It is time we re-examined the legacy of the late
Thumpa Sheil, the rabbit farmer and senator whose unfashionable views on
Apartheid, fearlessly expressed, made him the the shortest-serving minister in
Australia. Two days of notoriety in 1977 overshadowed Glenister Fermoy Sheil’s
other contributions to civic debate, which is a pity, because Thumpa was
nobody’s bunny. Over the course of his 13 years in Australia’s federal
parliament, he was a net contributor of common sense.
His
finest hour came when Gough Whitlam’s Labor government tabled the Racial
Discrimination Bill in 1975. Even as the conservative opposition was preparing
to bring down the government by vetoing the budget, it was too nervous to back
its instincts and block Australia’s first human-rights legislation.
It
was left to Thumpa, and a handful of other crazy-brave senators, to raise
questions about the bill’s questionable constitutional validity and its threat
to free expression. Only Thumpa and his backbench chums were prepared to defend
the reputation of the Australian people, impugned by the tabling of legislation
designed to cleanse society of ingrained racism.
‘The
passage of this bill would take some fundamental rights away from us, such as
the right of free speech, free discussion and publication’, Thumpa told
parliament during the bill’s second reading speech. ‘Far from eliminating
racial discrimination by making it illegal, the bill will highlight the
problems between the races and create an official race-relations industry with
a staff of dedicated anti-racists earning their living by making the most of
every complaint in much the same way as does the Race Relations Board in the
United Kingdom.’
‘This
bill’, Thumpa continued, ‘will create yet another large and expensive federal
government department. It will be headed by a race-relations commissioner with
the status of a High Court judge and with powers similar to those used in the
Spanish Inquisition.’
Thumpa’s
speech was dismissed as ‘Neanderthal grunts’ by Labor’s Jim McClelland, but
today his predictions appear to have been dispiritingly accurate. He was
getting ahead of himself with the line about the Spanish Inquisition, however;
that would require another legislative adventure in the form of the Racial
Vilification Act 1996. This was the legislation which newspaper columnist
Andrew Bolt was found to have broken in 2011 by suggesting that the rules for
claiming Aboriginal identity are not exactly black and white.
That
flawed and illiberal hate law bill, and numerous other audacious acts of
human-rights mission creep, went through virtually on the nod. Astute MPs on
both sides of parliament were aware of its illiberal implications, but only the
crazy brave like Thumpa are prepared to stand in the path of the human-rights
bandwagon in full and virtuous flight.
In
his novel On the Beach,
Neville Shute painted Australia as a good place to escape a nuclear war, but
the self-confident, level-headed people of this distant island continent have
been unable to avoid infection from the epidemic of virtue that took hold in
the 1970s, and gained strength as a tool with which to shame the Soviet bloc
into capitulation where conventional weapons had failed.
The
enforcement of human rights is now a multimillion-dollar, government-funded
industry in Australia, just as Thumpa said it would become. There are nine
official human rights bodies, one at a federal level and one for every state
and territory, each living off the public purse and pursuing petty claims of
discrimination against housing department officers, shopkeepers and nightclub
bouncers. Since Britain has more than enough problems of its own, I will spare
you the details of the department-store Santa in South Australia, who claimed
discrimination on the ground of a disability when the store manager asked him
to remove his glasses, or the Queensland public servant of Indian descent who
took umbrage when offered a cup of black tea.
It
seemed that until late last year, Australia as we know it would eventually
disappear under this rising tide of sanctimony. The federal government’s new
Human Rights and Anti-Discrimination Bill, said to merely consolidate rights
but which in effect brazenly expands them, would sail through parliament on the
winds of worthiness, with attorney general Nicola Roxon at the bow as Celine
Dion sung ‘My Heart Will Go On’.
Quietly
at first, but with a swelling, indignant chorus, respectable Australians of
unimpeachable character began howling Roxon’s bill down. The contrivance of
describing race, gender, sexual orientation, disability or 14 other grounds for
victimhood as ‘protected attributes’ jarred; the inclusion of industrial history,
breastfeeding or pregnancy or social origin suggested overkill; the reversal on
the onus of proof, obliging alleged racists, misogynists and wheelchair kickers
to demonstrate their innocence, seemed a step too far. The ABC’s chairman, Jim
Spigelman, a lawyer of some standing, voiced his concerns about the outcome of
the Bolt case. ‘I am not aware of any international human-rights instrument or
national anti-discrimination statute in another liberal democracy that extends
to conduct which is merely offensive’, Mr Spigelman said. ‘We would be pretty
much on our own in declaring conduct which does no more than offend to be
unlawful. The freedom to offend is an integral component of freedom of speech.’
