Legislation

Parliament’s current obsession with s18c

On ‘Harmony Day’ yesterday, the Turnbull government announced that it would seek to introduce legislation that would amend the Racial Discrimination Act 1975 (Cth) to remove the words ‘insult’ or ‘offend’ from section 18c of the Act. Under these proposed changes, only racial ‘harassment’ or ‘intimidation’ would be prohibited.

To many, this seemed like a pet project of the conservative right of the Liberal Party and some right libertarians that had gained too much attention. A number of commentators pointed to the continued discussion of the s18c in the opinion pages of The Australian, as well as the columns of News Limited commentators like Andrew Bolt or the journal Quadrant. The amount of media space devoted to criticising s18c and the Australian Human Rights Commission (who enforce the Racial Discrimination Act) seems to most to be out of proportion with mainstream public opinion in Australia.

In response to yesterday’s announcement, Fatima Measham from the current affairs website Eureka Street commented:

This got me interested. How had the discourse surrounding s18c of the Racial Discrimination Act changed since Andrew Bolt was found to have contravened the Act in 2011?

In September 2011, Andrew Bolt was found by the Federal Court to have authored two columns that contravened s18c. In response, a number of those on the right of politics, as well as many in the media from the ‘centre’, complained about the verdict and proposed for the wording of the Act to be changed. In the lead up to the 2013 election, the Liberals inserted this policy proposal into their manifesto.

C7aeJ1pVwAAi1NI

With Andrew Bolt regarded as a close personal friend, Prime Minister Tony Abbott first floated changing the Act in 2014, but with significant resistance from ethnic minority organisations and other progressive groups, Abbott dropped this initiative.

But the issue didn’t go away. The Australian continued to campaign for the working of s18c to be changed. So did some within the Liberal Party, such as Senator Cory Bernardi, or Abbott once he returned to the backbench. And since Turnbull’s rapid decline in the opinion polls, the conservative right have been using the issue to criticise Turnbull and assert themselves, despite their numerical sparsity.

Using Parlinfo, I looked into how often had the issue been raised in Parliament since s18c came into effect in 1995, as part of the amendments to 1975 Act instigated by the Racial Hatred Act 1995 (Cth). And here are the results:

HoR Senate
1994 7 1
1995 0 2
1996 1 0
1997 0 0
1998 0 0
1999 0 0
2000 0 0
2001 0 0
2002 0 0
2003 0 0
2004 0 0
2005 0 0
2006 0 0
2007 0 0
2008 0 0
2009 0 0
2010 2 0
2011 0 0
2012 3 3
2013 8 2
2014 40 58
2015 33 20
2016 38 59
2017 58 20

As the above table shows, despite from an initial flurry in the mid-1990s (when the Racial Hatred Bill/Act was debated and passed), it was not until 2014 that the issue really becomes a topic of discussion in parliament. Discussions of the subject went down significantly in 2015, after Abbott dropped the issue, but was revived the following year, especially in the Senate – now home to a number of Senators on the political far right. The below graphic also illustrates the sudden rise in discussion of the issue since the Liberals have regained office.

Screen Shot 2017-03-22 at 11.39.13 am.png

Even though the Racial Hatred Act was passed more than 20 years ago and s18c has been part of the Racial Discrimination Act framework since then, it was only in recent years that conservatives and right libertarians have taken up the issue. This is demonstrated by the discussion of the issue in Parliament.

A much broader analysis of how and how much the issue has been discussed in the media is needed, but that’s for another time.

 

 

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The Communist Party’s campaign for the Race Relations Act 1965

This month is the fiftieth anniversary of the introduction of the Race Relations Act 1965 by the Wilson government, the first piece of legislation dealing with racial discrimination in the United Kingdom. As I have argued elsewhere (here and here), a major part of the Communist Party of Great Britain’s anti-racist activism between the 1950s and the 1970s was the introduction and use of legislation to combat racial discrimination, namely the Race Relations Act. The following post looks at the CPGB’s call for legislation before 1965 and how it responded to the Act once it was in effect.

A CPGB pamphlet from 1961

A CPGB pamphlet from 1961

Since the end of the Second World War, the Communist Party had campaigned for the introduction of legislation combat racial hatred and the incitement to racial violence. With the influx of Commonwealth migrants in the 1950s, the Party also campaigned for legislation to fight the racial discrimination faced by many of the new arrivals to the country. In 1955, the International Department published the pamphlet No Colour Bar in Britain, which contained the ‘Charter of Rights’ for Commonwealth migrants coming to Britain. The first point of this Charter called for:

No form of colour discrimination by employers, landlords, publicans, hotel proprietors or any aspect of social, educational and cultural activity. Any racial discrimination to be made a penal offence.[i]

This meant support for Fenner Brockway’s attempts to pass legislation that would ban racial discrimination and the ‘colour bar’ in Britain. In June 1956, Brockway introduced a Bill ‘to make illegal discrimination to the detriment of any person on the grounds of colour, race and religion in the United Kingdom’.[ii] Brockway acknowledged that ‘there must be a limitation to the powers of legislation’, but cited three main areas where legislation was ‘justified and necessary’ – public areas, housing and employment.[iii] At this time, Brockway was also National Chairman of the Movement for Colonial Freedom, which founded in April 1954.[iv] Between 1956 and the introduction of the Race Relations Act in 1965, Brockway proposed a bill on racial discrimination a number of times, all defeated by the Conservative majority. Kay Beauchamp wrote in Marxism Today in 1967 that Brockway had introduced a Bill on racial discrimination ‘no less than eight times’ and this had been supported by the MCF, the National Council for Civil Liberties (NCCL) and other progressive organisations, as well as the Communist Party itself.[v]

