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Labor, discrimination laws and a space for speech

Janet Albrechtsen might have a point — Labor’s draft anti-discrimination laws are a worry. The battle has ideological tents camping in strange places, says Crikey’s man-at-large.

Nicola Roxon has been an industrial lawyer of some distinction, a shadow immigration minister, an MP of 15 years’ tenure, and latterly Australia’s first female Attorney-General. But none of that mattered much to Planet Janet Albrechtsen yesterday, who used her sinecure column in The Australian to deliver a great “don’t let the door bang your arse on the way out” on the occasion of Roxon’s departure.

Roxon, she noted, was going out on an epic fail — the failure to sell the full version of the new human rights and discrimination legislation, with its legal sanctions against speech likely to “insult” or “offend”, on the basis of close to 20 separate social categories, from race, through nationhood, to breastfeeding. The “racial vilification” section includes physical “race”: colour, ethnicity and nationhood; a mishmash of received categories if ever there was one.

The “insult” and “offence” provisions have been substantially removed — the wide remit of “racial vilification” remains. Albrechtsen took the first part of this as an historic win, and awarded points and prizes to the Right for their defence of “free speech”, berating the Left for its failure to take any interest in the issue. “People power” won it for free speech, she said, defeating the nefarious Roxon.

Much of this is bollocks of course, part of the Right’s fantasy projection of themselves as holding the line against the lowering of the jackboot. The legislation has manifold get-out clauses for the expression of insulting and offensive speech, and no one was marching in the street against it. Roxon appears to have reversed after being convinced by a range of elite groups, mostly lawyers, that the “insult and offence” provision would have become an unworkable mess of strategic, vexatious and plain mad court cases. Since the Andrew Bolt discrimination case, around the “insult and offence” provisions in section 18c of the Racial Discrimination Act, the Right has been trying to make a wider political cause of the matter.

But the worst of all this is, that, sigh, one is obliged to agree with Albrechtsen on this one. With the exception of your correspondent, and m’colleague Bernard Keane (a c-c-c-centrist) a couple of weeks ago, there has been no great objection to this broad extension of state power. The Greens supported the law, the far-left Marxist groups made no mention of it, and liberal-left advocates such as David Marr focused on the overly broad get-out clauses the legislation gave to vestigially religious organisations — such as hospitals and schools — on discrimination provisions. When the Bolt judgement came down, numerous Left commentators expressed their disquiet at the 18c provisions that allowed for the regulation of offensive speech, even when it was the systematic race-baiting fostered by the country’s largest private media organisation. The provisions in the revised law are simply a roll-over and expansion of the 18c provisions, yet there hasn’t been a peep.

This is an absurd position for the Left to be in. But it’s not hard to see how it’s come about. The Greens have inherited many currents of the social movements arising in the 1970s and ’80s — movements which became increasingly interested in using the law as a method for social change, as more grassroots social and political transformation failed to appear. The Marxist Left treats the notion of the “right to free speech” as a liberal myth, abstracted from all real power relations. And Marr and others appear to be so focused on campaigns for specific, and worthy, interest groups they will not break ranks with Labor.

But you don’t have to believe speech is ever fully free to believe it’s important there be a civic space in which robust debate and comment can take place, and that the state be absent from that sphere save for a few exceptional conditions. The speech provisions of the human rights law reversed this assumption. To suggest that insult and offence to 20-plus different categories of people might be actionable is to suggest that potential scrutiny of such speech, from that point of view, be the rule rather than the exception.

That is an undesirable state of affairs from any perspective, but it is a particularly mad one for the Left to support or adopt. The implicit assumptions of such a law come from the social liberal (ultimately the Right Hegelian) political stream, one which flowed into both social democracy and fascism alike. The state is taken as the expression of the social, and ultimately comes to substitute for it; issues which should be fought out through debate, conflict, social organisation, etc, are translated upwards into the legal realm, their character transformed. Offence and insult thus become a set of legal precedents.

