A Bigots’ Frenzy:: how race, class and gender still matter in the Australian politics of Section 18C.

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Australia is a democratic pluralist society and there lies the rub. Democracies privilege freedom, while pluralism requires civility. In the increasing hyperbole surrounding the question of the impact of Section 18C of the Racial Discrimination Act many are arguing that freedom of speech should trump freedom from hate, and others that the current “balance” is fine.

A sociology of the protagonists suggests that those who are proposing to diminish the protections offered to victims of racial vilification under 18C are predominantly well-off (Christian) Euro-Australian males, who are also the majority of those previously complained against under 18C. Those who are opposed to changes to 18C tend to be drawn from minority groups in terms of ethnicity, race and religion, and are more likely to be women.

It is important to understand why we have Section 18 at all. In 1966, with the long serving Prime Minister R G Menzies recently retired, the new and more liberal Holt government signed onto the UN International Convention for the Elimination of All Forms of Racial Discrimination. In doing so it filed a “reservation” on Article 4A, that is, refused to enact that article which required signatories to criminalise race hate speech. Even so it adopted Article 5, which includes “the right to freedom of opinion and expression”.

In 1975 the Whitlam government ratified the Convention through the Racial Discrimination Act, which was left silent on the matters covered by Article 4A, namely the promotion of racial discrimination and racial vilification. It was not until 1993, after the Human Rights Commission inquired into racist violence associated with the arrival of Indo Chinese refugees, that the Keating government notified the UN that it intended to seek support for action under 4A and thereby set in place what would be needed to withdraw its reservation.

Opposition from the coalition and independent senators led to a form of amendment (Section 18) to the Act passed in 1996, without any criminal sanctions. Australia’s reservation on 4A thus remains.

The primary push for removing Section 18 comes from the neo-liberal lobby group the Institute for Public Affairs. Following the last Federal election it has two former operatives in the parliament, Tim Wilson MHR and Sen. James Paterson. In addition the push is led by ultra-conservatives Sen. Cory Bernardi and Sen. Eric Abetz. At the heart of their anger about 18C was the determination by the federal court that Melbourne IPA associate and media commentator Andrew Bolt had breached Section 18C by carelessly and untruthfully, and therefore in bad faith, maligning the bonafides of light-skinned Indigenous people who had accessed various government benefits relating to their Indigenous status. With Rupert Murdoch as a patron of the IPA, the News Ltd. media have been consistent critics of the Act and the HRC’s role in its administration.

Tony Abbott’s first election agenda was heavily dependent on the IPA’s list of demands, including the end of 18C. Attorney General Brandis announced early on that Section 18 was going to be eliminated or heavily amended. Widespread concern in Indigenous and ethnic communities at the licensing of race hate that they felt would result, led to the formation of a loose alliance which described itself, in a symbolic affirmation of the international body’s legitimacy, as the United Nations.

This UN group comprised Jewish, Arab, Indigenous, Chinese, Greek, and other community members. Early in 2014 it met with Brandis, and argued for the full retention of Section 18. However it allowed that if the government pressed on, it would acquiesce to the replacement of the “lighter” elements of 18C (insult and offend) by the word vilify, if the heavier end of the 18C (intimidate and humiliate) was toughened up by changes to the Commonwealth Criminal Code Act (1995). The Code under Chapter 5 (The Security of the Commonwealth) Part 5.1, Subdivision C – Urging violence and advocating terrorism, in sections 80.2A and B, criminalises the intentional urging of violence against a group or a member of a group distinguished by race, religion, nationality, national or ethnic origin, or political opinion, where such violence would threaten the peace, order and good government of the Commonwealth.

There is a defence for acts done in “good faith”, and it was this defence that the UN group wanted modified, so that exhorting violence against ethno-religious groups would not be subject to a good faith defence. Brandis agreed to take this back into Cabinet, but the party room refused to accept that solution. Sustained opposition from the united nations and their networks continued, affecting the attitudes of significant blocks of voters in marginal government seats. Moreover both ASIO and the Federal police were worried at the way the debate over the right to bigotry, as Brandis had labelled it, was providing fuel for the radicalisation of youth in Muslim communities (even though the RDA does not apply to the Islamic faith as a religion). It was the concern of these anti-terrorist agencies for good order and the declining willingness of their networks of informants to trust the government, that finally pushed Abbott to abandon the changes. The IPA voiced its disgust at his capitulation and vowed to continue the push.