There were two main arguments made by the Communist Party for the introduction of the Race Relations Act. The first was a continuation of the CPGB’s anti-fascist stance, calling for a ban on the incitement to racial hatred. The other was the wider argument for legislation to combat racial discrimination that was much more widespread and institutionalised than that explicitly perpetrated by the fascist far right minority. The CPGB argued that this was not an issue of free speech, but stated that preventing race hatred was a ‘guarantee of peace, democracy and progress’.[vi] To defend these ideals, the Party demanded that fascist organisations, such as Mosley’s Union Movement, be banned from using public halls, and that workers should ‘oppose every form of colour discrimination’ and make ‘such discrimination or propaganda for it, a criminal offence’.[vii]

This argument was raised again in July 1962, when anti-fascists, in what were the beginnings of the Yellow Star Movement, battled in Trafalgar Square against the fledgling National Socialist Movement (NSM), led by Colin Jordan and future National Front leader, John Tyndall. According to The Guardian, the first public meeting of the NSM ‘ended with 20 arrests, fights, bleeding faces, abuse, and tears’.[viii] In the weeks following, the CPGB demanded that ‘racial incitement be made illegal… as a result of the widespread and deep indignation aroused by the recent re-activisation of fascist organisations in Britain’.[ix] The Party repeated that Fenner Brockway had been proposing legislation against racist propaganda for years and declared that it, along with the British working class, would ‘give its wholehearted support to the efforts being made for the carrying of such legislation in Parliament’.[x]

However, the Party was wary about the state using the 1936 Public Order Act to combat public racist agitation. In the same article, it warned that a ‘Tory MP, incidentally, has seized the opportunity to propose a ban on ALL political meetings in [Trafalgar] Square’,[xi] which would have had a much harder impact on the left and other progressive movements than the fascist far right. The fact that the Public Order Act had been ‘mainly used against those who resent and protest against provocative racialist propaganda’ was one of the reasons why the Communist Party supported Brockway’s Bill, rather than amending the 1936 Act.[xii] In a memorandum presented by the London District Committee in December 1964, the Party declared that:

There should be no question of amending the Public Order Act (1936) instead of introducing a Bill. The Public Order Act is an Act directed against the working class movement and any strengthening of it will tend to be used not against fascists, but as in the past, against anti-fascists.[xiii]

The other side to the campaign for legislation against racial discrimination was the much more widespread and institutionalised racism that black people in Britain faced in public places, in employment, in seeking housing and in their interactions with the state. Any legislation brought in could not eliminate all racism within British society, but Fenner Brockway’s aimed to ‘end, by legislation, the practice of race discrimination in… public relations’.[xiv] Despite the very real instances of racial discrimination that were experienced by blacks in Britain, the Conservatives opposed any legislation, declaring that ‘it would be almost impossible to prove that a person had been turned away on the grounds of colour and on the grounds of colour alone’.[xv] Describing Brockway’s proposals as ‘badly drafted and ill-conceived’, Conservative MP Bernard Braine claimed during a Parliamentary debate on the Bill that ‘a large number of coloured people… have not experienced any form of discrimination ‘ and ‘discrimination, therefore, is something which ought not to be tackled by legislation, but… by education’.[xvi]

The Communist Party countered these claims by the Conservatives that legislation was unnecessary in the Daily Worker and other CPGB literature. In a memorandum submitted to the Labour Government by the London District Committee in March 1965, the Party declared that racism was ‘widespread in relation to employment, housing and recreational facilities’ with ‘many examples of refusal to serve coloured people in restaurants, public houses and other public places’.[xvii] To counter this, the Party proposed that discrimination should be made illegal:

  • by a keeper of a Hotel, Public House, Café or Restaurant…;
  • by a keeper of any kind of Boarding House, Common Lodging House or in granting a tenancy;
  • by a keeper of any public place of entertainment… to which the public are admitted.[xviii]

In the sphere of employment, the Party proposed legislation making it illegal for ‘employers or workers to refuse employment, apprenticeship, training or promotion’ on the grounds of race, along with attempts to ‘pay a lower rate to a worker’ on racial grounds.[xix] The Party proposed that any public incitement of racial hatred or contempt should be an offence, to be applied to the spoken word and that used in leaflets, newspapers or any other printed or duplicated material. The Party reiterated that ‘existing legislation is inadequate with this menace’ of explicit racial prejudice and ‘the matter cannot be effectively dealt with by amending the Public Order Act’.[xx]

Throughout the Communist Party’s campaign to support the creation of what became the Race Relations Act, there was the acknowledgement of the limitations of legislation without wider education and efforts made at local grassroots level. ‘No one would pretend that such legislation, by itself alone, would be sufficient to wipe out colour-bar practices’, wrote Kay Beauchamp, ‘let alone to rid people’s minds of the racial ideas which more than three hundred years of capitalist rule have plated there’.[xxi] But what it was hoped the Race Relations Act would do was ‘deter those who at present practice racial discrimination’ and ‘restrain those… who deliberately incite racial hatred’, as well as preventing ‘the more open forms of their insidious propaganda’.[xxii]