Respect and dignity aren’t rights, they’re (moral) goods, and they can only be generalised through reciprocal recognition at a social level …”

Even if most social conflicts are not actually given such treatment, they all remain potentially liable to it, and that changes the relationship of citizens to the state. Indeed, its defenders such as Tim Soutphommasane argue dignity and respect are a right, to be provisioned by the state. That’s simply an expression of the sort of deadened liberalism that can see no way to talk about morality save through rights.

Respect and dignity aren’t rights, they’re (moral) goods, and they can only be generalised through reciprocal recognition at a social level, not through state enforcement. The latter process actually undermines them. If you don’t call someone a “nigger” because there’s a CCTV pointed at you feeding directly into the offices of Australian Human Rights Commission then no moment of dignity has occurred. The dignity comes from not calling someone such because you know it to be wrong.

One reason why there has been such a revival of outright racist, misogynist, homophobic humour over the last decade — often under the pretext of irony — is because the state has arrogated to itself the powers of moral conscience, an enforced super-ego. Society, to re-assert a sense of life, must then take the role of the id, saying all that is forbidden.

That Labor would adopt such laws was close to inevitable. The heritage of the arbitration system — a sort of Lady Bracknell* process, whereby you went on “strike” for a day, then 12 lawyers fought it out behind closed doors, and you were later informed whether you had “won” or not — has been transferred from class politics to cultural and identity politics. Such an act not only occurs as a “natural” response to the vulture lawyers’ picnic the party has become, but it also satisfies the multicultural peak bodies that round up their votes. Since Labor has now become a party devoted to unquestioned “growth” tied into an unquestioned trans-Pacific alliance, it does not have much use for measures that protect dissent.

But the Left does. For, if the root of your politics is the argument that inherited institutions and rights are not necessarily legitimate then, by definition, you support a form of civil society in which public speech is not under scrutiny by the very fact of it being public speech. The failure to observe this, and to argue vociferously for it, leaves one in a position of utter absurdity — the most recent being the Greens’ leadership supporting the legitimacy of civil disobedience in the form of pranks that wipe millions off a stock price, while simultaneously supporting a law that potentially makes it a legal matter to say “all Belgians are bastards”. That double act is utterly incoherent, and means a party can’t project social leadership because there is ultimately no principle from which their policies and actions spring. Instead, there’s simply an accumulated set of social and cultural interests, held together with a measure of obtuseness and cowardice.

That matters because the Left needs that open public sphere far more than the Right does — as became clear in 2001, when the Tampa crisis and 9/11 occurred within a week or so of each other. There wasn’t much dissent on the Right from the Howard government’s sudden gingering up of a sedition law. When another such crisis comes, and it will, one would want to be able to draw on an uncompromising commitment to robust speech and open debate, and not have to explain why it is OK to urge on civil disobedience, while illegal to air stupid or archaic opinions.

There’s a vital interest in strengthening and continuing that tradition, no matter how partial it may be, rather than weakening it. If nothing else, such a changed attitude would mean it wasn’t necessary to syzygy with Planet’s shuddering orbit, for goddsakes.

*”When you do become engaged to some one, I, or your father, should his health permit him, will inform you of the fact. An engagement should come on a young girl as a surprise, pleasant or unpleasant, as the case may be.” —  The Importance of Being Earnest

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  • 1
    N.A.F.
    Posted Wednesday, 6 February 2013 at 1:15 pm | Permalink

    Great article as always, Guy. Not sure I’m convinced though. Is the reductio ad absurdem of the dignity/CCTV part of this thesis that there should be no discrimination laws at all? How may speech and action be distinguished in this context?

  • 2
    Christopher Nagle
    Posted Wednesday, 6 February 2013 at 3:02 pm | Permalink

    This is a nicely reasoned argument. It has been tossed at a constituency that has turned taking ‘offence’ and moral high dudgeon into not just a political artform, but a substitute for genuine intellectual engagement; something this article actually achieves.

