Features Australia

You’re no John Stuart Mill

On the constitutional preamble and section 18C, the Attorney-General is not off to a good start

15 February 2014

9:00 AM

15 February 2014

9:00 AM

Our Attorney-General, Senator George Brandis, takes more than a little pride in painting himself as an old-fashioned classical liberal. Think of the great philosopher MP John Stuart Mill and you’ll have the general idea. That is the strand of right-of-centre politics with which Mr Brandis identifies. Yet when it comes to some of the big issues of the day, our Attorney-General’s liberal scorecard ain’t good. J.S. Mill would not be impressed.

Start with the government’s push to amend the preamble to our Constitution to recognise indigenous Australians. In response to what I think are serious and valid concerns — ones, for instance, related to how future top judges might use such an amended preamble to undercut democratic decision-making — our Attorney-General responds with fatuous talk about Tony Abbott being Australia’s most authentic constitutional conservative which ‘should reassure conservative Australians that it is a change for the good’.

In other words, all us doubters should just trust Big Tony. Really? That’s the response of a classical liberal? Just trust the great man and stop thinking for ourselves? I don’t know what sort of right-of-centre voters Mr Brandis hangs out with but the ones I know tend to be (like Mill himself) fierce individualists who want arguments in favour of the policy, not appeals to reverse ad hominem fallacies and ‘we must trust you’ genuflections in the direction of the Dear Leader.Maybe that works in some of Australia’s unions these days, but if that’s the game plan for winning any upcoming referendum, then it will lose. So that’s zero for one for Brandis.

Next is the government’s pre-election pledge to make changes to section 18C of the Racial Discrimination Act, the Labor-enacted hate speech law that was used (illiberally) to go after Andrew Bolt. Now in many opinion pieces and speeches Mr Brandis has laid out his liberal credentials. He has assured us that he and this government are on the side of free speech. Indeed, that assurance was one of the bases on which I voted for the Coalition.

Alas, Mr Brandis is now purportedly leaning away from a total repeal of section 18C. Recall that this section has four triggers that undercut free speech. Those triggers are the words ‘insult’, ‘offend’, ‘humiliate’ and ‘intimidate’. These give people prepared to go to court plenty of ammunition to silence others whose criticisms they dislike (think Andrew Bolt here or Mark Steyn in Canada, where similar laws existed).

But rather than get rid of all four, and repeal the entirety of 18C (which analogously did happen in Canada federally), the talk now is of how the government might keep the prohibitory words ‘humiliate’ and ‘intimidate’ and either repeal or replace ‘offend’ and ‘insult’. Let me be blunt. Such a craven compromise is in no way at all the choice of a government committed to free speech. It basically is window dressing, leaving the Labor inroads into free speech pretty much where they are.

Try this test Mr Attorney-General. Tell us precisely what the difference is between offending or insulting someone and humiliating someone. The fact is our AG cannot differentiate them. You can’t even slide a piece of paper between these concepts. So if this government opts for this sort of half-hearted compromise, it cannot with a straight face also pretend such cosmetic changes somehow meet its free speech pledge. Same trial, same judge, same Andrew Bolt, and Bolt still loses if all that is changed is that the focus is on ‘humiliate’ rather than ‘offend’ or ‘insult’.

I won’t even bother here to do more than mention that the Attorney-General rather incredibly seems to be mooting adding, yes adding, some brand new speech-restricting criminal law provision — the old one being for him too narrowly drawn or something.

Why, you might wonder, are we hearing these backtracking noises? Alas, I fear the government just can’t be bothered to take on the vested interests. Nor is this pattern unknown with the Coalition. Labor brings in some awful law, say Victoria’s democracy-enervating Charter of Rights; the Coalition is all against it while in opposition; but cometh the day when it forms government and out the window goeth its backbone and commitment to pledges. Likewise any half-hearted treatment of section 18C would amount to much the same thing. It certainly would not amount to honouring the Abbott government’s pre-election free speech rhetoric. And it darn sure wouldn’t make Mr Brandis the heir to J.S. Mill. So that’s zero for two for the Attorney-General.

And yet there is an area where Mr Brandis has acted powerfully on behalf of freedom and deserves praise. This is his appointment of Tim Wilson as a new Human Rights Commissioner. Personally, I would have disbanded the whole Human Rights Commission, so one-sided and so slanted is it in favour of unelected judges and international elites and against elected parliamentarians. But a good second best was to appoint someone whose views are so at odds with the rest of the commission.

Of course, the inevitable complaints about how Mr Wilson was appointed emerge from executive directors of Human Rights Law Centres. These sort of people lament that Mr Brandis did not consult the commission itself in picking Wilson and that Wilson was a Liberal party member. They then roll out the usual talk of independent appointing bodies, merit-based selections and the need for a commission broadly representative of society.

Well, not to put too fine a point on it, but I can assure readers that Australia’s Human Rights Commission is in no way at all ‘broadly representative of society’ — at least not unless your only concern is skin colour and type of sexual organs. No, this commission was, and still remains, a bastion of left-wing views, pro-bill of rights beliefs, equality favouring over freedom and more. Its positions are nothing at all like those of the majority of Australians, including the over half who voted for the Coalition. And don’t forget it was this commission that backed some of the previous government’s egregious but ultimately unsuccessful proposals to undermine free speech even further.

So that’s one out of three for you Mr Brandis. Even if we count the just announced royal commission into union corruption, no doubt a good thing, that still only makes for a bare passing grade.

Got something to add? Join the discussion and comment below.

James Allan is professor of law at the University of Queensland and author of a forthcoming book on democracy in decline.

