A hollow debate

Monday, 7 April 2014 

There are some important issues arising from the government’s move to repeal 18C in the Racial Discrimination Act. Unfortunately they are obscured by posturing anti-racism on the left and posturing libertarianism on the right when in reality it is about neither.

Even when the reaction to Brandis’s move to repeal 18C is genuine, there is a missing centre to the argument that means it struggles to make the point it wants. An example was Senator Wong’s very personal response to Brandis with her recollections of growing up in outer Adelaide in the late 1970s and the racism she experienced.

The first point to make is that despite her experience of racism being highly personal, its significance comes from its social weight. The nastiest invective over someone’s pasty white skin will never have the impact of even a casual racist remark because there is no social significance to it. It is the social element of a racist comment that gives it a bite that goes beyond the individual saying it. So let’s be clear from the start, as a problem, racism is ultimately a social one – and a social problem requires a social solution.

This comes to the second point that means the very painfulness of the recollection undermines her argument somewhat: the Racial Discrimination Act was in force all through Wong’s childhood in Australia. It is a similar point made by Waleed Aly in an interesting piece that has been upheld by supporters of 18C while ignoring much of what was in it. Aly’s view that 18C makes little difference to the racism actually experienced at a social level should not surprise, as it is not really what the RDA was really designed to do.

The Racial Discrimination Act of 1975 was the culmination of measures introduced by the Coalition and Whitlam government in the late 1960s and 1970s to reform the overtly racial elements in Australia’s institutions. It followed similar moves in the UK over the Empire and the US over southern segregation, partly prompted by defensiveness in the face of third world liberation movements.

For Australia, this meant dumping the White Australia Policy and removing the formal segregation of indigenous peoples. As mentioned in parliamentary discussions at the time, a key motivation was to give Australia’s institutions a clean bill of health in international eyes and allow it to avoid the ostracism being experienced at the time by South Africa and (then) Rhodesia.

The moves to remove segregation for indigenous peoples and outlaw racial discrimination had been happening piecemeal across the states during the 1960s. However, two important developments in the federal government’s constitutional powers in the late 1960s allowed it to take over the process from the states and bring it more in line with international conventions.

The first was the extension of race powers to include indigenous people in the widely misunderstood 1967 referendum that allowed the land rights system to be established. The second was Australia’s signing of the 1969 UN Convention on racial discrimination, that allowed the federal government to use its “external affairs” powers to bring in unified over-riding legislation under the RDA.

As a result of this, there was always a crucial contradiction in these measures that makes race such a confusing debate in Australia today. On the one hand, the RDA was supposed to remove racial discrimination in the legal and public sphere. But the introduction of land rights required the extension of the race powers to include indigenous people and the setting up a racially-based legal structure around it.

This racial basis of law is not only embedded in the Constitution and land rights, but as the notorious Aurukun case highlighted, in the judiciary’s application even today. Indeed, so embedded are they, that the race powers cannot be removed as they pertain to indigenous peoples, but rather must be dressed up as they are in the proposals for a Constitutional Preamble, to make race-based laws acceptable in the 21st century what wasn’t to progressives in the 18th.

This fundamental conflict between non-discriminatory and racially based laws, especially when it comes to indigenous people, had important implications. As the racial basis of land rights became more apparent after the Mabo decision and the Native Title Act of 1993, so to manage the conflict, the focus of racial discrimination shifted away from the public and more to the personal sphere. The contentious clause 18C, with its unusual emphasis on the personal feelings of the victim, was originally rejected by the Senate when the RDA was introduced in 1975, but brought in following Mabo and the commissioned reports on racial violence in the early 1990s.

It is also what makes discussion about race in Australia so confusing, because the broad-based acceptance of the racial basis of the land rights settlement, especially by the left, means the left accepting ideas that would have historically been associated with the right. This was fully on display in the Bolt case where both sides were arguing over the definition of racial identity in a deterministic manner (slightly obscured by Bolt getting the facts wrong) that was based on birth lineage and culture against Bolt’s cruder skin tone definition.

Discussing race in terms of culture in a deterministic way (as opposed to the normal way of being something that can be appropriated like, say, Mitsuko Uchida can appropriate a white European artist like Mozart) may seem more left wing. But anyone familiar with the history of racial thinking in the early 20th century (or even used by the South African regime in later years) would know the important part that culture has played in arguing for racial determinism.

This contradiction, both in terms of legislation and the way it is discussed, exploded to the surface in June 2007 following the publishing of the Little Children Are Sacred report, which claimed widespread sexual abuse of children in the NT indigenous communities. Yet the claim was made without proof, nor, after thousands of medical checks, was any ever found.

