Isaac Newton was the first to set down a mathematical formulation of time. He related it to movement and space, with linear properties, measured as duration. Stephen Hawking later postulated three arrows, including perception. Time as an inexorable flow forwards.
Australian politics messes with conceptions of time. It defies physics, as it were. Little else seems to explain the sensation of simultaneous inertia and commotion, particularly around anti-discrimination laws and race. Here, time bends into a loop like a noose choking meaning from true things.
Since Herald Sun columnist Andrew Bolt lost a Federal Court case over sections 18c and 18d of the Racial Discrimination Act (RDA), changing the law has been a fixation for the conservative right spectrum. The Liberal Party made it part of their agenda in the lead-up to the 2013 election. In November 2016, Attorney-General George Brandis instigated a parliamentary inquiry into section IIA of the RDA and the complaints process under the Australian Human Rights Commission (AHRC).
The joint committee tabled a report in February 2017 that carried no recommendation to change the wording of the law. Prime Minister Malcolm Turnbull nevertheless signalled a plan the following month to remove the words ‘offend’, ‘insult’ and ‘humiliate’ from 18c and replace them with ‘harass’.
It should never be forgotten that nine Aboriginal Australians had won the court case that prompted the obsession with 18c. The rule of law prevailed in 2011. It turns out that ‘the law’ is only what the powerful can tolerate. The same politicians who sanctimoniously invoke the rule of law (say, when a union leader says she is fine with unprotected industrial action) have been agitating against 18c for more than five years.
According to political historian Evan Smith, the issue was raised 19 times in both houses from the time the RDA amendments were introduced in 1994 to 2012. The Coalition took government in 2013. From that year to the time of writing, it has been raised 336 times in both houses. It exposes something either about how the legal system is expected to function or the character of our legislators, when they move to change laws that had been used against public figures they take to be their own.
It is something to behold. Governments usually creak along, yet turn limber when a person of influence and power fails to get away with something, or when private agendas are thwarted. Just as 18c captured attention only when Bolt lost in court, so did section 487 of the Environmental Protection and Biodiversity Conservation Act become a target for removal after the Mackay Conservation Group mounted a successful legal challenge against the Adani coal project in Queensland.
The right often casts itself as the sober side of politics, but its blind vindictiveness suggests otherwise. The past half-decade has been like being locked inside a university hall where the lecturer drones—without any irony whatsoever—about freedom and free speech. The white noise overcomes the clock. Haven’t we heard all this before? Is time even passing? To borrow the words of black American activist DeRay McKesson, this is how whiteness works. This is how power, indelibly coded white, works. It arrests time—revealed by history as a trajectory towards progress.
It belittles the concerns of minorities as ‘feelings’ even as it elevates its own lingering preoccupations as neutral and rational. It perverts free speech, turning a mechanism for accountability into a shield against it. It extols freedom even as it licenses impunity, which is a significant threat to freedom. It treats impediments to power as injustice. It recasts victims as oppressors; oppressors as martyrs. It demands resilience from the vulnerable, and every protection for itself.
‘Stop being so sensitive,’ whiteness might say, ‘toughen up.’ But nothing underlines loss of perspective more intensely than the pursuit of changes to the Racial Discrimination Act—a law that was constructed as a defence against and remedy for racialised, public abuse.
It should not escape anyone’s notice that none of the people who invoke freedom and free speech are in want of them. That is also how power works. It cultivates and thrives under assumptions that everyone is the same, with similar standing, histories and context. Powerful people need this fiction to produce further fictions: that they speak for all, that their interests are universal. When highly networked individuals with multiple media platforms and financial resources tinker with what legal protections are available for minorities—this is an assertion of power.
Over the past five years we have seen structural problems such as housing affordability, labour exploitation and joblessness escalate. Fiscal issues regarding revenue persist. Questions also loom over the long-term capacities and suitability of our infrastructure in areas such as transport, energy and broadband. However, there is apparently not so much to do that the Coalition government couldn’t fit in another round of legal semantics. No poll has ever bolstered or vindicated such persistence. Nor was there a majority in the Senate in support of watering down section 18c of the RDA when in late March the government’s proposal was put to a vote. Despite this setback, no doubt the right will continue to agitate on the issue.
Our legal system can hardly be described as partial to Aboriginal people, given the appalling incarceration rates, as well as deaths and abuse in custody. Moreover, less than 5 per cent of claims made under the RDA make it to the courts. A majority are dismissed there. It is not a law that rewards vexatious litigation.
Bolt losing the case against him had to be refashioned as an anomaly. Unable to penetrate the soundness of Justice Mordecai Bromberg’s judgment, the right mounted an assault against a law that had 20 years of jurisprudence behind it. Not the part of the law that ultimately lost Bolt the case, however. Section 18d would have shortened the case against cartoonist Bill Leak, had he made a submission that met its provisions on good faith, fair comment and public interest.
Exemptions around speech that may be taken as offensive, insulting and humiliating are embedded in the RDA. The right is often mute on those because it would interfere with the argument that the law effectively censors all kinds of speech.
To be fair, standards can seem oppressive to those who have no interest in meeting them or a basic understanding of why they must exist. The Bolt case could have been a test about journalistic standards in published opinion. Instead, what we have are repeated attempts to loosen permissions to be racist. Because this is Australia, the land that time forgot, bound ever to validate constructs of whiteness, where grievances on the margins are illegitimate, but the feelings of those with power are sound.
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