The 18C “debate” has been one of the most bizarre episodes in recent Australian political history. The transformation of the late Bill Leak, in his life, from cartoonist and artist into culture hero was of that level. The combination of the two is, in the title of a book by human fire-in-a-mattress-factory Rowan Dean, way beyond satire (Way Beyond The Talents of Rowan Dean was the book’s original title but didn’t test well).

Leak was an excellent artist and caricaturist of several decades standing, and a good enough cartoonist, whose talents — to the chagrin of many of those who liked his work — were increasingly put in the service of News Corp’s culture war agenda, in the years after he suffered a life-changing accident. But even those who didn’t like what he did recently, recognised his talents in his field, and as a writer, broadcaster — and, in his time, a notorious hell-raiser.

In death, this Bill Leak, the man in full, has been disappeared. He is now being remembered as nothing other than a victim. The man is being painted as someone who was “hounded” to death — by t.e.h leftz, by 18C. Leak, the subject and author of his own life, is being replaced by Leak, the object and sufferer of forces beyond his control.

This is an extraordinary thing to do to the memory of someone being celebrated for their “larrikin” streak, but it is doubly bizarre to do it in an attempt to weaken the 18C law. The whole point of the opposition to 18C is that the maintenance of open speech and debate in a robust public sphere is dependent on regarding people as subjects, not objects — autonomous human beings exchanging views that can be considered and replied to, with other views. That notion of civil robustness extends to civil legal procedures too, which have no sanction against the body (i.e. which you can’t go to prison for). The courts take a dim view of people claiming that depression or other mental conditions prevent them from defending a civil suit — as well the courts should.

Leak became a subject of a civil procedure under 18C, when an expatriate Australian filed a complaint against him for his “what’s his name” cartoon. The cartoon was a piece of white-skin-privilege resentment against the exposure of systemic abuse of indigenous (and non-indigenous) kids in the NT incarceration system at the Don Dale facility. The cartoon was nasty and a piece of pure political defence and distraction, but it was clearly protected under the 18D caveats of 18C, regarding expression of opinion and comment. The complaint was soon withdrawn. Had it proceeded it would have been dismissed.

This farcical episode has now been constructed as the “human toll” of 18C, the time lapse between the register of the complaint, the pro forma invitation to Leak to respond and the withdrawal of the complaint as a “four month investigation”, whose terrible impact, it is implied, caused Leak’s death. This is right off the bat, a denial of personal responsibility for it seems to imply that Leak’s personal history had nothing to do with his early death — ironic, given that the cartoon, the complaint over which is alleged to have killed him, was damning a whole people for allegedly failing to take responsibility (damning them collectively for failing to take individual responsibility — the thing was addled from the start).

But more pertinently, it is yet another example of an attack on 18C turning into a defence of the assumptions on which it operates. The earlier, raw charge that the left “hounded Bill Leak to death” obviously buttresses 18C — for if nasty words can cause heart attacks, their material effect is obviously established. In that case, civil speech can be treated as a thing, and an insult, if sufficiently vicious, regarded as the same type of thing as a swung baseball bat. The materiality of discursive speech is the principle on which 18C is based.

But there’s another principle which underpins 18C, and that’s a utilitarian commitment to collective welfare, as opposed to the defence of inalienable rights regardless of implied consequence. The legitimacy of 18C is based on a notion of “positive” freedom — that humans can only be free in an environment where they can flourish in their being and actions, and it’s a little hard to do that if someone calls you “n****r” every time you go into the shop for a Snickers. Setting the balance between negative freedoms (restraining the state from coercive action) and positive freedoms is what defines modern politics, on one axis at least.

What idea of subjectivity and civil life are the “defenders” of Bill Leak advancing if they are arguing that a nuisance, inconsequential administrative legal process can have fatal consequences? This is a model of social life in which the subject is so easily impinged upon, damaged, crushed, annihilated, that the balance would have to be set firmly in the “positive” freedom direction. If being called a racist causes fatal heart attacks, what must be the effect of actual racism in its most vicious expression?

There is a wealth of evidence that everyday racism does cause stress, depression, anxiety and other factors associated with heart disease risk, and such would also be obvious to simple common sense. By that account, and using a utilitarian logic of greatest good and least harm with no chatter of “rights”, 18C presumably saves more lives than it takes, and the risk that the stress of a challenge under the law will have serious, even fatal, consequences for the defendant, is worth the risk.

The Bill Leak brigade thus appear determined on, and are having some success at, further entrenching the whole set of ideas that underpin 18C. They are doing so in a country where notions of collective good, a supervisory state, and a low regard for individual rights have been part of our history for more than a century. The moves to change 18C are failing because a lot of people not only believe in it, but in the abstract principles that underpin in. Moreover, they see those collective principles as something distinctly Australian — a continuity between Anglo-Celtic “settlement” Australia, and the multicultural social-market society it has become. Many people see laws like 18C not as a travesty of Australian life, but as an expression of its distinctive character, especially in comparison to an otherwise similar white settler capitalist society like the USA.

Straya straya. The country where a libertarian politician, one David Leyonhjelm, launches an attack on the “nanny state” by holding a government inquiry into it, where the prime minister tries to remove sectional notions of community, by doing a ring-around of ethnic leaders to see if that’s alright with them, and where the free spirit of a so-styled larrikin is defended by reducing him in memory to a victim, which is like being nothing at all. With friends like Bill Leak had, the mourners become the carrion crows, and the loved one the funeral ham, coldly furnished forth.

Peter Fray

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