The Coalition government’s peripatetic approach to fundamental freedoms must have voters confused. It is one thing for a government to see the folly of its past ways and promise a renewed commitment to our freedoms. It is another for a Liberal-led government to keep bouncing all over the place, with a fluctuating commitment to core values of free speech and religious freedom.
The Prime Minister cannot be in two minds about 18C
The Morrison government cannot have forgotten the last election was fought on values. Values of all kinds. When Bill Shorten invited voters to engage in class war, we voted against that attack on the aspirational values of millions. When Labor ignored the importance of religious faith, it was punished at the ballot box.
With parliament due to consider newly proposed religious discrimination laws this week, the Morrison government should expect to be reminded freedom of expression is integral to religious freedom. It should also be asked why it has settled on different positions on these two basic freedoms.
Two years ago, on free speech, Scott Morrison said reforming section 18C of the racial discrimination law “doesn’t create one job, doesn’t open one business, doesn’t give anyone an extra hour. It doesn’t make housing more affordable or energy more affordable”. On religious freedom, he moved on from that position, but only after one hell of a nudge. At first Morrison wasn’t that interested in the legal battle that embroiled Israel Folau, the rugby champion sacked for posting his Christian beliefs on his social media platforms.
The Prime Minister dismissed Folau’s battle, saying “that issue has had enough oxygen”. Three weeks later, four days before the election, Morrison promised to provide religious protections equivalent to those in other federal anti-discrimination laws.
As discussion about religious freedom ramps up, the government’s curiously different commitments to free speech and religious freedom need reviewing. The Morrison government may need some smelling salts to regain consciousness on section 18C. It must be repealed if Morrison wants to be seen as a leader of conviction.
It won’t be an easy task. Important reforms never are — just ask John Howard or Bob Hawke. No prime minister since them has succeeded with difficult but necessary reforms; both were rewarded with mantles as the best leaders this country has had in the modern political era.
Despite recent comparisons with Howard, and the two men have things in common, Morrison’s responses will need to get sharper and faster to match Howard’s intuitive responses.
Morrison’s first instincts, especially when it comes to questions about the fundamental freedoms of Australians, can be clumsy, firming up only after time, reflection and advice.
We expect a dismissive attitude from Labor about core freedoms, and we ignore the Greens on such matters as entirely illiberal, but a Liberal prime minister needs carefully honed instincts to defend values that go to the heart of our liberal democratic project.
When in London in June, Morrison was asked whether he was concerned a journalist’s home had been raided by police. His response — “it never troubles me that our laws are being upheld” — was ham-fisted. What if those raids show that Australian laws need reforming? He should have been more curious about what was at stake.
His instinctive dismissal reflected his first response in April on the Folau matter, until he understood that voters, people of faith or not, want to live in a country where people can express their basic freedoms of religious belief without losing their career or being otherwise punished.
If the May election has genuinely shored up the government’s understanding of the role of values in politics, it should revisit its approach to freedom of expression. And there are four reasons section 18C — a law that prohibits speech that offends, insults or humiliates a person on the basis of their race — needs repealing.
First, by not replicating section 18C in their religious discrimination bill, the Prime Minister and the Attorney-General have admitted 18C has gone too far in restricting our right to speak. The Australian Human Rights Commission aided and abetted the pursuit of The Australian’s cartoonist, Bill Leak, by those feigning hurt feelings over his cartoon about indigenous dysfunction. The then race commissioner seemed to tout for business over a cartoon that made some feel uncomfortable.
Three students at the Queensland University of Technology should never have endured years of legal battles over a few lighthearted comments they made on social media about an indigenous-only computer lab. Given the vagaries of the words “offends, insults or humiliates”, it is no great comfort that the case against them was dismissed after 2½ years of legal wrangling because other students settled with the complainant, paying thousands of dollars to avoid an even more expensive court battle. Section 18C limits speech before it gets anywhere near a courtroom. The Morrison government needs to be consistent in its principles. Its refusal to replicate 18C in its draft religious discrimination bill means it must repeal this section in the Racial Discrimination Act.
The second reason for repealing 18C is that parts of this very subjective section are routinely copied into codes of conduct by employers, making it impossible for employees to know what they can and cannot say. Even in Rugby Australia’s players code of conduct, which sets the bar higher with words such as “harassment” and “bullying”, Rugby Australia’s actions demonstrate how highly subjective words might be used to end a man’s career.
Beyond its legal reach, section 18C has fostered a formula for censoring speech so wide, and so subjective, it attaches to all kinds of perceived offence, giving employers an effective right to terminate a person’s employment at will. This is untenable in a free society.
The third reason for repealing section 18C is that it has become a legal pestilence on campuses.
Its low bar for offence has been copied and pasted into policies about student behaviour by Australian universities. James Cook University’s discrimination, bullying and harassment policy prohibits conduct that “makes a person feel offended”.
Almost a dozen universities define harassment to include offending people based on an extended list of “protected attributes”.
Section 18C has become the cover for universities to adopt policies that have grown like weeds, curbing free speech on campus rather than defending the intellectual exploration of a range of views, even uncomfortable ones. That’s why many universities have been forced to look at how their policies clash with the code for academic freedom and freedom of speech suggested by Robert French in his report, handed to the Morrison government this year.
The final reason for reforming section 18C is that the timing is better than it was when Tony Abbott promised to do it, and then kicked that can down the road.
The Morrison government cannot build capital or credibility from enacting a religious discrimination bill that excludes 18C because it is a bad law, without repealing the same bad law from the Race Discrimination Act. It would be like saying you believe in protecting religious freedom but not free speech. That clash of values won’t wash with voters.