In November 1965, the Race Relations Act was enacted by the Labour Government. On the issue of discrimination, the Act made it illegal for places of public resort to ‘practise discrimination on the ground of colour, race, or ethnic or national origins against persons seeking access to or facilities or services at that place’.[xxiii] In the sphere of housing, tenancy could not be withheld on the grounds of race, but this only applied to freestanding properties and not to lodgings where the landlord also lived.[xxiv] The Labour Government established a Race Relations Board to investigate complaints of violations of the Act and facilitate conciliation between the parties concerned. Punishment for violation of the Act could only be delivered by the Attorney General, to whom the Race Relations Board would report. While racial discrimination was now in violation of civil law, it made racial incitement, published, distributed or publicly spoken, a criminal offence. However the final clause of the Act also amended the 1936 Public Order Act, extending it to any words or writings deemed ‘threatening, abusive or insulting, with intent to provoke a breach of the peace’ and not limited to the issue of ‘race’.[xxv]

The Race Relations Act was a significantly weaker Act than the one which had been proposed by Fenner Brockway and was, as Dilip Hiro noted, ‘criticized by liberal opinion both inside and outside Parliament’, including criticism from the Communist Party.[xxvi] The Act was described as ‘marred by weakness which represented a dangerous concession to the most reactionary and racially prejudiced of the Tory Party’.[xxvii] Tony Chater claimed that the Act worked as a ‘barrier against prosecution for incitement to racial hatred’ as it relied on the Attorney General to initiate any proceedings.[xxviii] Conciliation machinery was viewed as ‘very desirable, but only within the framework of criminal proceedings’, not as a substitute for legislation.[xxix] ‘If such machinery becomes a substitute for legislation against racial discrimination’, warned CPGB member Harry Bourne, ‘then full licence will be left to the racialists to carry on their foul work’.[xxx]

In July 1967, Beauchamp wrote in Marxism Today:

The Race Relations Board recently reported that out of 309 cases referred to it, 224 referred to matters outside its powers, including 97 on jobs and 23 on housing. Of the remaining 87, 17 had been settled out of court, 2 had been referred to the Attorney General and 31 were being looked at.[xxxi]

The amendments to the Public Order Act in the 1965 Act were claimed by the CPGB to have ‘nothing to do with race relations’ and its extensions going ‘beyond the intention’ of the Act, with the possibility of it being ‘used to curb the normal political activities of the people’.[xxxii] Despite its weaknesses, the Communist Party saw the Act as ‘a first limited step to combat the spread of racial discrimination and incitement’ and called for support for it ‘in principle by all progressive people’.[xxxiii] The CPGB continued to call for ‘amending of the Race Relations Act to make it more effective against incitement to race hatred and against discrimination, particularly in housing and employment’.[xxxiv] It also proposed that ‘it should be easier for a victim… to have recourse to law without having to seek the Attorney General’s intervention’.[xxxv] However as the Act was strengthened by the Labour Government in 1968, this happened as more severe restrictions were placed on black immigration in Britain.

Screen Shot 2015-12-07 at 9.09.43 pm

Beauchamp’s 1967 article in Marxism Today

 

(Full refs are available upon request)

[i] Bolsover, No Colour Bar in Britain, p. 11.

[ii] Hansard, 12 June 1956, col. 247.

[iii] Hansard, 12 June 1956, col. 248-49.

[iv] Howe 1993, p. 231.

[v] Beauchamp, ‘Racialism in Britain Today and How to Fight It’, Marxism Today, July 1967, p. 203.

[vi] ‘Stop Racial Propaganda’, n.d., Manchester: CPGB flyer.

[vii] ‘Stop Racial Propaganda’

[viii] The Guardian, 2 July 1962.

[ix] Jones, ‘Outlaw This Incitement to Racial Hatred’, Comment, 11 August 1962, p. 381.

[x] Ibid.

[xi] Ibid.

[xii] Zaidman, ‘Fight Race Hate Here Too’, Comment, 5 October 1963, p. 631.

[xiii] London District Committee, ‘Memorandum on a Bill against Racial Discrimination and Incitement’, 16 December 1964, in CPGB archives, CP/LON/RACE/01/01, LHASC.

[xiv] Hansard, 30 April 1958, col. 388.

[xv] Hansard, 24 May 1957, col. 1604.

[xvi] Hansard, 24 May 1957, col. 1602; col. 1606.

[xvii] London District Committee, Against Racial Discrimination & Incitement: What Should Be in the Bill?, March 1965, p. 2, in CPGB archives, CP/LON/RACE/01/04, LHASC.

[xviii] London District Committee, Against Racial Discrimination & Incitement, p. 5.

[xix] London District Committee, Against Racial Discrimination & Incitement, p. 6.

[xx] London District Committee, Against Racial Discrimination & Incitement, pp. 8-9.

[xxi] Beauchamp, ‘Colour Bar’, Comment, 11 January 1964, p. 22.

[xxii] Ibid.

[xxiii] Race Relations Act, 1965, 1 (1)

[xxiv] In most discussions of the shortcomings of the first Race Relations Act, it is generally mentioned that ‘it did not apply to the areas of employment and housing’. While employment was not included in the Act, some mention of housing was included, but this is commonly overlooked. Even contemporary reports in the Communist Party press generalised about the weaknesses of the Act, stating that, ‘Discrimination in the important fields of employment and housing is not within its scope’. Miles and Phizacklea 1984, p. 57; Hiro 1992, p. 210; Moore 1975, p. 103; Chater 1966, p. 62; Daily Worker, 29 April 1965.

[xxv] Race Relations Act, 1965, 7

[xxvi] Hiro 1992, p. 210.

[xxvii] ‘Political Committee Statement on Race Relations Bill’, in CPGB archives, CP/LON/RACE/01/02, LHASC.