For this blogger, accusing someone of sexually abusing children without proof is pretty vilifying. But this was vilification not to any individual, but across whole communities. And it was largely racially-based. While the report claimed that white mining workers might also have been guilty, the focus was on the problem with indigenous men, especially with alcoholism. Certainly the measures applied were wholly racially-based, requiring the suspension of the RDA so racially based welfare measures could be applied. The report and the subsequent intervention brought out the full contradiction between anti-discrimination law and the racially based way the land right communities were considered legally and practically.

This is not to imply that the report’s authors were racist, by any means. But there were problems in the thinking behind the report that meant it could be used in the way it was.

The first is a particular view of human behaviour that was summed up by one of the report’s authors. Pat Anderson, shortly after it came out, when she said:

Where those conditions prevail, we know from the literature and certainly from our findings, where there’s unemployment, poverty, alcoholism, drug-taking, over-crowding, unemployment, you can guarantee that those children at some point are going to be severely at risk and eventually going to be sexually abused or abused in some way. The end of the final degradation of course, is sexual abuse of children.

This view that sexual abuse of children is guaranteed when there is unemployment, poverty etc etc. is deeply misanthropic as it implies that when social norms break down, the urge to sexually abuse children is in everyone. It is why the report didn’t need any proof of actual widespread cases. Indeed so strong was this presumption, that the lack of evidence was considered “concerning”.

The second more obvious problem was, of course, the authors’ astounding political naivety: not only as to what might happen when such misanthropic views were applied in a racial context but the failure to see that the seriousness of the charge would provoke a whole different reaction to one of poor school attendance or health (which, after no widespread sexual abuse was found, is what it eventually became).

This dark view of human nature is hardly confined to the report’s authors or only in a racial context. For a start, the view of the “undeserving poor” needing controls on welfare in the Intervention was rolled out by Labor in trials in 2012 to non-indigenous communities as well, and has been promoted by “new thinkers” such as Latham. It has also had support from the Coalition, and Abbott’s frequent visits to remote indigenous communities should be seen in the context of this potentially far reaching change in the relationship between government and society – based on an unflattering view of the latter.

It also finds its echo in the ant-racist arguments put by supporters of 18C, some of which seem to be contradictory: claiming that on one hand racism is a problem, and on the other that 18C has been effective in fighting it. The way this contradiction is managed is by talking of an “undercurrent” of racism that will pop to the surface should controls like 18C be lifted. As Aly suggests, it’s not an “undercurrent” to those who experience it. Racism either exists or it doesn’t. While it obviously does, this prevailing view of an undercurrent of dark forces in society is all too prevalent with anti-racists uninterested in appealing to society to deal with it.

This type of view is well set out by David Marr who has in the past spoken of the “savage racism” of the electorate on asylum seekers, which, surprisingly, never seems to translate into electoral success over four years of being targeted by every political leader. In this week’s Saturday Paper, he’s back on it again, this time using the “millions” of racist votes as the rationale for the Coalition repealing 18C. Again he can find no polling that shows such an issue is a priority for voters, mainly because none exists.

But Marr does at least raise the question as to why the government is doing it – and in such a cack-handed way by appealing to a libertarianism that is just as hollow as the left’s anti-racism.

The right to free speech emerged as a demand from progressive forces at the end of the 18th century that were a social challenge to authority but saw that challenge in a political way. These days the left is not a challenge, certainly not a social one, and so have lost interest in free speech. Indeed, in appealing to authority to do the job they cannot, like fight racism, they tend to be nowadays the more censorious end of the political spectrum.

But the demand for free speech hasn’t gone away. Instead it has now become the preserve of right libertarians. But in the hands of the right, it is hollow. Since, being the right, they are not interested in challenging authority, they can never answer the question, free speech for whom? The best that Brandis can think of is “for bigots”, an answer that, despite what Marr thinks, is unlikely to enthuse the electorate nor even make his own party room feel comfortable. So why has the government gone down this awkward libertarian route?

The Coalition has never been entirely comfortable with either the original land rights compromises or the various accommodations around it such as the Native Titles Act, generally opposing them, even if they allow them to stay on the books once in. This is not because they are racists (even if some indigenous MPs have apparently only just discovered some are) but because of the right’s heightened sensitivity to the authority of institutions, which they see such measures compromising.

