“PM’s partial victory on 18C”, The Australian has it this morning, exercising the right in free speech to spin the truth like it was a bottle on the floor at a young libertarians IPA mixer. Partial is right. Homeopathic is more on the money. With the latest defeat of any attempt to substantially alter 18C — what is this, the fourth, fifth, sixth? I’m losing count — those opposed to it have served to further strengthen its position in Australian law. More significantly, they have further cemented in the principle that underlies 18C — that freedom for the greatest number is in some circumstances achieved by the state restricting individual expressions of it. That is a not insignificant moment, as I’ll make clear further on.

M’colleague Taylor has the details of how it went down, and what other purposes a seven-hour debate on this topic was serving — but of course it went exactly as it was always going to. Team Xenophon had already indicated their opposition to any change to it, and the government had to content itself with legislating the procedural changes that the Australian Human Rights Commission said it was going to implement anyway. So a drive to decrease the power of the state ended with Parliament making law, where ordinary processes would have served. That’s the 18C issue all over.

Throughout the last few months of this business, Malcolm Turnbull has been trying to pass 18C changes the way one tries to pass a kidney stone. It’s the last thing one actually wants to do, but it’s got to be done, and it’s going to hurt like hell and make you cry. But the alternative is the knife, of one sort or another. The question of what he actually believes about it is well … haha, these days this sentence actually falls apart as it assembles itself, doesn’t it? He has the worst of both worlds now, the law itself unchanged, and lodged halfway down the urethra. The site may now become infected — I think I’ll hop off this metaphor.

[What 18C is, and isn’t, about (and it’s not free speech)]

More mysterious than Turnbull’s desire to get this passed and past is the right’s game. They get a great deal out of this hanging around forever, a permanent irritant reminding us of their presence, the IPA as UTI … oh, it’s back. As m’colleague Keane has explained, constructing 18C as the central issue in the wider matter of free speech allows you to limit any consideration of what free speech is. Chief among these, as noted, is our iniquitous libel system, which makes genuine defence of reputation difficult, while making it easy to silence publications with shot-across-the-bow threats of lawsuits.

But even if the right were exploiting this strategy of tension for personal gain, in wider political terms, they have paid a heavy price. Five years ago, 18C was an obscure law, brought in at the end of the Keating period and characteristic of a sort of procedural progressivism of that era. People wrote and said shocking stuff at that time, but we hadn’t yet got into the style of meta-shock and offence for its own sake, in which the infliction of insult, hurt and abuse became the point of the act itself, rather than being a by-product of any content it might have had.

With Andrew Bolt’s goading and sustained, and wildly factually false, attacks on a number of Aboriginal people over their skin tone, for godssake, that form of meta-insult found a new focus, and so did 18C. It was to some degree repurposed by the case of Eatock v Bolt, the several plaintiffs using it as a de facto way of suing for gross defamation and sparing themselves the years of misery and cost that going up against News Corp’s lawyers would have cost. That not only expanded the role of 18C (in practice; it may have been there in law), it also alerted many people to the fact that it existed. To a degree, 18C only began to exist as a law for mass citizen recourse after Eatock v Bolt.

[Take note, David Leyonhjelm: 18C is not all about Andrew Bolt]

Having been introduced as part of the “cultural technocracy” of mid-stage multiculturalism — in a period when Australia was still an Anglo-Celtic-dominated country — 18C became a popular and open measure in a different era. That era was Australia after Howard, transformed into a post-Anglo-Celtic society by keeping the immigration settings open, while crying over Don Bradman and raiding the Tampa. With a shift in the population ratios, Australia has come to be what you might call a “full multicultural base” — a society in which negotiation between groups who recognise themselves as groups is not merely a courtesy, or a luxury, but a necessity.

Ethnic community leaders — you don’t hear the word ethnic much anymore, do you?* — have now ceased to be leaders of petitioning minority groups and have become entrepreneurs of social and financial capital. The notion of a unitary public sphere vies with the idea of a society as multiple spheres, intersecting with one another. In such a society, there has to be a set of meta-rules, since each sphere has its own rules. Section 18C can be claimed to have a role as that sort of meta-rule.

But there was a counter-tendency at work too, in Australian history. We had never placed a premium on action free of the state. Quite aside from our arbitration system and state socialist apparatuses, we had one of the worst censorship systems in the world until right into the 1970s. Collectivism economically and politically reinforced each other. That began to change with the neoliberalisation of the 1980s. As people became more individually responsible for their own lives, and gaining or losing from such, the idea of a public sphere of individuals began to take greater hold.

[The limits of 18C: racism is on the rise, and it’s not up to judges to stop it]

The extraordinary anti-achievement of the anti-18C lobby has been to deal a great blow to that tending motion towards individualism. By turning 18C into a bare, contextless issue, they have single-handedly revived the power of the multicultural lobby to a point not seen since the ’70s, when they commanded hundreds of thousands of people with little or no English, whose votes could be got with one long lunch with a shady lawyer, sorry community elder.

With 18C under attack, people have reaffirmed that they want Australian society to have substantial collectivist, corporatist features — except now the arena of culture, not of economics is central. And it’s in that arena that the IPA et al have lost. It’s a loss to add to their trophy wall — the mid-’20s attempt to nobble arbitration, another go at it in the mid-1950s. In every case, defeat has occurred for the same reason — the libertarian right politick in the country they would live Australia to be, not the place that it is. In doing so they have made Australia even less to their liking.

But perhaps they like it to be less to their liking, in order to play the role of permanent insurgent. For their sakes I hope so, because if not, they have just really, really taken the piss, and quite painfully. As for 18C, well, I presume someone’s writing the book. They can have it. Me, I want to write the musical ….

*other words to have disappeared: nervous breakdown, franger, “gas” (for quite good), bulk (for lots, but not of a physical quantity, “we had bulk fun”), desktop publishing, Tracy Bartram, rhythm guitarist, foolscap, base (cocaine variant). Others? Send in yours!

Peter Fray

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