. The whole world is the AHRC’s stage. In an overlap with the J&S treatment of the vulgus, the AHRC has, through the Commissioner, taken the Remain side in the Brexit controversy and has opposed Donald Trump’s US presidential campaign. How this official Australian busybody partisanship can be justified by reference to the AHRC’s statutory functions is anybody’s guess.
▪ “Pull the other leg!” There is the occasional bright side. In contending that, in the absence of s 18C, people will refrain from speaking out about racism and bigotry lest they be accused of being “politically correct”, the Commissioner demonstrates that he is not humourless.
▪ Behold! The AHRC Ten Year Plan. The Commissioner added to his status as an action man whose stamping ground is that of the sound-thinking pietistic multi-culti elites when, on July 29. 2016, the AHRC announced its Ten Year Plan – The Blueprint for Cultural Diversity and Inclusive Leadership. The Commissioner’s AHRC Facebook page includes a short video which transports the viewer into the future — July 29, 2026, to be precise. The viewer is informed that, by that anniversary which is beyond the expiry date of his present appointment, the Commissioner will be seen as having been one of the driving forces responsible for bringing about the population diversity and cultural change of Australia’s power structures necessary for the nation to be liberated from those (mysterious) crippling Anglo-Celtic/European defects.
Is the word “colossal” all that much of an exaggeration if an assessment is attempted of the magnitude of the superhero self-assurance which the Commissioner brings to the discharge of his functions?
Overlaying the addiction to “hate speech” censorship dogma evident in, first, the AHRC’s official desire to see Bill Leak put in the stocks (before being put to the metaphorical sword), secondly, its September 2 diktat and, thirdly, the Commissioner’s rhetorical versatility, he simultaneously manages to convey the strikingly contrary indicators of the kind found in the titles of his three books. Some renditions of the AHRC’s substantive position on s 18C and “identity” – that which he says resides in the heart of individual being and dignity – bespeak pragmatism and opportunism.
Notwithstanding his reliance on the diktat, the Commissioner accepts that “identity” has many facets. This is sensible. The reality is that many ordinary Australians could be heard to say, by way of retort to the diktat: “Why are race, background and ancestry so special, so legally privileged?” adding, for example, “Why not philately? Why not bridge? Why not home brewing or viticulture? Why not greyhound racing? Why not bargello or quilting?
Moreover, the Commissioner is on record as agreeing very specifically, as is the case in the real world, that religion, citizenship and nationality are major “identity” markers for Australians.
First, so firmly convinced is the Commissioner of the centrality of religion to individual being and dignity that, subject to its standard ritualistic resort to the ludicrous race/religion conflation fudge, in late 2015, the AHRC published the Commissioner’s report which recommended consideration of an amendment to beef up s 18C, in effect, by reviving the obsolescent law of blasphemy in order to make it unlawful to hurt the feelings of one particular group of believers not noted for accepting the idea that in a free and open society, no religious idea, belief or practice is beyond criticism and mockery.
Secondly, the Commissioner is to be commended for the praise he has heaped on the Australian citizenship pledge which is expressed in universal language free of the ever-expanding clusters of abstract multicultural pieties.
And, finally, when he used the words “race or ethnicity” to defend s 18C in his speech on September 2, 2016, the Commissioner was cherry-picking the statutory words, “race, colour or national or ethnic origin”. On behalf of the AHRC, the Commissioner gets agitated about “populism”, “xenophobia”, “aggressive nationalism” none of which is properly identified by reference to specific conduct which he regards as impermissible.
But, here again, that perplexing problem of terminological inexactitude can be put to one side because in his capacity as Commissioner he agrees about the centrality, for some folks, of national attachment and loyalty to individual identity.
In 2014, addressing a religious gathering, he put in a plug for his book-title concept, “virtuous patriotism”. The qualifier “virtuous” is, of course, to be expected from a preacher of the AHRC gospel. At another religious gathering in 2014, the Commissioner made a claim to something he called “moral solidarity” and made clear that he remains a big fan of that other book title concept, “multicultural patriotism”. However, neither qualifier suggests to this observer that he is making any concession to the vulgus or, more particularly, to the outcast Anglo-Celts.
The Commissioner has also evangelised to the effect that “[Australia’s] diversity is an indivisible part of our national identity.” Indivisible? On its face, this does not sit comfortably with the ranking of identity in his 2 September diktat regarding s18C.
Perhaps, in taking a dogmatic position on one occasion and then adjusting it for another occasion or audience, the Commissioner was going beyond merely having a good old-fashioned Australian (rhetorical) bet each way collegiately for the AHRC. Perhaps he was signifying an ironical postmodern dissent from himself. If so, it prompts the question: is his rhetorical journey/narrative approaching a stage where he can bring himself to introduce the word “dissent” explicitly into his public vocabulary of Australian democracy and human rights protection?
The AHRC could do the nation an enormous favour by expressly abandoning the ludicrous denialism of the conflation fudge, and by stating that in Australia the individual’s right to dissent is a fundamental human right. More specifically, it should make clear that there is as much of a right to criticise religious ideas, beliefs and practices (including, for example, to describe the very idea of religion as superstition, and to be an apostate) as there is a right to criticise political, economic, social or, indeed, any other ideas, beliefs and practices. The contest of ideas is not a handicap race. Every horse in that race has to rely solely on its own merits. If the AHRC is fair dinkum in its commitment to diversity, why not state its commitment to diversity of individual opinion?
If the AHRC cannot bring itself to do that unequivocally, one thing is certain: Its authoritarian ideology of censorship of so-called hate speech and its accompanying puritanical sermonising and relentless boasting about the moral superiority of its ideas on the human rights of individual Australians will — to borrow the time-honoured language of domestic Australian free speech law — be the subject of continuing well-deserved hatred, contempt and ridicule.
The author is a Melbourne barrister.