[xxviii] Chater 1966, p. 62.

[xxix] Chater 1966, p. 63.

[xxx] Bourne, Racialism, p. 12.

[xxxi] Beauchamp, ‘Racialism in Britain Today and How to Fight It’, p. 203.

[xxxii] ‘Political Committee Statement on Race Relations Bill’

[xxxiii] ‘Political Committee Statement on Race Relations Bill’

[xxxiv] Beauchamp, ‘Racialism in Britain and the Fight Against It’, p. 617.

[xxxv] Bourne, Racialism, pp. 12-3.

How the Aboriginal Tent Embassy challenged the government’s protest laws

Tomorrow is the 43rd anniversary of the establishment of the Aboriginal Tent Embassy outside (Old) Parliament House in Canberra. This post is about how the Tent Embassy challenged the protest laws enacted by the McMahon government the previous year, which sought to quash dissent outside the house of Federal Parliament. The McMahon government believed it had the necessary powers to deal with the protest movement that had developed since the late 1960s, but the Tent Embassy demonstrated that political protest was a much more fluid concept and one that puzzled the Liberal-Country government.

Part of this post will be in a forthcoming article on the Public Order Act 1971 and the policing of protest in Canberra in the 1970s (which should be available later this year).

Tent Embassy

In May 1971, the McMahon government introduced the Public Order (Protection of Persons and Property) Act 1971 (Cth) to police the growing protest movement in the nation’s capital and to prevent ‘violent’ demonstrations outside (Old) Parliament House, as well as outside the US, South Vietnamese and South African embassies. A week after the Act was introduced, it was used against an Anti-Apartheid and an anti-Vietnam War demonstration, and then in July 1971, when people protested against the Springbok rugby tour coming to Manuka Oval. At these three demonstrations, hundreds of people were arrested for violating the new Act. Despite this seemingly successful application of the Public Order Act in 1971, the McMahon Government soon found that itself debating whether it had the necessary legislation to combat other forms of protest.

On Australia Day 1972, a group of Aboriginal activists, having travelled from Redfern in Sydney to Canberra, erected a camping site on the lawns outside (Old) Parliament House and established the Aboriginal Tent Embassy. The purpose of the Aboriginal Tent Embassy was to advocate for land rights against the limited measures introduced by the Liberals since the 1967 referendum[i] and to protest against remarks made by the Prime Minister concerning the ‘assimilation’ of Australia’s Aboriginal people on Australia Day.[ii] As Scott Robinson wrote, the Embassy protestors ‘demanded retraction of the Australia Day statement [by McMahon] and compensation for stolen lands, and warned the government that the embassy would stay until these demands were met.’[iii] As the Embassy gained attention from the media, other protest groups and even the diplomatic staff on some Soviet Bloc and non-aligned countries, the Government debated over what action to take to remove the protestors from their site.

On 23 February, 1972, former Prime Minister John Gorton asked the Minister for the Interior, Ralph Hunt, what the Government intended to do with the Embassy protest, to which Hunt replied,

I am, of course, well aware that a number of tents have been pitched outside the national Parliament in Parliament Place. The people concerned are Aborigines who are demonstrating in a peaceful way for a case in which they believe. I must say that they have been quiet and they have behaved and cooperated with the police extremely well… But I think that in the future we will have to look at an ordinance to ensure that Parliament Place is reserved for its purpose – a place for orderly and peaceful demonstration, but not a place upon which people can camp indefinitely thereby perhaps preventing other people from using it from day to day… The Australian Capital Territory police have been in constant contact with them. They have observed every request that the police have made of them, and up to date they have not disobeyed any request. But the question of reserving Parliament Place for its proper intention and proper requirement is under consideration.[iv]

It was believed by the Government and the police that there were no laws to prevent the Aboriginal activists from erecting a camping site on the lawns of Parliament House as the Trespass on Commonwealth Lands Ordinance 1932 (Cth) excluded Aboriginals from being prosecuted under this Act. Roberta Sykes, one of the activists at the Embassy, wrote in her biography (and cited by Andrew Schaap and Paul Muldoon):

At the time, the Northern Territory was just that, a territory, administered by the politicians and public servants in Canberra, and containing quite large sections of Crown land. The government had framed a law that there was to be no camping on Crown land. However, because Crown land in the Northern Territory was home to dispossessed Aboriginal people who had nowhere else to live, this law specifically excluded Aborigines. The expanse of Crown land in front of Parliament House was also Crown land, but it had obviously never entered the minds of the politicians that Aboriginals would set up camp there.[v]

Scott Robinson, in his 1994 article, wrote that ‘the only applicable legislation… was the Gaming and Betting Ordinance, s.19(a), which imposed a forty dollar fine for loitering in a public place’, but this was not used.[vi] Roger Brown has demonstrated that this Ordinance was used in January 1972 to ‘move on’ a demonstrator conducting a ‘solitary picked outside the Israeli Embassy’, but an internal government document suggested that this provision ‘should not be used in view of public criticism of its use in the [Police v] Merhav case’.[vii] The ‘often-repeated story of the legal loophole’, as described by Schaap and Muldoon, does not mention whether the Public Order Act was considered by the Government, and discussion of this new legislation is conspicuously absent from Government documents and Parliamentary debates as well. However if Ralph Hunt’s description of the Embassy, taken from the above quote as ‘preventing other people from using it from day to day’, was used, it might have been possible – at a stretch – to view the Embassy as creating an ‘unreasonable obstruction’ to access to the Parliament House lawns and thus a violation of Section 9 of the Public Order Act.[viii] Simon Bronitt and George Williams have suggested that the Aboriginal Tent Embassy was a protest that formed a political discussion with the institution of Parliament and that the Government’s powers to restrict this discussion, due to its proximity to Parliament House, were symbolically weakened by the 1912 High Court decision in R v Smithers; Ex parte Benson, which ‘recognised an implied right of access to government and to the seat of government.’[ix]