In the 2016 Federal election the government was returned with a massively reduced majority, dependent on Chinese and Korean votes in seats like David Coleman’s Banks, Craig Laundy’s Reid, John Alexander’s Bennelong (lost by John Howard in 2007 on the Asian vote) and Julia Banks’ Chisholm. With 18C saved and their attention focussed by Chinese Christian activists on same sex marriage, the Asian voters swung to and stuck with Liberal candidates or gave Liberal preferences.

This week the announcement of the Parliamentary Committee review of Section 18 has shaken the Asian communities. With same sex marriage now “gone”, attention has come back on the rising racism identified and experienced by these communities, especially the Chinese. Chinese language social media have been heavy with admonitions from senior figures who are castigating those who voted Liberal, to the effect of “this is what we warned you of, and this is how they repay your support”.

Inside the Liberal Party room two forces have been struggling to hold back the IPA push – Julian Lesser (Berowra) has been meeting with the UN group members and arguing for saving the current provisions while making the process more transparent, timely and less intimidating. Coleman and Laundy have been looking to minimise the fall-out in the Asian communities, whose anger levels are rising.

Outside the parliament the IPA cheer squad in News Ltd (especially Jennifer Oriel, Janet Albrechtsen and Chris Kenny) have been focussed on challenging the Human Rights Commission and seeking to have its key players, Gillian Triggs and Tim Soutphomassane, removed from office. The latest cases – complaints against News Ltd. artist Bill Leak for a widely-circulated provocative cartoon on Indigenous family breakdown, and three QUT students for alleged racist slurs on facebook – have added fuel to this situation.

Prime Minister Malcolm Turnbull has wrongly claimed that the AHRC had prosecuted the QUT case (the referral to the federal court, which dismissed the case, came from the complainant). But Turnbull’s own electorate of Wentworth, while not at risk, is a centre for the Jewish community in Sydney, and they have been less than impressed by his role in feeding the bigots’ frenzy against Section 18. One strongly pro-Liberal Jewish group (Australia/Israel and Jewish Affairs Council) have supported the referral to the Committee, while still holding to the validity of the current legislation. The Executive Council of Australian Jewry and the Jewish communities in Victoria and NSW both reasserted their support for the current form of legislation, though they too have indicated they will make submissions to the inquiry.

The preferred way forward may well be the solution that Lesser has offered, with 18C intact but the procedures stream-lined. The Jewish community well knows that something has to be done – its 13 year case against the owner of the Adelaide Institute website, Holocaust denial advocate Frederick Toben – produced nothing. Toben when found to have been in breach, simply passed the site on to another owner, who has proved even more vitriolic in his anti-semitism.

Published in John Menadue’s Blog Pearls and Irritations


European leaders taking cues from Australia on asylum seeker policies

Across Europe anti immigration political leaders are turning to Australia for inspiration on how to reduce the number of people seeking asylum in their countries.

Australia’s asylum seeker policies have attracted condemnation from human rights organisations and many countries around the world. But in speeches given at US President Barack Obama’s Leaders’ Summit on Refugees and the United Nations (UN) General Assembly in September, Prime Minister Malcolm Turnbull urged his fellow leaders to adopt Australia’s strict border protection policies.

In some quarters, the Australian perspective is taking hold.

In September, British Foreign Secretary Boris Johnson echoed the “stop the boats” mantra adopted over the years by Australian Prime Ministers John Howard, Kevin Rudd, Julia Gillard, Tony Abbott, and now Turnbull. Days later, in her speech to the UN General Assembly, British Prime Minister Theresa May spoke of the need for countries to exercise control over their borders.

The European Union’s (EU) deal with Turkey to send asylum seekers back in exchange for aid parallels Australia’s “Pacific Solution”, in which Australian governments outsource their processing of asylum seekers to third party countries.

Spain has developed a system of “border externalisation” similar to the Pacific Solution. Under the Spanish plan, Moroccan authorities in particular intervene to stop asylum seekers from setting sail, or from climbing the wall into the Spanish enclaves of Melilla and Ceuta. Sometimes they use violent force to achieve this.

