Gay Alcorn theguardian.com, Thursday 7 August 2014
George Brandis’s proposals were always compromised because they were motivated as a personal favour for just one man: Andrew Bolt
Tony Abbott at a joint press conference with foreign minister Julie Bishop and attorney general George Brandis. Photograph: HO/AFP/Getty Images
That Tony Abbott personally called Herald Sun columnist Andrew Bolt to tell him the government was abandoning its promise to wind back racial vilification laws is all you really need to know. Bolt blogged about it before the rest of us were told of Abbott’s “leadership call” to scuttle laws he once considered anathema to the “sacred principle of free speech”.
Even if you believe – as I do – that to “insult and offend” on racial or any other grounds should not be unlawful in a raucous democracy, the proposed gutting of the racial discrimination act has rightly failed, and failed in a way that tells us something.
The proposals were always compromised because they were motivated as a personal favour for just one man: Andrew Bolt. As the understated president of the Human Rights Commission, Gillian Triggs, put it, they were “contrivance deliberately to ensure that a Bolt-like case would not emerge again.”
The Coalition did oppose on free speech grounds the 1995 racial hatred provisions that made it unlawful to “”offend, insult, humiliate or intimidate” on the basis of race or ethnicity. But there was never any great fuss about them after that – they were used sparingly and only in serious cases of racial abuse. The vast majority of cases were resolved at mediation.
It was only when nine prominent fair-skinned Aboriginal people successfully sued Bolt in 2011 over articles suggesting they had chosen to identify as indigenous for professional or financial gain did the conservatives discover that Section 18C was a “grotesque limitation on ordinary political discourse,” as attorney-general George Brandis put it.
It was always a hard case to champion, because Bolt’s articles were not merely challenging these people’s very identity, but were so full of errors that justice Mordecai Bromberg found that he couldn’t rely on the broad “free speech” exemption for public debate under section 18D. None of the complainants had “chosen” to be Aboriginal and all had identified as such from an early age.
It is Brandis who bears greatest responsibility for this debacle. With all the other challenges Australia faces, winding back racial hatred laws was a strange priority. But before the election, Brandis declared it was the Liberal’s party’s “historic mission” to stand up for freedom of speech, to reframe the human rights debate away from “victims” claiming special privileges. Getting rid of 18C was so urgent, he intended it to be the first piece of legislation he introduced as attorney-general.
Brandis couldn’t help the egotism of placing himself at the centre of a grand historical mission against the “moralising new secular left” that sought to control speech and control thought. It was Brandis’s chance to be on the side of the righteous, front and centre in a recharged culture war.
With such hubris, it was impossible for Australia to have a nuanced debate about freedom of speech, tolerance, and the right to offend.
Such a debate might have been emotional, but it might have been worthwhile to pull back our laws a little, or define terms more clearly. It might have meant talking about the distinction between what someone says and their right in a democracy to say it, and to argue when and where the law should step in. It might even have meant defending Bolt, but it couldn’t mean only defending Bolt.
As it turned out, the debate was divisive without purpose. Brandis’s exposure draft released in March was so egregious it united and energised opponents from every ethnic group and almost everyone else bar the Institute of Public Affairs. The ludicrously named Freedom of Speech (Repeal of S18C) Bill so gutted the law it was impossible to see how anyone could fall foul of it. Even if you had intimidated or vilified someone under the changes, it didn’t really matter. Whether you had done so in good faith or reasonably was irrelevant, and nothing said in “public discussion” of virtually any sort would be caught.
Representatives of Indigenous, Greek, Jewish, Chinese, Arab, Armenian and Korean communities issued a powerful joint statement that vowed to step up a campaign against amendments that would “license the public humiliation of people because of their race”. But it was Brandis’s response to Labor senator Nova Peris’ questioning in March that really finished these laws off. “People do have a right to be bigots, you know,” Brandis told parliament. “In a free country, people do have rights to say things that other people find insulting or offensive or bigoted.”
That’s a true statement in the abstract, but it was so lacking in empathy or nuance, so lacking in the spirit of racial tolerance, that even those in his own party were aghast.
When Bolt was found to have breached the racial discrimination act, he said it was a “terrible day for free speech in this country”. Bolt and his wife Sally Morrell dined with Abbott after the verdict, which makes it fitting that Abbott would ring to tell him on Tuesday that all the promises to the conservative warrior had come to nothing. Bolt himself seemed to grasp at least in part that to have him at the centre of a battle for “freedom” was always fatal.
“To associate it with me meant so many people of the left thought that any law that could be used against me must be pretty good, and I think that’s poisoned the debate,” he told radio station 2GB.
Yes Andrew, it did poison the debate. But the “left” didn’t make it all about you. You did, and so did the government.