    I don’t like seeing people like Andrew Bolt being turned into right wing martyrs by silly laws.

  • 3
    Posted Wednesday, 6 February 2013 at 3:26 pm | Permalink

    Roxon did well with “fags” - a nanny-state provision for some - but with her gung-ho push for increased ASIO power, it’s easy to get jaded. Of course “The Right” loves giving spies more power - so “freedom” here is pretty inconsistent.

    Perhaps if ACMA and the Aus Press Council had more power to rein-in inflammatory language - from the likes of Bolt and Jones - we wouldn’t need these laws. Perish the thought we have a higher standard for widely disseminated media than the average bigot on the street.

  • 4
    Warren Joffe
    Posted Wednesday, 6 February 2013 at 3:39 pm | Permalink

    Yep, duties talk beats rights talk and it is surely the duty of a citizen to attempt to be a net taxpayer and not to whinge about local government philistinism or ocker insults. (Reply robustly but play the victim no).

    Of course speech which is intended or fairly obuviously likiely to run the risk of subjecting anyone (but especially the less powerful) to the kind of hatred or anger which can readily lead to physical harm or serious long lasting harm of any kind is a matter for community concern. (Still, before one allows that to lead to legal restraints, one has to recognise that catch-all definitions can easily go too far. Thus being branded vociferously as stupid so as to give up on education could be said to result in “serious long last harm” but hardly inspires one to support laws that give the resolution of such problems to judges, magistrates and other such worthies). So defining the duties of those, of various degrees of semi-literate ockerdom and even the kind of higher learning that some Nazi supporting professors enjoyed, who should refrain from damaging use of the privilege free speech is too difficult for legal purposes, at least criminal or quasi-criminal. Nothing wrong with community shaming or a stern word from the uncle/priest though even then one has to recognise that suppression of freedom of speech may occur by community pressure, including most often that of one’s occupational or religious peers, and that all that can be said about that is that it is better than using the heavy hammer of the law because one can, because some lot got the votes some time.

    Shane, GR, that your eloquence may help trim the legislation so that my 85 year old Uncle Bert (and I as his successor eventually) won’t have the pleasure of provoking test cases galore with totally unacceptable 1940s bush language (and contemporary adaptations for situations not then even thought of) until he can eventually win a gaol term for contempt and start a blog based on his fame. As for me, I am afraid that I won’t be bothered to attempt to humiliate and intimidate you for your political opinions if it will not get me before a worthy bench but only amuse you.

  • 5
    robert milne
    Posted Wednesday, 6 February 2013 at 4:11 pm | Permalink

    Excellent article Guy, you make a very valid point.
    more articles of this calibre please Crikey

  • 6
    Mike Smith
    Posted Wednesday, 6 February 2013 at 4:57 pm | Permalink

    Janet channeling Lady Bracknell, how delicious.

    Oh, and Janet? - “Some cause happiness wherever they go; others whenever they go.”

  • 7
    shepherdmarilyn
    Posted Wednesday, 6 February 2013 at 8:46 pm | Permalink

    It’s funny how the right and left of both major parties love trashing the law, the constitution and all human rights for some when it suits.

  • 8
    David Hand
    Posted Thursday, 7 February 2013 at 12:23 am | Permalink

    Guy,
    You say, “But the Left does (need measures that protect dissent). For, if the root of your politics is the argument that inherited institutions and rights are not necessarily legitimate then, by definition, you support a form of civil society in which public speech is not under scrutiny by the very fact of it being public speech.”

    You are circling towards the Bolt problem that the left has. Such was the glee at his humiliation by the court last year, lefties in general have chosen not to acknowledge the very real danger that 18c in the Racial Descrimination act has to our free society. Indeed, Roxon’s problem and subsequent backdown on speech that offends was most likely caused by this dubious element of the race act being spread across all forms of descrimination and its weakness sharply exposed.

    The left’s vitriolic hatred of Bolt has blinded it to the significant issues you discuss here.

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