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Show comments
  • David Barrow

    Here’s a radical idea: Andrew Bolt did humiliate and insult many lighter rather than darker skin Aboriginal people who banded together in a class action to confront what Bolt had written about some high-profile people fundamentally alike on his powerful Herald Sun Blog and newspaper columns.

    Some dictionary definition were included at para 262 of the Eatock v Bolt judgment:

    • “To lower the pride or self respect of; cause a painful loss of dignity to; mortify.”
    (Macquarie Dictionary)
    •”To make low or humble in position, condition or feeling; to humble.”
    (Oxford English Dictionary)

    •”1. To make timid, or inspire with fear; overawe; cow.
    • 2. To force into or deter from some action by inducing fear.”
    (Macquarie Dictionary)
    •”To render timid, inspire with fear; to overawe, cow; in modern use especially to force to or deter from some action by threats or violence.”
    (Oxford English Dictionary)

    Depending on the context, those can be some nasty types of attacks on people. Especially when done from a powerful voice. Calling bunkum on Andrew Bolt: It is a nonsense for Bolt to decry limitations on his freedom of speech when he continues to enjoy such a powerful media platform.

    Also at para 302:

    Intimidation was Not considered to be felt for some members of the Aboriginal people in the class action because “the representative member of this sub-group is likely to be mature aged and experienced in Aboriginal issues, and thus likely to be resilient to being intimidated by the imputations conveyed.”
    This evidences subtly in applying the Racial Discrimination Act.

    • Andrew Hows

      Eh? I don’t think many people are arguing that he didn’t humiliate people. They’re arguing that humiliating people shouldn’t be illegal (some are also arguing that they deserved to be humiliated).

      One of many reasons this is wrong, is that humiliation is totally subjective, and unprovable. I mean, Bolt probably found his experience at court, and the judgement against him humiliating – he should be able to sue the state for such an egregious violation of his right to not have bad things said about him.

      • David Barrow

        Hello Andrew,

        In Eatock v Bolt class action judgment

        Justice Bromberg comments at para 253 that the words “offend, insult, humiliate or intimidate” in the RDA were borrowed from Sexual harassment legislation.

        Context is important as to what is meant by a subjective test. You can see in a sexual harassment context that offence and insult that aggressively target a person might merit a message that this is not okay.

        It seems to me that this intent may not have carried over so well with the words ‘offend’ and ‘insult’ to racial discrimination. That does seem worth exploring as, for instance, the Human Right Commissioner Gillian Triggs indicated on Lateline:


        The danger as I see it and also a number community groups is that questioning subtilties about ‘insult’ and ‘offend’ may undermine the broader intent of the Racial Discrimination Act. To question just the words may weaken the message that to harm people in a nasty way is wrong.
        As for your comment that Andrew Bolt might feel humiliated by the court action. Well, context again is important. Andrew Bolt is not a minority voice. In fact he is one of the most powerful and strident voices across all media platforms in Australia.
        Humiliation itself is not usually grounds for some intervention. Context must be considered. The convicted criminal is humiliated. The swimming star who duds in the Olympic finals is humiliated. That’s one thing. The person who is humiliated in the sense of being degraded in the workplace or because they have a disability or for nasty barbs at the colour of their skin is a whole other thing, with intervention often well justified. And if the person who visits that sort of degradation onto a person less powerful themselves feels some humiliation for a judge and the community saying that is not okay, well that’s part of justice in my opinion.

        • Warwick

          If an individual is only very marginally Aboriginal then it is perfectly valid to raise the question, “Is this person really Aboriginal?”

          If this very marginally Aboriginal person, who is leading a prosperous middle class life in mainstream
          Australian society, enters into the contest for, and receives, a prize that was intended to bring an advantage to an Aboriginal person living as a fringe dweller, or as a member of a deprived remote ghetto, then it is a fair thing to do, to raise the question, “Is this person really an Aboriginal of the type for whom this prize was established?”

          Since a very large amount of public discourse is devoted to the subject of the condition of the Aboriginal people, and billions of taxation dollars are spent attempting to improve the condition of these people, then it must be the first question to be asked; “Who really is an Aboriginal?”

          It is claimed that Andrew Bolt’s article contained inaccuracies and because of this it was not worthy of being treated as a serious discussion.
          But this is absurd; although there were inaccuracies they were not major and they in no way altered the thrust of the piece.

          Of course the Judge of the case reached a different conclusion. Not only do I consider his judgement to be wrong, I claim that any fair minded person who considers the matter seriously will also disregard political correctness and reject his judgement.

          In fact I regard it as obviously and undeniably wrong; politically correct but wrong as a matter of justice. And the judge’s verdict that Bolt be not allowed to write on the matter again is simply dictatorial censorship.
          I agree with Professor Allen; Brandeis has done a very poor job revoking this rotten law.

          Brandeis put his foot into it by stating, “An individual has a right to be bigoted.” He was right as a matter of freedom but it was a lousy piece of polemic on his part. And once he’d made that statement in the course of a campaign to which he’d given no thought at all, his cause was lost.
          He aught to know that this is a political matter and that he is obliged to use all the political tools available; rhetoric, spin and all the other black arts.

          He is, after all, a politician.

  • David Barrow

    Let one thousand flowers bloom

    “Brandis won’t restore our free speech at all” says Andrew Bolt:


  • Hugh Halloran

    The main difference between offending and/or insulting someone versus actually humiliating them is how good you are at the first two and how bad they are at dealing with their resultant feelings. Intimidation implies a more physical threat of potential harm, and, I’d venture to say with no legal training, is dealt with under criminal rather than civil law.