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'Team Australia' dumps free speech promise

By Laurence Maher - posted Monday, 17 November 2014

Just one little word

In the four months before Prime Minister Abbott announced in his "Team Australia" speech on 5 August 2014, that his government would not implement the promise he affirmed in the September 2013 election campaign to repeal s 18C of Commonwealth Racial Discrimination Act1975, most of the public commentators singing the praises of the s 18C censorship regime expressed the opinion that the repeal proposal was doomed, and that the turning point had occurred on 24 March 2014.

On that day, the Commonwealth Attorney-General, Queensland Senator George Brandis QC, answered the following question in the Senate, "Won't removing section 18C facilitate vilification by bigots?with the words, "People do have a right to be bigots, you know. In a free country, people do have rights to say things that other peoplefind offensive, insulting orbigoted."


If the Attorney had said, "People do have a right to be dissenters, you know. In a free country, people do have rights to say things that other people find offensive, or insulting", the Abbot government's position could (and should) have been strengthened.

The Attorney's Senate answer - the renowned ABC Fact Check Unit to the contrary notwithstanding - was not "ill-informed", but his use of the "b"-word involved a mismatch of oratorical technique and political nous. The ensuing torrent of public indignation demonstrated the power which the contemporary left/progressive censorship movement exerts, via laws such as s 18C, on public debate.

Nevertheless, the pro-s 18C forces had a point. Repeal of s 18C was doomed. However, it was not because of the Attorney's matter-of-fact observation in the Senate. The infant proposal for repeal of s 18C had been asphyxiated at birth on 6 August 2012 when Opposition leader Abbott made his stirring pro-free speech address to the libertarian/free-marketInstitute of Public Affairs (IPA).

The s 18C controversy had flared in September 2011 when Justice Bromberg of the Federal Court of Australia delivered judgment in Eatock v Bolt upholding a s 18C claim brought by a group of fair-skinned Aboriginal Australians against the prominent newspaper and television commentator, Andrew Bolt, arising from publication of two articles in which Bolt entered the taboo territory of what it means to be an indigenous Australian.

Repeal of s 18C was always going to be an uphill battle. Were it to be accomplished, however, it would be the first legislative rejection of the political censorship imposed at State and Commonwealth levels commencing three decades ago under cover of the crusade to suppress selective categories of that impenetrably obscure postmodern abstraction, "hate speech". It was an odds-on certainty that the supporters of s 18C would strive mightily to defeat the repeal proposal.



That said, repeal was far from being a hopeless cause. After all, why would any self-respecting political party shy away from a campaign designed to remind the citizenry that vigorous dissent, not suffocating conformity/uniformity, is a constitutive value of a free, open, and secular Australian society?

Moreover, repeal would bolster the major historic shift towards recognition of individual free speech as such a value which had occurred in 1992 when the High Court of Australia held that the Australian Constitution contains a limited implied freedom of communication concerning government and political matters.


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About the Author

L W Maher is a Melbourne barrister with a special interest in defamation and other free speech-related disputes. He has written extensively on Australian Cold War legal history.

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