AND RACE LAWS NEED AN OBJECTIVE, NOT SUBJECTIVE , DEBATE
WHAT would you think if I told you that in Australia, one of the world’s oldest and most successful democracies, a certain eminent person wanted to keep in place laws that put more limits on what people could say and write — more limits on our speech — than exist in the US or at the national level in Canada?
WHAT would you think if I told you that in Australia, one of the world’s oldest and most successful democracies, a certain eminent person wanted to keep in place laws that put more limits on what people could say and write — more limits on our speech — than exist in the US or at the national level in Canada?
What would you think if I also mentioned that this eminent person’s test of when someone could speak or not speak seemed to depend in large part on when and where this eminent person’s “sympathies” ended — as in his sympathy for the argument someone else is making?
In other words, if this person thinks the argument is acceptable, that’s OK, but if it goes beyond the extent of what this person’s sympathies can bear, well, that’s not on. And pushing for that much free speech provokes “deep frustration” in this eminent person.
Apparently his sympathies and his moral antennae vibrate at the perfect frequency for knowing when someone else’s speech gets its tone wrong.
Or when it crosses the line (his line) when discussing the melange of issues related to affirmative action benefits based on what is loosely called “race”, to whether people ought to be able to self-identify to qualify for those benefits, to whether such benefits ought to exist at all, to whether this sort of self-identifying leads to middle-class capture of such benefits, and more.
What if I told you that this eminent person likes to say that he is in favour of free speech, but then he talks as though it was wholly right that Andrew Bolt was silenced by section 18C and Federal Court judge Mordecai Bromberg’s interpretation of those speech-stifling laws?
What would you think of all that? What would you think if I added that this eminent person made these sort of arguments in this paper yesterday?
I suppose, like me, you might be tempted to think it was all an April Fools’ Day joke of some sort. Surely no one who thinks about the issue of free speech for more than one minute can really believe that the test of whether others in a free and democratic society ought to be able to say something is to be determined by what I happen to like. Or by what I find simpatico, as it were. Or by the tone of argument that I happen to find offensive or insulting. As though I, by some cosmic fluke, am the pinnacle of four billion years of moral evolution and so it’s my sympathies that count. What rot!
Look, this issue of what people can say and when and how is crucially important to us all. A century and a half ago the great liberal philosopher John Stuart Mill made the key point that you do best as a society by letting people speak pretty much as they will unless they are threatening violence (virtually no one supports that), or their speech will have catastrophic consequences (say, when someone wants to publish how to make some new biological weapon).
It is in the cauldron of competing ideas, some of which we know going in will be distasteful and wrongheaded, that truth is most likely to emerge.
A corollary of that is that Mill thought the average Joe was as likely to see through the Holocaust-denying moron or the neo-Nazi nutcase as the sociology professor with four degrees or, yes, as the handful of human rights commissioners on their $320,000 a year salaries.
Experience shows that trusting government bureaucracies and judges to decide who can say what, to rely on their sympathies, is a bad, bad mistake.
The seven million Jews who prefer to live in the US without any hate speech laws at all prove that point every day.
Did you know that the same sort of issue that came up with Bolt came up in the US with now senator Elizabeth Warren and her claim to be one-sixteenth or one-thirty-second Native American and whether that helped her win a job at Harvard?
The debate there was more vigorous than anything here. It seemed in the end that Warren had no Native American lineage at all. We don’t know if it helped her get the job. And the voters in Massachusetts elected her anyway. But no one thought about taking anyone to court, regardless of their tone or anything else.
However, what’s good for the US goose is not good for us Aussie ganders. Or so says our eminent person, Warren Mundine. His sympathies don’t extend that far.
If you think that my tone is dripping with sarcasm in this piece, you’re right. Mundine’s argument is pathetic. It warrants only derision. Yes, I could have written this piece in a more respectful way that covered the same basic ground. But the truth is that Mundine’s position warrants this sarcastic tone.
Sure, I might also have sent my draft along to Bromberg to have him check my tone against his sensibilities, but in a longstanding democracy, one of the world’s most successful democracies, I really don’t feel like making Bromberg the arbiter of my tone of voice or the de facto editor of this newspaper.
Here’s the takeaway point. The Prime Minister has no business taking free speech advice from Mundine.
And if what is really going on behind the scenes in the Liberal Party caucus is a fear of how this may play with some voting blocks, let’s get the names out in the open of Liberal MPs who want to object to the Attorney-General’s announced repeal of section 18C. These doubters can then see what otherwise Liberal voting people make of their hesitation.
Personally, I wouldn’t vote for any Liberal MP who blocked these Brandis reforms. Would you? You can consult your sympathies on this one.
James Allan, is Garrick professor of law, University of Queensland.
