Freedom and its enemies

Have you heard how section 18C of the federal Racial Discrimination Act allows the government to ban books and to detain people for two weeks without charge?

Actually, that’s not 18C. It’s Australia’s anti-terror legislation – and you probably haven’t heard about it, since none of the supposed liberty-lovers bleating about the RDA show any interest whatsoever about the extraordinary infringements on basic democratic rights currently in place.

For instance, today – that is, not in some dystopian extrapolation cooked up by an Australian columnist but right here, right now – the government can force you to wear a tracking device and ban you from overseas travelling. They can limit how you use the internet and other communication systems – and they can do all  that when you having committed no offence whatsoever.

These so-called control orders can be obtained without you being present during the proceedings. You may well be forbidden to know the evidence against you, evidence that can involve hearsay (that is, second-hand, unverified information).

The laws allow police to obtain a Preventive Detention order to put you in gaol without trial. The procedure takes place entirely outside the traditional court system, with the authorities again able to use hearsay, as they imprison you not for anything you have done but on the basis you might commit an offense sometime in the future.

You can be detained for 14 days – and if you tell your friends or family what’s happened to you, you can face years behind bars.

As an assault on essential freedoms, the Anti-Terrorism Act goes, you might say, a little bit further than 18C.

Ben Eltham notes that Justice Bromberg’s finding makes pretty clear that Bolt (whose article contained several falsehoods) would almost certainly have lost a defamation case, had the plaintiffs chosen to bring one. That would have entailed a payout – but, under 18C, all that happened was the Herald Sun was instructed to apologise and remove the (factually incorrect) articles.

Yes, that was all. An apology and the removal of factually incorrect material.

Nonetheless, ever since then, Bolt’s been parading about as a cross between Nelson Mandela and Alexander Solzhenitsyn. And he’s gathered plenty of supporters for his grotesque masquerade.

A search of the news databases for ‘18C’ and ‘race’ brings up an astonishing 312 results from the last year. By way of contrast, a search for ‘control order’ and ‘Anti-Terrorism Act’ gets only seven hits – and five of those don’t relate to Australia.

To be clear, I am not convinced that laws like 18C contribute to the fight against bigotry. Top-down legislative solutions to social problems rarely work, both because they tend to get employed as much against the oppressed as the oppressors, and, more importantly, because they serve as a substitute for the grassroots campaigns through which racism has been historically most effectively combatted.

But what’s the current outcry against 18C really about?

The hysterical response to a law that forced a newspaper to – gasp! – apologise for and retract a factually wrong article comes with Australia facing an unprecedented crackdown on basic liberties.

We know, for instance, from Edward Snowden’s revelations that the intelligence services trawl through the communications records of ordinary Australians, a remarkable intrusion of privacy that our conservative champions of liberty have, by and large, refused to condemn.

Meanwhile, at a state level, we’ve been subjected to a barrage of draconian new laws.

Robert Corr has provided the definitive analysis of the implications of Queensland’s so-called ‘bikie laws’. He notes:

None of the legislation is limited to bikie gangs. The Vicious Unlawful Association Disestablishment Act, for instance, includes references to ‘any other group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal’. The Queensland Law Society notes this could include sporting groups and book clubs; the onus will be on the accused, rather than the state, to prove that ‘the relevant association is an association whose members do not have as their purpose, or one of their purposes, engaging in, or conspiring to engage in, declared offences’.

In Victoria, the Liberals have passed the Summary Offences and Sentencing Amendment Act, which, as Attorney-General Robert Clark admits ‘pose a limitation on an individual’s right to move freely within Victoria … and may, in certain circumstances, limit the rights to freedom of expression (section 15), and peaceful assembly and freedom of association (section 16)’. As James Muldoon points out, the Murdoch press – so concerned about matters of liberty – responded by praising the government on its ‘new laws to smash union picket lines’.

Then, of course, there’s what Ben Saul recently described in the New York Times as ‘Australia’s Guatanamo problem’ – the awkward fact that this country has kept 52 people in detention for up to five years on the basis of secret evidence that they are unable to see or challenge. Saul notes:

In making a case for detention, Australia’s immigration department relies on a security assessment of each prisoner, covering everything from espionage to terrorism and people-smuggling. The burden of proof is not high; detention can be upheld even if the A.S.I.O. deems it relatively unlikely that the person under assessment may commit harm. As the organization is not legally required to disclose evidence, little is known about why specific risk designations are upheld. Many detainees do not know the grounds on which they are being held. Because no court or tribunal can independently test the organization’s claims, it is impossible to know whether the detainees are truly dangerous.

Why, then, are our champions of freedom more concerned over Bolt than the Kafkaeseque nightmare Saul describes?

The obvious answer involves race.

We’ve recently been blessed, for instance, with a self-proclaimed Freedom Commissioner who, rather than agitating for the right of brown people not to be locked up without trial, prefers to hold forth on the injustice inflicted upon white people who are not able to use terms like ‘nigger’.