In March 1972, the McMahon Government started drafting amendments to the Trespass on Commonwealth Lands Ordinance 1932 that would remove the exception of Aboriginal camps from the legislation and by the end of June, the Trespass on Commonwealth Lands Ordinance 1972 was created that made it illegal for a person to camp or erect a structure on unleased land, owned by the Commonwealth.[x] Believing that this Ordinance was now in effect, on 20 July, 1972, the police removed the structures of the Embassy and eight protestors were arrested. Scott Robinson claims that Police Inspector Osborne ‘made several announcements over the megaphone, warning the protestors to move away from the tents, and advising them that “if you fail to move you may be arrested for obstructing police”’,[xi] but does not say whether this was an invocation of the Public Order Act.

An application was made by some of the Embassy protestors and fellow-travellers to the ACT Supreme Court that the Ordinance had not been in effect (it had not been given notice in the Commonwealth Gazette) when the police dismantled the Embassy’s structures. In September 1972, Justices Fox, Blackburn and Connor delivered the verdict in the case of Golden-Brown and others v Hunt and another that the Ordinance has not been given the sufficient Gazette notice before the removal of the Embassy and its protestors and the use of the Ordinance was not lawful at that moment.[xii] In the ensuing debacle, Parliament debated whether the Ordinance should be re-instated and in the final weeks before the dissolution of Parliament before the 1972 election, ‘former government minister Jim Killen crossed the floor to vote with the opposition over the re-gazettal of the ordinance’[xiii] and when Whitlam won the election in December 1972, Labor decided not to re-introduce the Ordinance. As Schaap and Muldoon have argued, ‘having first acknowledged that the Aboriginal demonstrators were technically permitted to camp in front if Parliament House, it proved difficult for the government to recharacterize the Embassy as an act of trespass.’[xiv]

On 17 October, 1973, the Embassy was re-erected on the lawns outside (Old) Parliament House and lasted at this spot until 13 February, 1975, then established at several different sites around Canberra until 26 January, 1992, when the Embassy was re-built on its original site and remains there until the present day.[xv] Since the mid-1990s, the Embassy has been recognised as ‘a site representing political struggle for all Aboriginal and Torres Strait Islander people’ and a place of ‘significance for the local Aboriginal community’ as a traditional ‘meeting and gathering ground’.[xvi]

aboriginal_tent_embassy_1972_2

[i] Much has been written about the Aboriginal Tent Embassy, but some of the best articles are: Scott Robinson, ‘The Aboriginal Embassy: An Account of the Protests of 1972’, Aboriginal History, 18/1, 1994, pp. 49-63; Heather Goodall, Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770-1972, Allen & Unwin, St Leonards, 1996, pp. 335-351; Kathy Lothian, ‘Moving Blackwards: Black Power and the Aboriginal Embassy’, in Ingereth Macfarlane & Mark Hannah (eds), Transgressions: Critical Australian Indigenous Histories, ANU E-Press, Canberra, 2007, pp. 19-34; Paul Muldoon & Andrew Schaap, ‘Aboriginal Sovereignty and the Politics of Reconciliation: The Constituent Power of the Aboriginal Embassy in Australia’, Environment and Planning D; Society and Space, 30, 2012, pp. 534-550

[ii] Robinson, ‘The Aboriginal Embassy’, p. 49

[iii] Robinson, ‘The Aboriginal Embassy’, p. 51

[iv] Hansard, House of Representatives Parliamentary Debates, 23 February, 1972, p. 108

[v] Roberta Sykes, cited in Schaap & Muldoon, ‘Aboriginal Sovereignty and the Politics of Reconciliation’, p. 546

[vi] Robinson, ‘The Aboriginal Embassy’, p. 52

[vii] Brown, ‘“And Hast Thou Slain the Jabberwock?”’, p. 116; Department of the Interior, ‘Campers on Parliament House Lawns’, Aide Memoire, 27 June, 1972, reproduced at: http://www.reasoninrevolt.net.au/pdf/d0635.pdf (accessed on 16 August, 2012). See also: ‘New Israeli Protest Called Off’, Sydney Morning Herald, 7 January, 1972

[viii] Under the Public Order Act, ‘unreasonable obstruction’ means ‘an act or thing done by a person that constitutes, or contributes to, an obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights or privileges (including rights of passage along the public streets) where, having regard to all the circumstances of the obstruction or interference, including its place, time, duration and nature’. Public Order (Protection of Persons and Property) Act 1971 (Cth) s.4.(1)

[ix] Simon Bronitt & George Williams, ‘Political Freedom as an Outlaw: Republican Theory and Political Protest’, Adelaide Law Review, 18, 1996, p. 302

[x] Trespass on Commonwealth Lands Ordinance 1972 s. 3

[xi] Robinson, ‘The Aboriginal Embassy’, p. 55

[xii] Golden-Brown and others v Hunt and another, 12 September, 1972, Federal Law Reports, 19, 1972, pp. 438-451

[xiii] Robinson, ‘The Aboriginal Embassy’, p. 62

[xiv] Schaap & Muldoon, ‘Aboriginal Sovereignty and the Politics of Reconciliation’, p. 547