Yet this does not mean they can go back, as Abbott is finding to his cost on Imperial honours. Once that authority’s gone, it’s gone. So they have nowhere really to go but what for them is an entirely negative libertarian argument of what should not happen rather than what should. In the case of 18C, the libertarian problem within Judge Blomberg’s opinion in the Bolt case was that it wouldn’t have even mattered if he was accurate, or in good faith, but that even the tone could be sufficiently injurious to feelings to cause offence. While this didn’t affect the outcome of the Bolt case (Bolt’s research sloppiness was sufficient), it has given a libertarian opening for the broader right project to rejig the racial compromise.

In the case of 18C, it has resulted in a bizarre solution, as Aly notes in his piece. Instead of the judge over-riding the plaintiff and determining what constitutes vilification, it is instead being determined in a negative way, “not by the standards of any particular group within the Australian community”. As Aly points out, “any particular group” can mean racial minorities, making it, probably unintentionally, in his words the “whitest piece of legislation” he’s seen.

This is a mess. The government has tried to use libertarian arguments to nullify and roll back a piece of anti-racist legislation but has nowhere to take it back to. It proposes free speech that would only be of use to a social force that would challenge the status quo on, say, racism, but no such force exists. It is no wonder that Abbott says he is “open” to change on this, just as he was “open” to dumping cuts to education funding within weeks of electoral victory, and he probably wishes he could be open to change on imperial honours now.

This government has a problem of authority and hiding behind empty libertarian arguments won’t work. Fortunately for Abbott, he still has one tool: what is in this blogger’s view the most significant vilification on racial grounds in recent years, that came from a naïve, misanthropic and deeply flawed Labor-sponsored report. For the communities targeted, there is no legal redress, nor even an apology forthcoming. At least we can take comfort that its ramifications are now being more broadly applied in a non-racial way. Well, not really.

Posted by The Piping Shrike on Monday, 7 April 2014.

Filed under The Australian state

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21 responses to “A hollow debate”

  1. rivelle on 7th April 2014 9:00 am

    Great essay, Mr Shrike.

    Shared on Facebook.

  2. The Piping Shrike on 7th April 2014 9:13 am


  3. David Jackmanson on 7th April 2014 10:00 am

    Senator Wong may have lived in Adelaide’s outer suburbs in the late 70s, but by 1984 the family was living in the comfortable inner-southern suburbs near Highgate, Malvern and Mitcham and the children were attending the elite Scotch College.

    Source: I attended the 1st Malvern Scout troop with her brother Toby from 1984-86.

  4. Riccardo on 7th April 2014 11:39 am

    Yes, good article. Makes the point that racism and racist policies have been projects of both the Left and Right over the years, to suit their different agendas.

    Of course the Left and Right themselves are mutating beasts. Once the Left meant the ALP/Industrial movement, an awful racist and sexist conglomerate that sought to keep white men employed by removing their racial competition, and raising their wages. The Right, being the opposite, had no problem bringing in dark skinned people, provided they kept to the lower rungs.

    Anti-semitism has had fans on both sides of the divide over the years as well.

    Pandora’s Box has more boxes inside it, so it is a compound ‘be careful what you wish for’. The Libs are noticing the Jewish lobby not too happy about the open season of bigotry – that could be used by white supremicists and Muslim fanatics alike. And they had spent so much effort burying Pauline Hanson only to have her ghost reappear.

    A move to ‘free speech’ could have people calling for attacks on fanatical Catholics and their propensity for tolerating child abuse. I only need the Bolta’s article and the judgement against it as a template to work out exactly what I can get away with if 18C is repealed.

    In the long run, I wonder why hard headed Libs want to head down Tea Party Street – the same place Republicans go to avoid being elected – dispising Hispanics who might have voted conservative from their opposition to Castro/Chavez, or dispising the growing wealthy Black or Asian voter blocs.

    In the US it is all about gerrymandered preselections, but we don’t have that excuse here.

  5. Riccardo on 7th April 2014 11:47 am

    It would be better if we were NZ. Admit the original invasion of the land and occupation were wrong – and limited as much by law applying to white people as black.

    Then force the Australian Government to an actual settlement.

    Not based on race as such, but on recognition of the continuing existence of the original people groups and illegal dispossession.

    Don’t make this case in an Australian court – as Mabo judgement said, it is impossible for the Queen to argue against her own sovereignty.

  6. Geordie on 7th April 2014 1:10 pm

    I feel that your remarks, Mr Shrike, would be far more persuasive if you had the courage of your convictions and published under (or over) you own name … it’s the very anonymity of blogging and web communication that leads less scrupulous souls, elsewhere, to abuse the privilege of this form of publishing with language and points of view that the RDA and Defamation Law were conceived to address. Geoff Sloan, Alice Springs

  7. Chris on 7th April 2014 1:49 pm

    You seem to be against land rights. I can see why, but the danger in what you are saying is that you play into the hands of the right who want to dismantle it.