Now there’s a long history to these claims about white victimhood. Let’s remember how Pauline Hanson built her career, after the Liberal Party disendorsed her over a letter she wrote to a local paper, in which she called for the government to look at ‘equality not colour’, a rhetoric remarkably similar to that employed by Abbott’s people today. In her notorious maiden speech, Hanson explained:

We now have a situation where a type of reverse racism is applied to mainstream Australians by those who promote political correctness and those who control the various taxpayer funded ‘industries’ that flourish in our society servicing Aboriginals, multiculturalists and a host of other minority groups.

Of course, everyone knew that Hanson’s assertion of what Brandis would call her ‘right to be a bigot’ cohered a constituency of racists. As Noel Pearson once said about Howard, the rhetoric of ‘for all of us’ contains the silent clause ‘and not for them’.

You can see the same process taking place today, with Tim Wilson’s cri de coeur about racially-loaded language succeeded in establishing ‘nigger’ as a trending Twitter topic across Australia, a quite extraordinary (perhaps even unprecedented) achievement for a Human Rights Commissioner.

Yet it would be wrong to say we’re witnessing a reprise of Hansonism. One Nation rested upon a plebeian rhetoric quite foreign to Abbott. Hanson stressed, over and over again, that she was a woman who had, as she said in that initial speech, ‘had her fair share of life’s knocks’.

By contrast, the campaign for Bolt is a campaign by the rich and the powerful.

Why don’t the conservatives rallying against 18C also fight against other incursions on liberty? Here’s a clue: Eastock versus Bolt affected a wealthy media commentator, whereas those victimised by the terror laws, the bikie hysteria or the refugee camps are, almost without exception, poor.

Once you recognise that, it all makes sense.

In the name of freedom, the government’s amending 18C – even as it abolishes the already scandalously inadequate monitoring system governing the anti-terror regime.

Rich people get rights. Poor people get obligations – and punishments if they don’t meet them.

When Chris Kenny’s insulted by comedians, the ABC should compensate him – and Tony Abbott will cut funding if the corporation protests. But if you’re not a well-paid insider, you should just suck up whatever insults Murdoch’s hatchet men toss your way.

Q&A must apologise to Andrew Bolt for the comments a guest made – why, Andrew was so hurt by them, he took a day off work to recover! But if the Herald Sun‘s told to say sorry, that’s  creeping totalitarianism.

On the one hand, we have Joe Hockey denouncing the age of entitlement and preparing us for austerity; on the other, we have Hockey’s assistant, Arthur Sinodinos, sitting on the board of a company that spends $164,275 on corporate boxes and $28,738 on limousine hire.

Welcome to Abbott’s Australia, where the privileged get called sir and the poor get called ‘nigger’, and where liberty means a pulpit for those with powerful friends – and indefinite detention for the weak.

Jeff Sparrow

Jeff Sparrow is a Walkley Award-winning writer, broadcaster and former editor of Overland.

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  1. Someone pointed out on Twitter that the Herald Sun wasn’t actually ordered to remove the offending articles but simply to place a correction in them.

    The relevant section in the judgement reads: ‘I can well appreciate Ms Eatock’s purpose in seeking to have the Newspaper Articles removed from the online archive of the Herald Sun. There is good reason to try and restrict continued access to, and dissemination of, the Newspaper Articles by the public. However, it seems to me that, in the age in which we live, any attempt made to restrict access to an internet publication is likely to be circumvented by access being made available on online sites beyond the control of HWT. Ms Eatock’s legitimate objective would be better served by maintaining the Newspaper Articles on the online site to which people looking for them are most likely to go and including at that place a notice of the kind offered by HWT and to which I will refer further below.’
    In other words, all this huffing and puffing is about a judgement that ordered a newspaper to apologise and run a notice on a factually incorrect article.

    1. Just one further correction… they weren’t even ordered to apologise!

      From the judgment:

      465. There is force in the contention of HWT that an apology should not be compelled by an order of the Court because that compels a person to articulate a sentiment that is not genuinely held. An apology is one means of achieving the public vindication of those that have been injured by a contravention of s 18C. The power granted to the Court to require a respondent to redress any loss or damage is a wide power. There are other means by which public vindication may be achieved. …

      467. Whilst I will not order HWT to apologise, in the absence of an appropriate apology, I am minded to
      make an order which fulfils the purposes which I have identified.

      468. My preliminary view is that a corrective order should be made which would require HWT to publish a notice in the Herald Sun in print and online. The terms of the notice would include an introduction which referred to this proceeding and the order requiring its publication and set out the declaration made by the

  2. Thanks for this Jeff; timely and necessary. The ‘iron heel’ aspect of Australia’s political culture tends to be hidden historically……at the turn of this century, historian Les Louis revealed via his archival excavations, plans in place from the early 1950s through to the early 1970s by ASIO to intern selected leftists in time of perceived ‘national emergency’, the list blowing out as timke went on; in the wake of the Hilton Bombing in 1978, Prime Minister Fraser sent in the troops and placed the township of Bowral in the Southern Highlands of NSW under a strange sort of ‘martial law’ . Yes, Virginia, Australian political culture does have a profound and unsettling anti-democratic potential.

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