[xv] Coral Dow, ‘Aboriginal Tent Embassy: Icon or Eyesore?’, Parliamentary Library Paper, 4 April, 2000, http://www.aph.gov.au/library/Pubs/chron/1999-2000chr03.htm (accessed 13 January, 2010)

[xvi] Australian Heritage Council, ‘Aboriginal Embassy Site’, Australian Heritage Places Inventory, http://www.heritage.gov.au/cgi-bin/aphi/record.pl?RNE18843 (accessed 13 January, 2010)

From the newly released NA papers: Thatcher, riots and the aftermath of Scarman in the early 1980s

Screen Shot 2014-12-30 at 11.01.05 pm The National Archives have just released archival documents relating to the Thatcher government for 1985 and 1986, with further releases in July 2015. There have been many media reports already on many other aspects of the papers (such as the introduction of the Poll Tax in Scotland, the Anglo-Irish relationship and her love-hate relationship with Australian PM, Bob Hawke) but I thought I’d explore one of the digitised files that has been so far overlooked – a file on public disorder and the aftermath of the Scarman Report on the Brixton Riots, spanning from late 1981 to late 1985 (PREM 19/1521).

As I have written before, the 1981 riots and the inquiry by Lord Scarman signified a low point in the history of Thatcher’s first term as Prime Minister, with public support for the government and for the police greatly dropping amongst large sections of the British population. From this position, the government generally accepted the recommendations of the Scarman Report and on paper, agreed to implement most of its recommendations. The most significant reform was the introduction of the Police and Criminal Evidence Act 1984 (which came into effect in January 1986), but scholars, such as John Benyon, have since argued about the effectiveness of the government’s other initiatives.

The newly released file shows the government’s statements about the extent of their actions in line with Scarman’s recommendations. But the file also shows that the government was still sceptical of Scarman’s suggestion that unemployment, poor housing and declining access to social services were underlying reasons for the outbreak of the riots across Britain in 1981. After further unrest broke out in September 1985 in the Birmingham borough of Handsworth, newly appointed Home Secretary Douglas Hurd made a speech to the Association of Chief Police Officers stating:

Handsworth needs more jobs and housing. But riots only destroy. They create nothing except a climate in which necessary development is even more difficult. Poor housing and other social ills provide no reason for riot, arson and killing. One lady interviewer asked me whether the riots was not a cry for help by the rioters. The sound which law-abiding people at Handsworth heard on Monday night… was not a cry for help but a cry for loot.

Hartley Booth, Margaret Thatcher’s Special Adviser on Home Affairs, repeated this assertion in a report to the Prime Minister in the days after the unrest in Birmingham. Booth criticised Labour MP Claire Short for her statement that ‘unemployment caused the riot’ and said that ‘socialist-style policies’, such as ‘huge state intervention and subsidy’, had failed to quell unrest. Booth reported to Thatcher:

there is overwhelming evidence that [the unrest] was a criminal exercise, carried out by selfish, greedy and idle youths

Booth also suggested that it was outside agitators and groups from the far left that contributed to the riot. As well as proposing that people had come from places such as Wolverhampton, Sparkbrook and Manchester to take place in the riots, Booth also asserted:

The police have clear evidence, as has Special Branch, that a group from Notting Hill with Far Left connections – entitled the Tabernacle Group – were present in Birmingham this week, and were the architects of a demonstration which it was intended should be filmed by the television cameras yesterday outside the Law Courts.

This suspicion of ‘outside agitators’ were responsible for the riots was a subject that Thatcher’s advisers came back to between 1981 and 1985 (I have already written about a report drawn up by Peter Shipley for the Home Office in 1981 which suggested that ‘outside elements’ were involved in the 1981 riots here). Thatcher’s Private Secretary for Parliamentary Affairs, Tim Flesher, wrote a memo in November 1982 that a ‘Trotskyite rent-a-mob’ had attempted to disrupt a meeting of the Brixton Police Community Liaison Committee. Tony Rawsthorne, the Private Secretary for Home Secretary Leon Brittan, wrote to Flesher in July 1983 to outline the risks of public disorder that summer and included the following passage about ‘subversives’:

the assessment from the Security Service is that there is no intelligence to suggest that any black or white subversive groups or individuals are planning civil disturbances or that they are considering how they might exploit any disturbances that might otherwise arise. If disturbances were to break out, some subversive groups would be likely to move quickly to extract the maximum political advantage from them.

After the 1985 riots, Quintin Hogg, the Lord Chancellor, expressed in a letter to the Home Secretary’s staff: I hope the factual account of Handworth [sic] will either confirm or repudiate the impression I get which is that there was an element of deliberate planning there either by drug pushers or left wing anarchists.

The file also has two memos that refer to a special report on subversive groups drawn up by MI5, but there doesn’t seem to be evidence of this report in the digitised file. A memo from Thatcher’s Principal Private Secretary, Clive Whitmore, to Cabinet Secretary, Sir Robert Armstrong, dated 22 Feb, 1982 mentioned the report:

The Prime Minister was very interested to read the report by the Security Service on exploitation by subversive groups of last year’s civil disturbances which you sent me with your minute AO7560 on 19 February 1982.

I am unsure why this report seems to be missing from the digitised file. Maybe it is something worth FOI-ing in the near future.

