Monday, 9 December 2013

'Bolt law' vow must be kept James Allen 5/12/13

'Bolt law' vow must be kept

THIS government's commitment to repeal at least parts of section 18C of the Racial Discrimination Act, the so-called anti-hate speech laws that were used against Andrew Bolt, raises at least four crucial issues.
First, any commitment to free speech is a commitment to allowing people to say and write things you may not like, that you may detest, that you may disagree with and find offensive. If the words spoken are words we all agree with and find congenial, then there is no need for any commitment to free speech.
John Stuart Mill gave the best reason you'd want society to allow speech that might offend or insult or really annoy others, 150 years ago. His is an optimistic claim that, in the long run, we can trust our fellow citizens to see the truth when they hear myriad opinions and claims.
Mill's defence of free speech also relied on a certain distrust of government and government agents and bureaucracies, and even judges. What grounds are there, really, for thinking they know what is right and true and won't abuse their position when silencing people?
Mill even argued, correctly I think, that we all learn almost as much from hearing what are ultimately wrong and distasteful views, and having to consider and respond to them. We gain a stronger appreciation of what is defensible and plausible.
The next point about the repeal of these existing hate speech provisions is that they were grossly misused in the Bolt case. Like him or hate him, he had a valid point to raise. If you are going to give benefits, affirmative action-type benefits, to people solely or largely because of their race or heritage, then why shouldn't one be able to point out that those getting such benefits don't share characteristics normally associated with that group getting the special deal?
Why shouldn't someone be able to raise those sort of points, even in a sarcastic way? Is it really the case that we want to live in a society where hurt feelings or a sarcastic tone, or even a few wrong factual claims, mean points such as these can't be raised; that they can be silenced by a judge?
The whole Bolt saga was an embarrassment to Australia's liberal credentials.
Next, there is the democratic issue. Tony Abbott and the Coalition went to the September election with a major pledge to repeal all or most of section 18 of the act. So it is right that, having won a big majority, they do what they promised.
If the opposition wishes to block any such repeal in the Senate, then it is purely a pragmatic question of how to proceed, most likely by waiting for the new Senate. But if it were to be blocked there, too, then I would hope, indeed expect, a double-dissolution election on this. It is a matter of that sort of importance, truth be told.
The fourth issue relates to the prudential aspects of running a newly elected government. George Brandis, our new Attorney-General, made plain his commitment to free-speech principles before the election. And he is clear that he will proceed with some sort of repeal.
Yet now we are hearing from groups such as the Australia/Israel & Jewish Affairs Council and the Executive Council of Australian Jewry that they are somewhere between lukewarm and downright frosty on this idea of repeal.
I need to make clear that I think I am one of the biggest non-Jewish supporters of Israel going. I see a democracy surrounded by a sea of authoritarian regimes that attack it regularly. But none of that makes any claims from groups such as these about strong hate-speech laws being necessary to protect Jews in Australia even remotely plausible.
The biggest and most successful population of Jews outside Israel lives in the US. You know what? There are no hate-speech laws in the US. None. All of the supposed dire consequences that will befall Jewry in Australia have not done so in the US.
In fact, if you look at European democracies with strong hate-speech laws of the sort the executive director of the ECAJ seems to prefer, many of those are far less congenial places for Jews to live than the US. And that's putting it mildly.
Jews in the US are able to trust the ultimate good sense of the public there to see through the ranting idiocies of neo-Nazi nutcases but, apparently, we in Australia can't get rid of section 18C because the public here is not to be trusted.
Seriously? I think that gets things all wrong. It's most obviously wrong on the consequences. As Mill said, it's bad to silence people holding dumb and nasty views because that way people don't get to see that those views are dumb. Worse, you turn them into martyrs.
You end up legislating in favour of smart, articulate (but equally nasty) people who take those nasty ideas and repackage them in ways that get around the laws. You get, for example, the unintended consequences of taking the idiocies of Jean-Marie Le Pen's National Front in France and forcing it to be repackaged in the hands of a more careful, ever-so-slightly more circumspect daughter - one who ends up being more successful. It's not clear to me what hate-speech laws have done in France to further the position of Jews or other minorities.
So I think the ECAJ of Australia is terribly wrong-headed in its opposition to the repeal of these laws. And that takes me to my second point to make clear.
I have no idea if the AIJAC or the ECAJ are big supporters of the Coalition parties. Nor do I know whether they would try to move their support to the Labor Party if this repeal were to pass.
I can speculate that the number of Coalition people who care deeply about this repeal - people such as me, who would be very disgruntled with the Coalition if it wimps out on this - are a fair bit more numerous than any Coalition voters who might walk away next election if repeal is pursued.
This repeal needs to go ahead. All four aspects of this provision, the ones aimed at offending, insulting, humiliating and intimidating, they need to go. A half-hearted repeal would hardly make Brandis or the Coalition defenders of free speech and liberty. Honour your campaign pledge, Senator Brandis.
James Allan is Garrick professor of law at the University of Queensland.

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