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