Steve Bannon

Credit where it’s due. The right set out to make 18C/18D/18E a live issue, and they’ve succeeded. Last time around, when Bolt vs Eatock was the rallying issue, it wasn’t. No one in the mainstream cared much, and the multicultural peak bodies, and many others, rallied in favour of it. Then-prime minister Tony Abbott wisely, and also pusillanimously, let it go.

Then, a gift! The Queensland University of Technology case. We don’t know the full truth of this case — the reporting has been done by an alt-right fake news website called News Corporation Australia — but there’s no doubt that it exposed one problem of such tribunal-based law, the tendency to grind on and on, making the process itself a punishment. Then, another gift! A challenge to another cartoon by Bill Leak, from someone in Germany with enough hipster photos on their Facebook page to fuel a dozen stories. And a third gift, the failure of the Australian Human Rights Commission to demonstrate that the law was workable, by knocking the case out immediately, on multiple grounds, as it has the option to do. Maybe there’s some procedural reason for this too — in which case the process needs changing — but it looks an awful lot like progressivist institutional arrogance, and a lack of political nous.

[The Oz has literally written more about the ‘thought police’ than George Orwell did]

Now we have another inquiry into 18C, and everyone will be marched up the hill again — and possibly back down again. Whatever chance there was to change 18C, Donald Trump just made it a little more difficult.

Donald Trump? How so? Well, Trump just made Steve Bannon of Breitbart the most senior adviser in the White House. Bretibart.com and Bannon himself are unashamed white ethno-nationalist, and Bannon is widely reported to be an anti-Semite. So much so that the Jewish Anti-Defamation League broke its cozy relationship with the right to denounce the appointment.

Suddenly, Jewish and Zionist peak bodies in the West are having to acknowledge something they’ve avoided for too long — actual, right-wing, obsessive, potentially violent anti-Semitism is back. Zionists have spent years crying wolf with the term, using it as a sleazy slur against anyone who stands up for the Palestinians. They wore it out, deprived it of its force, and now the real thing is there, very close to the White House (Breitbart, it should be said, is pro-Zionist, and has extensive Israeli ties. If you think there’s a contradiction between being pro-Israel and anti-Semitic — against the “rootless cosmopolitan” Jews of the diaspora — think again).

The Jewish-Australian peak bodies came out against changes to 18C last time, and that stance was reaffirmed by articles by Colin Rubenstein in The Australian, in which he adopted the same statist, soft-authoritarian position as other multicultural groups (and the cultural “left”): that abusive, racist speech is not an opinion, but an act, similar to “shouting ‘fire’ in a crowded theatre”.* When the QUT case was thrown out (in part), it appeared the Jewish peak bodies might be softening in their opposition.

With the Trumptriumph, and the rockcrawlers he’s invited into the White House, I bet it’s just hardened again. Any doubts they had would be further assayed by the conga-line of suckholes dancing their way up to kiss the Donald’s orange ring. Maybe they, too, will lose their nerve, but I doubt it. Without 18C, the only laws that stop someone standing outside a synagogue on Saturday morning with a placard reading “Belsen Was a Gas” are municipal ordinances without real teeth. If you want to build a coalition to address its vastly exaggerated effect on the free exchange of ideas, you better design a replacement that allows for those sort of outrages to be addressed, with real legal force.

The right would like to present 18C as progressivist overreach. By now, with the way its process is conducted, it may have become so — in exactly the manner of progressivist arrogance that I’ve spoken of in the past days.

[Rundle: the liberal centre that destroyed the world]

But at its root, the core form of the law is Burkean conservatism, a judicious and prudent restraint on individual behaviour that reflects the given character of our society, i.e. its multiculturalism. What people want from it is not culture war, but its opposite — the true freedom of being able to pursue life and happiness through private activity, with the knowledge that society is on your side in doing so. That means that the indigenous teacher has a comeback if she gets racially abused and refused service when she goes into a roadhouse to get a can of Fanta; the Vietnamese-Australian lawyer doesn’t have to deal, alone, with being sledged as a “slaphead” by a car park attendant; the Syrian-Australian cafe owner in Auburn, abused by a council officer who won’t grant a planning permit for an outside table to a “raghead terrorist”; or anyone, anywhere, who simply wants to go about their business as a citizen. At its best, 18C is a sanction against certain acts and creates the virtuous and non-warred public space that the classical liberals claim that they seek. The open-slather model proposed by Leyonhjelm is a model of citizenship as social war. It’s a point of view, but to present it as a commitment to a virtuous public sphere is worse than a crime; it’s an error.

[Bill Leak almost certainly breached 18C, but he has a rock-solid defence]

Though the QUT case may have shifted things somewhat, one suspects the politics of 18C are not that altered; the Coalition can’t win an election with it, but they can sure as hell lose one. Craig Laundy, the little chipmunk of Reid, must be shitting his winter nuts at the thought of what a new push on 18C will do to his numbers in the south of his electorate. And in Melbourne’s outer north and north-east are seats perpetually on a knife-edge of 500 votes, and there are 500 votes in deciding that, as far as daily life goes for non-whites, Malcolm Turnbull just doesn’t get it.

Who knows? Maybe the right don’t want it resolved. Maybe they intend it as a permanent lost campaign, like a pledge to restore the Hapsburgs, as a rallying point. That would be indicated by the way they conduct the campaign, 135,000 words, and very little of it a full-on attack on Rubenstein’s position, which was about the most important political statement on the matter. Mostly, I think, in making us do another inquiry into 18C, the right show that they really don’t understand cousin Karl’s remark about history, repetition, tragedy and farce. It will be very interesting to see where we are at the end of it.

*People trying to defend 18C type stuff should stop using this motif. “Shouting ‘fire’ in a crowded theatre” was part of a US Supreme Court judgment that jailed US activists in World War I for handing out anti-war pamphlets. It encapsulates the worst idea of propositional-speech-as-act, and was clearly against the spirit of the First Amendment. It was superseded 50 years ago by a series of judgments that hardened the boundary between speech-as-opinion/proposition and speech-as-act. Thus the existing precedent around the First Amendment in the US would make any law like 18C immediately unconstitutional. Hilariously, the Americophiles on the right, who praise its feerrdom, are all opposed to an Australian bill of rights.

Peter Fray

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