Look up there in the sky! It’s Freedom Boy, Tim Wilson! Stuffing up again! When we left Freedom Boy at the cliffhanger end of last week’s episode, he had used his superpowers to rise without trace to the green of the government benches, spending a couple of years as a useless rights bureaucrat, his position having been created by sacking a hard-working and passionate commissioner representing disabled Australians.
Now he’s turned his attention to our national sport, the beautiful game, debate around 18C/18D/18E. The IPA has recently returned to their absolutist position of abolishing the law entirely, which suggests they are entering a Trottish phase — likely to get nothing, they are going to demand everything, and make loss look like principle. Tim, now in gumment, doesn’t have that luxury. The multicultural and Jewish community peak bodies have recently reaffirmed their support for 18C in its current form. That makes any substantial change to it in 2017 a courageous political act.
But, at the same time, use of the law is proliferating, in part because of the publicity given by News Corp to what was hitherto a semi-obscure legal instrument. The case being run by some claimed representatives of the Japanese-Australian community to a memorial for “comfort women” (forced prostitutes, many Korean, some captured Australian nurses and civilians, in WWII, many of them eventually murdered) is a case in point.
Like any good classical liberal, Tim is concerned about the inherent acknowledgement of race as a real social category in 18C. His answer, absent abolition: make the law colour-blind by extending the “public humiliation” provisions encoded within, so that everyone can access them. Here’s the idea:
“A consistent and appropriately targeted test would focus on workplace harassment, which includes acts that seriously humiliate and denigrate people, causing intimidation. The other is public harassment that seriously humiliates and denigrates others to cause intimidation … projecting challenging ideas — even those that offend, insult or humiliate, bringing culture shame — in newspapers wouldn’t.”
Brilliant. He would like to rescue freedom by extending the degree to which law covers everyday interactions. So now everyone who gets seriously yelled at by an irate boss who gets personal and nasty has not merely an industrial claim, but a potential legal one. Everyone who has a stand-up argument with an ex, them yelling at you, and emptying a bag — “you seemed so cool from your articles but you’re just a depressing middle-aged burnout! Here’s your tattered copy of Fear and Loathing, here’s your half-finished Bukowksi screenplay, here’s your Eagles cassingles, here’s your leopardskin underwear, stop faxing me” — outside Mari-, outside a well-known cafe, to take some wildly improbable example, has a legal claim.
Worse, it’s a definitional minefield for legal testing. What counts as “serious”? What counts as intimidating? Can the boundary between public media and everyday life be held? If the Herald Sun prints something humiliating and denigrating on their front page, and it’s in every shop in town, in what sense is it not a public act?* All of the procedural problems with 18C — vexatious complaints, damages-fishing, proliferation — are solved.
The only thing it does satisfy is classical liberalism’s desperate desire to pretend that the public square has an even surface, populated by individuals, who bring their own unique characteristics to it, and evolve collectivities by a series of contractual relations. Any notion that prior structures of meaning and identity exist must be denied. But the fact that they do exist means that words fall in different ways on different groups of people, and have a material force that other words do not. There are words that can be used to and about non-white people that have no equivalent coming the other way. I can call Tim Wilson the losing candidate in the Flight Centre audition, a blancmange in a suit. I can say that somewhere a car yard forecourt is missing a Mr Blowy. I can call the member for Goldstein as useless as a smile drawn in the snow with my piss … none of it compares to the one word a white person could use to a black person who takes their parking space, or the one word can be said to a bunch of kids walking to school in Caulfield. And so on.
Tim, you sweaty bad children’s party clown, focus. The point is to narrow 18C so that the genuinely powerless and harassed have some legal recourse, not to make a new lawyer’s feedlot. That means grouping it more tightly around racial harassment, intimidation and insult, not less. For every vexatious case your proposal would quash, it would open the process to a dozen different ones. Merry Christmas, Freedom Boy, shiny bauble.
*Alternatively, if that exception is legally robust — would a neo-Nazi who wants to stand outside the Brighton Hebrew Congregation synagogue, in Tim’s electorate of Goldstein, and politely hand out vicious anti-Semitic propaganda, be able to do so without legal sanction? While someone who yelled personal insults at them in an allegedly threatening manner be liable for a claim against them by said neo-Nazi?