Ms
Roxon has now stepped down, not ostensibly over the bill, although the
unexpected controversy may have strengthened her desire to spend more time with
her family. It is unlikely to proceed: Australia’s prime minister Julia Gillard
has too many challenges in an election year to want to fight this battle. Incredibly,
the conservative opposition, which will almost certainly be in government in
seven months, is at last muscling up for a fight: the one it should have picked
in 1975 and again 20 years later.
In
January, when the recently appointed head of the Human Rights Commission,
Gillian Triggs, turned up to answer senators’ questions about the bill in
parliament, she might have expected an easy ride, just like her predecessors,
who frequently used such platforms to wag their fingers at the sorry creatures
of democracy who are forced to seek a popular mandate to find a voice in the
civic debate.
Shadow
attorney general George Brandis was well prepared, however, noting the right
the bill failed to address was the most important right of all in a democratic
society: the right to free speech. Political opinion would become a ‘protected
attribute’, although Professor Triggs was quick to add: ‘We would like to make
the point that not all political opinion is protected. The right is not
absolute; it is subject to certain constraints, most particularly along the
lines of broad principles of reasonableness and good faith.’
Senator
Brandis, who like Thumpa comes from Queensland, would not leave it at that.
‘Are you telling me that the judiciary or some other decision-maker will then
sit in judgement and say, “Your political opinion is not reasonable and
therefore it is not a protected attribute”?’
Professor
Triggs: ‘If the person putting the political view in a work context is doing so
in a way that amounts to some form of harassment of somebody in that workforce,
and the employer says, “You’re upsetting my employees; you’re doing this so
consistently and so insultingly that you’re disrupting the workplace, and I’m
going to sack you”, the question then might be: has this person been
discriminated against on the grounds of their political opinion?’
But
wait, the senator countered, I upset people every day in the course of my job
by expressing political opinions, ‘and rightly so, because that is what
pluralism and democracy mean’.
Ah,
said Professor Triggs, we are protecting the right to hold opinions; it was their inappropriate
expression that had the propensity to offend. If the expression of opinions
conflicted with another aim - public order, for example, or the maintenance of
a civilised workplace - then ‘in the end, decision makers will have to put
limits’.
Decision
makers, limits;
these are the kind of words that would have made Thumpa’s ears prick up, and
perhaps even those of his rabbits.
Senator
Brandis continued: ‘Suppose that in, say, a lunchroom in a workplace… there are
vigorously held and different views, some workers express an opinion among
themselves but in front of another worker, and the worker who hears the opinion
finds it extremely offensive and disturbing… Should the capacity to express
unwelcome political opinions - unwelcome to their auditor - be constrained?’
‘I
believe it can be, and ought to be, constrained, where the behaviour ultimately
becomes harassment - if you want to use that word’, replied the professor. ‘We
may get it wrong; the courts may get it wrong. But I think the critical point
is to accept that nobody is there objecting to the holding of the political
view; the objection is to the effect of that political view or the manner in
which it is delivered.’
Unlike
political opinion, attributes like age or gender or sexuality are objective
facts. They did not have to be demonstrated. As Senator Brandis pointed out:
‘There is no imperative for a 45-year-old man to go around saying, “I’m 45”.
That does not happen.’ Political opinion, however, means nothing unless it is
expressed.
Brandis:
‘I do not know if you are familiar with Czeslaw Milosz’s work The Captive Mind, or Arthur
Koestler’s book Darkness At
Noon… The whole point of political freedom is that there is an imperishable
conjunction between the right to hold the opinion and the right to express the
opinion. That is why political censorship is so evil - not because it prohibits
us holding an opinion but because it prohibits us articulating the opinion that
we hold.
‘We
all agree that there is no law in Australia that says you cannot have a
particular opinion. We all agree that there are certain laws in Australia,
including defamation laws, that limit the freedom of speech. My contention is
that there should not, in a free society, be laws that prohibit the expression
of an opinion… This attempt to say, “Holding an opinion is one thing but
expressing an opinion is quite different”, is terribly dangerous in a liberal
democratic politic.’
Thumpa,
for all his faults, would have got this point. Professor Triggs, evidently,
does not.
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