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Whither the Liberal conscience?

By Max Atkinson - posted Thursday, 17 April 2014

Some observers would be surprised to see Senator George Brandis in conflict with leaders of ethnic and religious communities - including Greek, Arabic, indigenous and Jewish - because he insists on re-writing Section 18c of the Racial Discrimination Act, the law prohibiting racial remarks. Experienced politicians avoid unnecessary fights, and this was not a serious issue prior to the conviction of Andrew Bolt for comments which were essentially defamatory.

The Council of Australian Jewry, in particular, supports 18c to deter potential Holocaust deniers like Fredrick Toben, who was successfully prosecuted under this section in 2009.But Senator Brandis appeals to an argument of principle, citing the value of free speech, to draw a line between incitement to racial hatred and intimidation on the one hand, and remarks which offend abuse and humiliate.

In order to understand this one has to clarify what the section means in practice, and consider examples which might be overlooked in the debate. In its present form 18c makes it an offence for an aboriginal or a refugee from Asia or the Middle-East to say 'f… off you white bastard', no matter how justified the sense of grievance, or the fact that this is essentially abuse, with no intention or risk of inciting racial hatred. To prosecute in such a case would be a travesty.


One might also ask why 18c should not be extended to include hate speech which invokes the language of religious and homophobic intolerance, which also express deep-seated prejudice, adding this flavour to common abuse. Use of the criminal law in these cases has, however, been rejected in favour of less draconic ways of encouraging civic values, including education, public shaming and the law of civil wrongs.

The latter provides remedies, including punitive damages, where abusive conduct involves physical contact, however slight; it allows actions for slander, intimidation and harassment, as well as for the reckless or intentional infliction of emotional stress or shock by actions likely to and actually causing psychological injury.

But the fact this is a moral issue about the scope of the criminal law (and not about whether racial abuse is wrong) was lost when Brandis, in an unfortunate turn of phrase, spoke of the 'right to be a bigot'; it was largely lost back in 2009 when no senior Liberal would condemn Andrew bolt, an influential commentator, for articles which implied that light-skinned people who identified as Aboriginal did so for personal gain.

Whether or not one agrees with the Attorney-General - and polling suggests a strong majority do not - his argument for freedom of speech supports those journalists who say he has been pushing for a free vote on same-sex marriage (although he himself opposes reform of the Marriage Act). It is, after all, the same principle. So far, however, he has been reluctant to express an opinion outside the party room.

These two examples show how hard it is to judge the Liberal Party's commitment to liberal principles - which in practice means how much they count against conservative views and the politics of pragmatism, such as avoiding dissension at any cost. But in a strong opinion piece in The Age on January 30, 2012 former Howard minister Amanda Vanstone spoke for this liberal ideal; she accused then Opposition Leader Tony Abbott of stifling debate on same-sex marriage; she also said he should allow MPs a free vote when the matter came before Parliament.

One of the things that really aggravates members of Parliament is when a leader announces, through the media, a decision that has been made after Parliament has risen … As there is no party-room meeting over the break, the leader's announcement and policy position gets all the airplay and permeates the public mind. MPs who disagree with the decision rightly see the timing as a tactic to weaken them …. He should say he will look at the issue if and when it comes to Parliament. And he should give the party room the conscience vote that should never have been given away.


Vanstone added that to refuse conscience votes was against Liberal Party tradition, which 'prides itself on the right of members to follow their conscience' … it is 'a cherished Liberal principle.' History suggests she is right; but before looking at why this principle has in recent years been more honoured in the breach, with only a handful of conscience votes in eleven years of Howard's reign, it is useful to look at Labor's position, which is far more repressive.

In late 2002 the SMH reported that ALP leader Simon Crean had rejected a conscience vote on Iraq, that MPs Tanya Plibersek and Harry Quick would vote according to their conscience on this 'life and death matter', and that 'it took eight questions at a doorstop interview' before Crean would clarify that members were bound by caucus. 'Left-wing leaders', it noted, 'were playing down the refusal of a conscience vote … but … it could become a source of … concern if Labor leaders backed a unilateral US strike on Iraq.'

Labor, in the end, refused to support the war on the technical legal ground that the 'second resolution' failed to get UN Security Council assent. But we also know that no Labor (or Liberal) member would support a motion for a Senate Committee to examine the evidence alleged to support US claims of WMD, a major source of public disquiet at the time, as well as 'left-wing' Labor concern.

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About the Author

Max Atkinson is a former senior lecturer of the Law School, University of Tasmania, with Interests in legal and moral philosophy, especially issues to do with rights, values, justice and punishment. He is an occasional contributor to the Tasmanian Times.

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