Well, yet another report on the 18C/18D/18E provisions on racial vilification has come in — and it’s another loss for the right on the issue, with the Parliamentary Joint Committee on Human Rights providing a raft of recommendations about fix-ups of the procedure of administering the Racial Discrimination Act, noting t.e.h racismz is t.e.h badz, and then refusing to make any majority recommendations whatsoever about what to do about 18C as law.
For “refusing”, read, “were incapable of”. The committee is composed of Labor, Greens, Liberal moderate Julian Leeser, WA Senator Linda Reynolds and Sprog-Boy Senator James Paterson, spawn of the IPA. As the executive summary coyly notes:
“The range of proposals that had the support of at least one member of the committee included:
(a) no change to sections 18C or 18D;
Sign up for a FREE 21-day trial and get Crikey straight to your inbox
(b) amending Part IIA of the Racial Discrimination Act 1975 to address rule of law concerns and to ensure that the effect of Part IIA is clear and accessible on its face, by codifying the judicial interpretation of the section along the lines of the test applied by Kiefel J in Creek v Cairns Post Pty Ltd that section 18C refers to ‘profound and serious effects not to be likened to mere slights’; (c) removing the words ‘offend’, ‘insult’ and ‘humiliate’ from section 18C and replacing them with ‘harass’;
(d)amending section 18D to also include a ‘truth’ defence similar to that of defamation law alongside the existing 18D exemptions;
(e) changing the objective test from ‘reasonable member of the relevant group’ to ‘the reasonable member of the Australian community’; and
(f) criminal provisions on incitement to racially motivated violence be further investigated on the basis that such laws have proved ineffective at the State and Commonwealth level in bringing successful prosecutions against those seeking to incite violence against a person on the basis of their race.”
So another enormous waste of time — many of the useful suggestions in the report could have been done in standard operations, as AHRC chair Gillian Triggs noted — to gain a result that is even more farcical than the last. “Recommendations supported by at least one member of the committee …” is a hilarious phrase for a committee to use in a committee report, because it indicates that there was no committee, de facto, on the matter for which the committee was convened. It was just a bunch of people in a room for six months, attended by a staff of 12. Your taxes at etc. Ferrdom! The Greens also issued a dissenting report within the report, on some of the other recommendations.
But, in fact, the committee did come to a joint recommendation, by process of exclusion. As the IPA’s pale young man on the case Simon Breheny noted, the one recommendation they didn’t make in the Chinese menu report was for the abolition of 18C/18D/18E entirely. After three goes at 18C, including a 2000+ submission parliamentary inquiry, and now this committee report, the abolition of 18C has gained no significant support whatsoever. That proposal, as one of actual government and policy, is finished.
But, as politics, not so much perhaps. The 18C mavens in the comment pages of The Australian, the blogs, the think tanks, now face a difficult strategic question. If they let it go, they are admitting a significant defeat. The absence of an “abolition option” for 18C/18D/18E is not a small matter; it reaffirms a certain idea of the relation between the Australian state and society, that is specifically characteristic of the post-Menzies period, and ultimately goes all the way back to the Harvester judgement.
A cross-party committee has confirmed the role of the state as something that can be used to shape social behaviour in ways that go beyond the enforcement of clear-cut criminal and civil law. Just as Harvester confirmed the idea that the state could decide what the minimum conditions of modern life — and hence of a modern wage — should be, the cross-party support for 18C confirms that all mainstream parties agree the state should be an “interpretive” one.
All judicial processes are interpretive of course, but in a classical liberal state they would be minimally so, interpreting speech only to decide in cases where law is ambiguous or contradictory. The RDA and 18C/18D/18E suggest that the state should effectively seek out opportunities to pass interpretive judgement on speech acts, even when those acts are messy mixtures of half-heard, differently remembered, everyday encounters in wildly differing social and cultural contexts.
Thus, in the midst of a world where markets and capital are taking over the running of areas of life that were, in the post-WW II years, the province of the progressive state, not a vote can be found to turn over such complex state-judicial processes to the private and non-state public spheres. That is extraordinary.
It’s also disastrous for the mainstream right. For it’s now clear to all that the principal loser from the long-running anti-18C campaign has been the Liberal Party. Both the Greens and Labor have good philosophical grounds to support 18C, and the support of their base in doing so. They come out of this process looking strong and unified. The Liberal Party doesn’t look like a party at all; it can’t even, as the Greens have, issue a dissenting report within the report. To its supporters who oppose 18C, it looks compromised; to those who support 18C it looks weak for not standing up to the party right.
The obvious beneficiary is One Nation, and the new Bernardi conservative force, that George Christensen appears to be on the path to, having resigned as National Party whip. For hard-right supporters like Andrew Bolt that doesn’t seem so bad: “Must we now vote for One Nation then?” he asks on his blog, which translates as “please, please, please may I now vote for One Nation?”.
Given its commitment to banning aspects of Islam, One Nation’s commitment to ferrdom! is pretty tenuous. If Bolt is going there, he won’t be taking many 18C mavens with him. The 18C stoush demonstrates one of the interesting features of the right’s radical turn: in abandoning conservative notions of compromise and prudence, it has taken on a Leninist style of politics, leaning on the contradictions within a party, rather than minimising. “Split, split and split again, until you are as sharp as a stake,” the man said, and the 18C-istas appear happy to follow that lead.
There is far less division on what is labelled the left, though many of us from its more “material”, rather than liberal-cultural, traditions would prefer a law that allowed sanction against street harassment and menacing of a racist character, which would help minimise the un-freedom many citizens suffer from the casual headfuckery of getting the n-word or similar hurled at them.
Any left that wants a transformative politics must be “Jeffersonian liberal” in nature, preserving the right of the public sphere to be protected from the state, even when people within it call for the overthrow of the state. In that respect, 18C is a conservative law, shaped to a society that has been a multicultural, high-immigration one for nearly three-quarters of a century now.
Part of the right’s terrible troubles over it are that all the labels are stuck on the wrong people; the moderate Liberals defending it are being conservatives, as are the centre left who want to preserve it and improve its functioning. The “conservatives” are right-wing radicals, as programmatic about 18C as are the cultural left, who want to use it more aggressively to reshape public behaviour.
Ah, 18C. One can only recall the dedication in economist Marshall Goldman’s book on Soviet agriculture: “to the USSR for making an economist’s life so interesting”. Thanks 18C! Thanks IPA! Thanks Bolter, Planet, Little Bird, editor of the Spectator Uriah Heep, portable blazer mannequin David Flint, economic eugenicist Gary Johns. It’s all been such fun. We take off our hat to your hat-trick of losses, and await your next move.