Local legal history: A microcosm of the South Australian government’s ‘law & order’ agenda under Rann

While I was a criminal justice researcher in the public sector, I got really interested in sentencing laws in Australia and their history. This might form part of a broader paper about the pursuit of a ‘law and order’ agenda in South Australia under the 2002-2011 Rann government.

Rann

As Don Weatherburn wrote in his book Law & Order in Australia (pp. 28-32), state governments across Australia started to promote tough ‘law and order’ agendas in the 1990s and into the 2000s. Both Liberal/National and Labor governments have been keen to promote this agenda (taking inspiration from the United States and the UK). South Australia was no exception. Although South Australia had a Liberal government for most of the 1990s, it was not until the final years of the Olsen government that ‘law and order’ became a hot political issue. This delay in joining the ‘law and order; bandwagon probably owes much to the small ‘l’ liberal outlook of the Attorney General Trevor Griffin, who had been part in the position of Attorney-General (or Shadow Attoryney-General) since the late 1970s. But once Mike Rann became Labor leader in South Australia in the late 1990s, he was willing to push this ‘law and order’ agenda – a policy area where Labor had seemed weak traditionally.

Rann’s ability to promote Labor and himself as ‘tough on crime’ and in tune with the concerns of the tabloid media first pressured Griffin and the Liberal government into reforming the law concerning break and entering during a moral panic over ‘home invasions’. The Criminal Law Consolidation (Serious Criminal Trespass) Amendment Act 1999 introduced tougher penalties for break and entering offences, but also inserted into the Criminal Law (Sentencing) Act 1988 an instruction for sentencing judges that stated:

A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders…

Once Rann’s Labor government came into power in 2002, s. 10 of the Criminal Law (Sentencing) Act 1988 was amended on several occasions to instruct sentencing judges that they needed to consider certain things before handing down their punishments to offenders. But the amendments made seem to have had little coherence and look as if they were inserted into the legislation after a particular issue became a media storm for the Rann government. For example, the Statutes Amendment(Bushfires) Act 2002 stated that in relation to bushfires and arson, the primary policy should ‘bring home to the offender the extreme gravity of the offence’ and ‘extract reparation from the offender… for harm done to the community’.

In 2005, the Statutes Amendment (Sentencing of Sex offenders) Act, among other things, inserted another primary policy into s. 10. This third primary policy of the section now stated:

A primary policy of the criminal law is to protect children from sexual predators…

There was little explanation by the Government for the reason for inserting the new primary policy concerning child sex offenders, other than the Attorney-General Michael Atkinson asserting that ‘[t]his government is tough on convicted paedophiles and pederasts’ and that it related to the State Strategic Plan’s priority about reducing crime rates (House of Assembly, Hansard, 11 April 2005: 2274). Opposition MP Vickie Chapman said that this amendment would ‘create a plethora of primary purposes’ and proposed that ‘surely it is a contradiction in terms to have more than one primary or chief purpose’ (House of Assembly, Hansard, 4 May, 2005: 2516). In the Legislative Council, Robert Lawson further declared that this amendment was ‘window dressing’ and that the Government were ‘just simply seeking to put political rhetoric into the sentencing legislation’ (Legislative Council, Hansard, 26 May, 2005: 1949).

Chapman also asked the Attorney-General whether the two prior primary purposes had had any impact upon the sentencing decisions by the courts, asking for sentencing comments which refer to these primary policies, with Atkinson stating that he only aware of one case explicitly mentioning this policy (House of Assembly, Hansard, 4 May, 2005: 2516).

Indeed when the Rann governmment tried to insert another primary policy into s. 10 in 2007, Opposition Leader Isobel Redmond questioned why the insertion of another primary policy statement was necessary, based on the impact that the three previous primary policy statements had had on sentencing. Redmond said that she had asked members of the legal community whether these primary policy statements had had any effect on sentencing and claimed that ‘each of them was at a loss to give me any precise answer’, adding:

I simply wonder how, in practice, it will make any real difference to the way these matters are dealt with when an offender is before a sentencing judge (House of Assembly, Hansard, 6 March, 2007: 1935).

By the end of the decade, s. 10 was a conglomerate of different primary policies that reflected the reflexive nature of the Rann government to public/media concern over certain ‘law and order’ issues. Before these primary policies were removed from the legislation in 2012-13, the primary policies of s. 10 read:

(1b) A primary policy of the criminal law is to protect the safety of the community.
(2) A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.
(3) A primary policy of the criminal law in relation to arson or causing a bushfire is—
(a) to bring home to the offender the extreme gravity of the offence; and
(b) to exact reparation from the offender, to the maximum extent possible under the criminal justice system, for harm done to the community…
(3a) A primary policy of the criminal law in relation to offences involving firearms is to emphasise public safety by ensuring that, in any sentence for such an offence, paramount consideration is given to the need for deterrence.
(4) A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.

As the title of this blogpost said, this s. 10 can be seen as a microcosm of the ‘law and order’ agenda of the South Australian government under Rann. In 2012, legislation was passed by the new Jay Weatherill government  that removed the terms ‘primary policy’ from the Criminal Law (Sentencing) Act, which came into effect in March 2013. The new s. 10 now specified that in certain cases concerning serious criminal trespass, arson, child sex offences or firearms, the court had to take certain things into consideration. The new s. 10 read as:

(2) In determining the sentence for an offence, a court must give proper effect to the following:
(a) the need to protect the safety of the community;
(b) the need to protect the security of the lawful occupants of their home from intruders;
(c) in the case of an offence involving the sexual exploitation of a child—the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence;
(d) in the case of an offence involving arson or causing a bushfire—
(i) the need to protect the community from offending of such extreme gravity by ensuring that paramount consideration is given to the need for general and personal deterrence; and
(ii) the fact that the offender should, to the maximum extent possible, make reparation for the harm done to the community by his or her offending.

