Imagine a government introducing legislation to declare unlawful anything done in public, including the media, which is offensive to Muslims, such as a cartoon in the Charlie Hebdo style. And imagine Senator Madigan interjecting ‘What about that appalling photograph Piss Christ?’ and the attorney general replying firmly (certainly not Senator Brandis): ‘Offending Christians is entirely lawful in Australia’.
There is no need for such legislation. The Keating government delivered this in 1995: the Racial Discrimination Act.
The shadow attorney general, Mark Dreyfus QC, supported by Racial Discrimination Commissioner Tim Soutphommasane, denies this. Having a bet both ways, Dreyfus says a local Charlie Hebdo would be covered by the freedom of expression exemption, although as everyone knows, Charlie exists to offend. Andrew Bolt must wonder why he didn’t ask Mr Dreyfus to act for him.
Sociology professor Andrew Jakubowicz agrees, warning that the ‘loony right’ are, with ‘slavering lips’, revisiting their ‘thwarted desire’ to allow racial vilification to run ‘untrammelled’.
Section 18C makes it unlawful for someone to do an act reasonably likely to ‘offend, insult, humiliate or intimidate’ someone because of ‘race, colour or national or ethnic origin’. To explain how this would stop a Charlie Hebdo journal, we need to focus on the explanatory memorandum released on the introduction of new legislation into parliament.
If what happened on this occasion is typical, most people whose job it is to read the explanatory memorandum don’t bother. The Australian’s Joseph Kelly did. As did eminent constitutional lawyer Professor Anne Twomey. In 1994 she cottoned on to what the government was up to − attempting to legislate through the memorandum. Her opinion was in the Bills Digest. Alarm bells should have rung.
The memorandum is also important because parliaments have directed the judges that in interpreting acts of parliament, they may in certain circumstances have recourse to ‘extrinsic materials,’ including the memorandum and the minister’s ‘second reading speech’. The Keating government made its wishes very clear in this memorandum, saying that the terms ‘ethnic origin’ and ‘race’ are to be complementary and given a broad meaning. They strongly approved of the interpretation of ‘ethnic origin’ in New Zealand and Britain: the ‘King-Ansell’ interpretation says that a ‘common descent’ is not necessary to demonstrate a common ethnic origin. It is all about sharing one or more of several characteristics. Crucially, one of these is sharing a religion different from that of the general community − a minority religion. This would exclude Christianity but as the government decreed, provides ‘the broadest basis for protection of peoples such as Sikhs, Jews and Muslims’.
Mentioning other religions was little more than a camouflage. Jews were already covered and the likelihood of a series of controversial claims by Sikhs was remote. The second reading speech − another specified source of extrinsic material− makes no mention of the government’s intention that ‘ethnic origin’ include Muslims. While we cannot say this was deliberate, it had the consequence that those who had not read the memorandum would not be alerted to this when hearing the speech. They could conclude, erroneously, that 18C did not apply to a religion. In any event, just how successful was this cunning manoeuvre? The answer is that it has been successful beyond the government’s wildest dreams.
To explain that we have to go to the meticulous decision of Justice Bromberg in the Andrew Bolt case. His Honour not only quotes at length from the explanatory memorandum, he adopts the King-Ansell interpretation. So did the ACT Human Rights Commissioner on a complaint about protests against building a mosque. So did another federal court judge. So did the full federal court.
It is even worse than that for the deniers. Justice Bromberg adopts the King-Ansell interpretation as the ordinary or popular meaning of ‘race’ and ‘ethnic origin’. This means a judge does not have to rely on extrinsic material to find that Muslims have a common ethnic origin for the purposes of 18C.
The Keating government scored a stunning victory. But why did it privilege a community who have demonstrated an extremely low level of tolerance of criticism? Recall, for example, that during riots in Sydney in 2012, an innocent child held aloft a sign saying ‘Behead all those who insult the prophet’.
Mass Muslim immigration began when the Fraser government, against advice, relaxed the eligibility requirements concerning ‘refugees’ from the Lebanese civil war. By 1976, the immigration department was strongly warning that too many Lebanese Muslims were being admitted without ‘the required qualities’ for successful integration. But as former Hawke minister Barry Jones revealed, immigration was seen by Labor as a tremendously important element in building up a long-term political constituency by locking up the Muslim vote.
This use of the immigration power is best demonstrated by the attitude of the government to the extremist imam Sheikh Taj El-Din Hamid Hilaly. When an exasperated Chris Hurford finally moved to deport Hilaly, he was sacked as Labor’s immigration minister. Hilaly was not only allowed to stay, he was granted permanent residence, followed, unbelievably, by a grant of full Australian citizenship.
More recently, Kevin Rudd dismantled the Pacific Solution leading to a massive influx of illegal immigrants reliant on our welfare system and with access to family stream immigration with its multiplier effect. He only moved to stem this as the 2013 election loomed. Was this merely gross incompetence, or ‘boats for votes’? Clearly not all politicians can be relied on to act in the national interest.
There can be no doubt that, absent approval of the current very modest private senators’ bill to amend 18C, an antipodean Charlie Hebdo would be doomed.