  8. The Piping Shrike on 7th April 2014 3:41 pm

    A land rights settlement based on racially based laws that was supposed to be about dealing with racial inequality seems to me a messy way of going about it. Certainly inequality still went on, both inside the land right communities and the majority of indigenous people living outside of it.

    The problem is that since the intervention, the pressure on land rights has been on a basis that reinforces that inequality even more. So as long as this remains about inequality I don’t think it can fall into the hands of anyone who doesn’t intend addressing it.

  9. F on 7th April 2014 3:52 pm

    From a legal perspective, at least under our system, private property rights squash communal rights. Did those who originally conceived of land rights know this?

    Land rights is messy, and the outcomes for indigenous peoples have been less than satisfactory.However, Chris is right. Reform would not be to the advantage to Aboriginal people(or even to the vast majority of Australians)

    Its interesting you bring up Langton. She was an out-spoken supporter of the initial intervention (as were many others) but has now turned face. From what I have been reading she has begun to suggest that Aboriginal peoples legal position be completely changed so as they can never be singled out as a group again.

  10. guy on 7th April 2014 4:40 pm

    F makes a good point. If indigenous land rights had been framed as common law rights, they would not be based on “race”, nor would they have been so easy to squash. Our law, especially as applied by the right, usually recognises ownership as the King of all legal rights. Not if you are aboriginal though.

  11. guy on 7th April 2014 5:53 pm

    There is also an interesting contrast between the libertarian ethos here and the approach on boycotting goods for environmental reasons or public servants tweeting. Basically the same libertarian approach that Commissioner Tim takes, where it only applies to things privileged white men say. Not the kind of libertarian approach that is troubled by indefinite detention, say. And I imagine that any vilification of rich white men would be followed pretty swiftly by a defamation writ.

  12. The Piping Shrike on 7th April 2014 8:12 pm

    At the time, the land was granted on racial/tribal grounds, ironically for one reason so as to limit indigenous rights over commercial use of it.

    Any reform would depend on the context under which it happens and, as I argue here, the context is not good.

  13. Riccardo on 8th April 2014 2:11 pm

    The same argument applies in the USA.

    The whole notion of inalienable human rights in their declaration and constitution were shown to be the garbage that they are – the country was engage in both slavery and dispossession of native peoples – and was subsequently to embark on pointless foreign wars.

    Australia’s moral and ethical basis for existence is flawed in the same way. It pretends to be not based on dispossession and invasion – but it cannot be rationalised in any other way. Any legal or political niceties that try to dance around that reality do not change it.

    I think TPS is right in one sense – the west was poorly equipped in the battle of ideas post WWII with awful situations like South Africa and Rhodesia and the American South and oh-yes, Australia.

    We like to imagine we are not any of the above, but we were, and unlike South Africa which needed a truth and reconciliation commission, the US which needed hated federal intervention in the South, and Rhodesia which collapsed completely, Australia got away with it and now political actors pretend our experience was somewhat different.

  14. guy on 9th April 2014 7:20 pm

    I don’t think it is the case that Australia pretends not to be based on dispossession. Terra nullius is dead. Invasion is a harder claim to justify, as what was invaded? Tends to be a term applied to polities.

    However the indigenous story will surely not be politically relevant much longer, given that it is hardly likely to be a top priority for new arrivals. The occasional column in the Guardian does not count. Can’t be compared to South Africa with an 80% black population.

  15. Riccardo on 10th April 2014 6:53 am

    Of course Australia is based on dispossession and invasion. And fraud. There were 511 separate people groups organised into clan and culture entities, and some of them still exist largely intact. They mutually recognised, which is sufficient under laws of the day to suggest they were states.

    Australia is a ethnological disaster. Even the USA, which doesn’t always have my respect, has a heroic creation myth. 13 colonies, oppressed and terrorised by their colonial master, united and overthrew them and built a nation state on an entirely new basis. You could have written a story like that into the Bible.

    And Australia? A bunch of self serving colonial politicians, lickspittle to a distant colonial master who hardly cared and was probably irritated by the whole thing, engineering a vague compromise that really didn’t suit anyone.

    To make it work, we are left with institutional racism in its migration policy, a dud federal capital no one wanted, an industrial relations system that produced 80 years of conflict and economic losses, until the legendary Paul John Keating knifed it, and a host of other issues.