As John M. Williams has argued, ‘law and order’ was central to the vision of the Rann government, seeing it as a potential vote-winner, a measure to demonstrate that the government ‘as listening’ to the public and the media and something to undermine the criticisms of the Opposition. This examination of s. 10 of the Criminal Law (Sentencing) Act and how it was subject to various amendments over the decade that Rann was in power reveal that this government tried to subvert the independence of the criminal justice system and bend the decision-making of the courts to the political will of the ruling government. As the Rann era passes into history, hopefully historians, political scientists, lawyers and criminologists will start to examine the major shifts in the South Australia’s criminal justice system since the late 1990s and determine how they fit into a wider ‘law and order’ trend amongst Australian state governments.

Photo credit: Gary Sauer-Thompson

The left, the state and anti-racist legislation: The example of the CPGB

The Guardian Australia today featured a debate between two figures of the left, Alana Lentin and Antony Lowenstein, on whether Section 18c of the Racial Discrimination Act 1975 (Cth) should be on the statute books, after the announcement by the new Liberal government that they would seek to repeal this section of the legislation. This has raised the issue for the left in Australia of how effective can the state be in addressing racial discrimination and should anti-racists rely on the state in the fight against racism.

This issue has also been much debated by the British left since the introduction of legislation prohibiting racial discrimination in 1965 with the Race Relations Act. People following this debate may be interested in a paper that I wrote on the subject, particularly looking at the Communist Party of Great Britain’s reaction to the Race Relations Act and how it affected the Party’s anti-racist efforts. The introduction of the paper, published in the conference proceedings for the 2009 conference of the Australasian Association of European Historians, outlines the argument:

Since the 1960s, many involved in anti-racist campaigning in Britain hadargued that any positive action that the institutions of the state (such asthe police, the judiciary and the Home Office) could take to combat racism would be hindered by the racism that was pervasive within these institutions. Many on the left, in the anti-racist movement and within Britain’s black communities had criticised Lord Scarman for his statement in his 1981 Inquiry into the Brixton riots that ‘“Institutional racism” does not exist in Britain’ and this denial of institutional racism,which was prevalent in the thinking of the Government at the time, left many radical activists within the anti-racist movement unwilling to be involved in any state-related anti-racist activities. However theCommunist Party of Great Britain (CPGB), as a large and influential body within the British labour movement, was an important radical organisation, which sought to work with the state in anti-racist campaigning. This stemmed from a strategy of working within a parliamentary democratic framework and establishing a broad left alliance, which would involve many trade union and Labour Party members, who may not be willing to take any radical actions. This article will examine how the CPGB appeared to counter the radical trend amongst anti-racist campaigners and how they attempted to work with the institutions of the state, primarily in campaigning for the enforcement of the Race Relations Act. This article will look at the problematic position the CPGB found itself in by trying to maintain its broad left alliance while criticising racism within the labour movement and the limitations of appealing to the state to be the decisive force in combating racism. The CPGB’s balancing act between a reformist and revolutionary strategy for tackling racial discrimination, by trying to involve both the state and its hostile critics, gives an insight into how difficult it can be for progressives to attempt to combat racism through the institutions of the state without their agendas being reduced to a very limited scope.

The paper can be found here. As always, if you can’t access the paper, please email me.

‘It’s a video nasty!’: Some background to the The Young Ones episode

Part of my research into my article on The Young Ones and Thatcherite Britain has involved looking at the moral panic concerning the ‘video nasties’ of the early 1980s. The boom in video sales in the first half of the 1980s provided a challenge to the authorities that classified film in the UK and there was a concern that objectionable (‘obscene’) material could get into the hands of children as videos could be viewed anywhere, rather than just in the cinema. The video format also made it easier to transfer material from the United States and Europe into the UK, getting around the problem of the British censor in many instances. Coinciding with a new wave of horror films (starting in the early 1970s with films like The Texas Chainsaw Massacre), this gave rise to the concern that Britain was being flooded with ‘video nasties’. While anger grew amongst Britain’s political and moral figures over the existence of these ‘video nasties’, they grew more desirable amongst British youth, as depicted in The Young Ones episode ‘Nasty’ (from 10.30 in clip below).

Conservative MP Graham Bright introduced a Private Member’s Bill, which eventually became the Video Recordings Act 1984. You can read the transcripts of the House of Commons and House of Lords debates about the Bill, which make for some interesting (if not amusing) reading. Margaret Thatcher also made mention of the Bill in March 1984, when addressing the Conservative Central Council, declaring:

And I am also delighted that, in order to protect our children from the evils of pornography, the House of Commons has now passed Graham Bright’s Video Recordings Bill. There must be no place in Britain for the video nasty. When that Bill finally reaches the Statute Book, parents everywhere will applaud.

The Video Recordings Bill has been viewed since as a ‘moral panic’ (see this academic article) where the traditionalist section of the Tory Party was able to assert itself within the Thatcherite paradigm. Thatcherism was about mixing these ‘traditional’ Tory values with an aggressive neo-liberal agenda and often the ‘moral majority’ within the Conservatives was sidelined by the ‘modernising’ aspects of Thatcherism. This episode (and satirised by The Young Ones) shows the dynamic (and not necessarily fixed) nature of Thatcherism in the early 1980s before she reached her hegemonic height in the mid-1980s.

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