Seville-based analyst Rafael Rodriguez Prieto has described this as the “Cerberus response”. This is a reference to the mythical three-headed dogs of Hades guarding the gateways to Hell, or in this case blocking the pathways at either end of Europe.

In the face of international condemnation, how does a country justify a hard-line stance on accepting asylum seekers?

The moral architecture behind Australia’s position is based on a number of ideas, from theories about human motivation drawn from behavioural economics to the concept of national self determination.

The right to sovereignty

Australia is a nation state emerging from the resolution of European wars in the 17th century under the Westphalia Treaty. Its legitimacy is based on claims that date back to the invasion of Aboriginal country by the British Crown in the 18th century, legislation enacted by the British parliament in the 19th century and the inheritance of that power by the Commonwealth in the 20th century.

Nation states are designed to define and protect particular ethno-religious polities against challenges brought by competing groups. Therefore, people entering the country who have not been sanctified by the state – “unauthorised arrivals” – can be resisted using force majeure.

In order to defend the legitimacy of the state, it is imagined permissible or even necessary to prevent the unauthorised arrival of those who might seek to claim refuge. In Australia’s moral architecture, this trumps any moral claims made by asylum seekers.

The greater good

In order to justify this action, it is necessary to claim that not only is there the national imperative, but an even greater moral good.

The first argument is the prevention of further deaths at sea as asylum seekers take to boats in an attempt to reach safer shores. The second is the refugee “pay-off”: that authorised refugees (preferably not Sunni Muslims) can be taken in increasing numbers.

Without “unauthorised” asylum seekers “jumping” the (non-existent) queue, there will be wider public support for authorised refugees. The Australian population will feel better about itself, and its reputation as having “one of the most successfulmulticultural societies in the world will be enhanced.

These arguments justify paying people smugglers significant sums to turn their boats around. They permit the paying of significant sums to adjacent states to hold the “illegals”, process their applications and “settle” them.

And they make it possible to ensure and accept that the conditions under which the asylum seekers are “protected” are sufficiently onerous, and the likelihood of salvation so distant, that asylum seekers will choose to return “home”.

Putting an end to people smuggling

The crucial element is the capacity to prevent a person seeking refuge from physically setting foot in the country.

Entering a country unauthorised is not in itself illegal – seeking refuge is an authorised action under international agreements. But nation states can trump international agreements by declaring the “attempt to arrive” as illegal, or deciding that the asylum seeker has no legitimate case for protection.

In Australia, the label of illegality does not result in criminal charges against the refugees, but against the boat crews who bring them. Together these elements are justified on the crude behavioural economics basis of removing the financial incentive for people smugglers.

Will Australia’s framework prevail?

The refugee crisis, generated in part by failed or failing states and likely to be exacerbated by climate change, positions contemporary ideologies of transnational collaboration against the realities of ethnic and nationalist solidarity and self-interest.

It is the beneficiaries of the Westphalia agreement (the advanced nation states of Europe and their clones, such as Australia) who have been most challenged by the emergence of transnational structures of governance such as the UN and the EU, despite their formulation of and participation in them.

What next?

Australia’s contribution to the response of the Global North to the crises of the Global South has already been quite powerful.

Following the Brexit decision in the UK, rafts of public servants in agencies such as the Home Office and the Equal Opportunities Commission have been charged with extracting the country from its European human rights obligations.

The “Australian solution” has already found influence, not only in the rhetoric of politicians such as the UK Independent Party’s Nigel Farage, but in the portfolio of responses being explored in the corridors of Whitehall.

Johnson’s call for an EU naval force deployed in the Mediterranean to turn back migrant boats after they leave Libya to stem the vast numbers of asylum seekers trying to get to Italy is one insight.

For as long as the Libyan state remains in crisis and unable to assert its sovereignty over its own waters, the British navy could take it upon itself to “stop the boats”. Or it could try to force its European counterparts to toughen up their border protection policies.

Either way, it sounds very Australian.

The Conversation

Andrew Jakubowicz, Professor of Sociology, University of Technology Sydney

This article was originally published on The Conversation. Read the original article.