    For our own heroic myths, we get stuck with one. Of being compelled to join a hopeless and ill conceived invasion of Turkey, which is successfully foiled at the cost of Australian lives.

    Australia could have been so much more than it was and is, starting with not having so comprehensively denied its pre white history, culture and peoples.

  16. Riccardo on 10th April 2014 7:03 am

    See it is the settlement colonies that have the identity issues. The plantation colonies justifiably wantd their colonial masters gone because of the exploitation going on.

    The trade colonies tends to last longest, with least grief, because most people were profiting from it. Most outlasted their need, because the original reason for setting them up eg trade embargoes in China, or poorly developed infrastructure nearby, like the Singapore hinterland, or religious problems in Arabia, these reasons eventually passed.

    The removal of colonial powers imparted authority and prestige to the generation who did it, whether Lee Kuan Yew or Robert Mugabe, but Australia had no such class of people. Edmund Barton doesn’t roll off the tongue the way George Washington does.

    Our political class lacked authority from the start; were overtly and then covertly seeking a mandate from London, then when that collapsed after the fall of Singapore, from Washington, and now Abbott is over in China getting fresh approval from the new masters. Look how the Murdoch press is lapping it up.

  17. F on 10th April 2014 9:43 pm

    Riccardo – Nobody denies there was dispossession. I sat through a Citizenship ceremony which dwelt at length on the fact. I think you are misusing the word invasion to make a political point. There was hardly anything as organised as an invasion, but a chaotic process of squatting, illegal expansion. I suppose you can talk about an invasion of cane toads, so perhaps you can apply the same term to this inchoate process, but it is misleading and you are trying to be emotive to push your views. And your definition of nations is rather questionable!

    Australia is hardly a failure, being one of the world’s wealthiest countries, and with virtually no racial tension considering the massive levels of immigration and quickly changing ethnic mix.

    What’s so wrong with a process of muddy compromise? That is hardly unique to colonial societies. What country in the world has maintained a coherent culture without outside invasion and domination? None that I can think of. It only takes time for the wounds to be forgotten and for the tenuous myths of creation to solidify into bastions of authority.

    While it might have been nice for Australia to have had a culture which incorporated aboriginal heritage, I don’t believe that this has poisoned the well of Australian political authority. It’s not like the house in Poltergeist, built on an Indian burial ground and cursed forever. I don’t think there is any real impact on the Australian political process – it’s a fringe issue. And one has to wonder whether indigenous culture could be subsumed into the mainstream in the way you seem to suggest. For instance, some sacred indigenous culture is restricted to initiates. And of course, the whole concept of being indigenous is based on descent and is exclusionary by nature.

    The reason there has been no great revolution in Australia is that we have not needed one. We have been very fortunate. If Mugabe and Lee Kuan Yew are your models of political authority, I think I can handle Mr Abbott and Mr Shorten without that air of authority.

  18. Jim on 11th April 2014 9:43 am

    With respect, the authours of the Little Children are Sacred report were not misanthropic or naive or anti-welfare. They had extensive frontline experience in the communities concerned, over decades, and they were not pro-intervention. But they did try to grapple with an intensely concerning situation. Separately, the suggestion that Land Rights some how contributes to poverty and dislocation is incorrect, have a look at communities without land ownership in the NT for example. In my view the intervention would have happened regardless, whether or not the LCAS report was released.

  19. The Piping Shrike on 12th April 2014 9:14 am

    I think the attitude quoted above is misanthropic, but certainly not confined to them. It explains though why the claim was made without proof. Also, to think that a national emergency would not result in extraordinary measures being taken I think is naive.

    But I certainly don’t think they were anti-welfare. In fact part of the naïvety was thinking the report would be just another claim for more welfare.

    I don’t think Land Rights had contributed to poverty and dislocation, but has self evidently not resolved it. As you say, land rights has done nothing either way for the majority in urban, semi-rural areas. But I think the racial thinking behind it makes the social inequality appear a cultural issue.

  20. No Crap App: w/b 7 Apr 2014 | No Crap App on 12th April 2014 1:40 pm

    […] Piping Shrike: A hollow debate […]

  21. guy on 14th April 2014 10:09 pm

    Unrelated post but getting annoyed by smugness of Tony Jones. Seems like Australian commentariat does not care what the terms of a trade deal are, but it is an achievement under any circumstances. Good grief! Why not find out what the terms are, and perhaps even report them. Perhaps that would take too much work compared with just having an opinion.

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