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This article is an adaption based on a talk given by Senator Stoker at LibertyFest Brisbane 2018. 

I greatly appreciate the opportunity to speak at the LibertyFest conference today.  A festival to celebrate liberty is the type of event under threat these days.  It’s worth reflecting that the first casualty of liberty is the right to free speech.

Ronald Reagan, whom despite his big-government tendencies, I rather admire, had a succinct and simple way of expressing himself.

He said “Freedom (or liberty) is the right to question and change the established way of doing things.  It is the continuous revolution of the marketplace.  It is the understanding that allows us to recognise shortcomings and seek solutions.”

The phrase “marketplace” is often used in its commercial sense. But I like to think of it in terms of the marketplace of ideas.  At the recent Brisbane launch of his book, the Art of Persuasion, John Howard made his usual common sense observation that politics should be about the “battle of ideas”.

A “battle of ideas” is only sustainable when the battle is allowed to take place.  Increasingly, these days the closing down of the field of debate, discussion and opinion is the norm.  It has delivered what is often described as a “silent majority,” in which large numbers of people find the toxicity of the political sphere so repugnant that they’d rather quietly live out their lives and avoid it, even when they have clear views.

In the foreword to Peter Kurti’s book, The Tyranny of Tolerance, John Howard writes “The quality of public debate in Australia has recently taken a dramatic turn for the worse.  Intolerance and bigotry have been displayed towards people expressing traditional views on social issues.  This has occurred, incredibly enough, in the name of greater tolerance and acceptance of alternative points of view.  Companies have even been targeted or vilified because of the personal view of certain officers or employees.  The trend represents a root and branch attack on free speech”.

John Howard appropriately labelled this phenomenon “minority fundamentalism”.

It’s true that minority groups throughout history have been subject to persecution and discrimination. The Jewish people suffered through hundreds of years of persecution in Europe long before the Holocaust and the creation of Israel.

However, it seems now that the pendulum has now swung the other way.  Quite rightly, there’s no place for unfair discrimination in a civilised society. There is a rising concern, however, that now we have an increasingly self-assertive minority riding roughshod over the will of the majority.

Peter Kurti makes the observation that “It is no longer the display of personal conviction that counts but the deliberate and even ostentatious display of what is presented as ‘tolerance’.  In truth this tolerance is not open-mindedness.  It is a form of moral relativism concerned with elevating the rights and interests of any who are perceived to be the victims of discriminatory or marginalising behaviour”.

So why has there been a growth in what Mr Howard describes as “minority fundamentalism”?

Minority groups have become more organised and confident asserting themselves in public debate. But that’s not the whole story. The most zealous minority fundamentalists have now developed a strategy which relies on undermining others, often through verbal and even physical abuse. The recent attempts by activists to shut down Bettina Arndt’s lectures on campus are a case in point.

Prior to direct confrontation, however,  there’s a process of change that’s happening outside the wider purview of people.

I recently wrote an article for The Spectator entitled No Mandate?  No Problem.  The gist of the article was that minority groups have had tremendous success establishing clout and influence in our most important centres of cultural and political power. This has enabled them to achieve social change far more quickly than having to navigate the inconvenience of the democratic process.  Consider the establishment of “They Day” in the Victorian public service – a day in each month when gendered language is not used in the office, or with the public.  It’s a bureaucratic decision that arguably attempts to implement significant social change, and yet the proponent remains unknown and unaccountable for the decision.

In previous times, government agencies set policy to ensure their own effective and efficient running; in fact, operational policy was needed to allow the agency to operate.  A good operational policy in one agency might be adopted by another agency as a smart way to improve operation and service delivery to the public.  Today, that policy delves into the realm of social-think, with no mandate and serious potential to undermine representative processes.  There are many actions that appear minor in practice, badged as “best” or “contemporary” practice, but in aggregation have significant capacity to affect our social mores.

Setting new standards is not only restricted to those people who want to make a mark in the public sector. It’s becoming conspicuous in the private sector too.

‘Social licences’ to operate and ASX guidelines

It was to David Murray’s credit, the Chairman of AMP, that he called out proposed changes to the ASX’s corporate governance guidelines as a distraction that would weaken board accountability. The draft guidelines require public companies to “preserve their social licence to operate,” by “having regard to the views and interests of a broader range of stakeholders than just the entity’s security holders.”

The stakeholders public companies would be expected to account for in running their business includes everyone from employees, customers, suppliers, creditors to taxpayers and virtually anyone in between.

While the guidelines are not legally binding, companies which choose to implement their own corporate governance rules are expected to front up and explain why they’ve departed from the received wisdom of the Australian Stock Exchange.

Murray was one of a lonely few to stand back and scrutinise the idea of forcing companies to lift their gaze from the narrow measures of profit and loss, and factor in the needs of society at large.

It’s a good thing he did. Encouraging corporate executives and boards to try and square the interests of their shareholders with some undefined notion of the greater good is a Trojan horse for importing social activism into the board room.

To the uninitiated, the idea that companies should take stock of how their actions affect the world around them sounds like a no-brainer.

The truth, scarcely acknowledged, is that corporations have been entitled to take into account the interests of society and other social goods for more than a hundred years. In the 1880s, Lord Justice Bowen proclaimed that “the law does not say there are to be no cakes and ale, but that there are to be no cakes and ale except such as are required for the benefit of the company.”

The takeout of Lord Justice Bowen’s dictum was that it’s perfectly fine for a company’s board to have an eye to the wider interests of the community, provided that doing so does not come at the expense of shareholders’ interests. In other words, decisions which eschew short-term profit to preserve a company’s good name and brand are perfectly consistent with acting in the shareholder interests.

This exposes an uncomfortable truth: for the ASX’s social licence to be anything more than an empty platitude, it must enable companies to take into account stakeholder interests where to do so is not in the shareholders’ interests.

If applied in practice, this sleight of hand would turn the most fundamental principle of corporate law on its head.

Of course, asking the boards and executives that are the custodians of much of Australia’s wealth to reconcile the interests of shareholders with an open-ended list of stakeholders and trendy causes raises difficult questions in practice.

After all, what best serves the interests of the community, the taxpayer and society is in the eye of the beholder.

Take the issue of “third-world sweat shops” – a perennial object of scorn of activists and NGOs around the world. Major Australian retailers like Target, Kmart, and Big W among others have come under scrutiny for their use of cheap labour factories in developing nations.

If you take Oxfam at their word, sweatshops are exploitative and inherently immoral. On the other hand, there’s an alternate view held by a range of leading economists that so-called sweatshops provide an all-important first step towards economic development. Factory workers in Bangladesh, Ethiopia and the Philippines typically earn wages well above their countries median income, while the investment of foreign capital helps spur greater economic growth over the long run.

Like any issue worth debating, sweatshops raise difficult questions on which reasonable minds can disagree. Granting public companies a “social licence to operate” won’t make these debates disappear. It will, however, embolden boards and executives to impose personal political views on their company under the flimsy guise of stakeholders’ interests.

Although the concept of stakeholders’ interests is impossibly malleable, the ASX has not been shy in offering up its own suggestions about the types of concerns companies ought to have front of mind.

Some of the buzzwords that follow the guideline’s first mention of “social licence to operate” include providing workers with a “living wage”, avoiding “aggressive tax avoidance” and upholding “human rights.” There are also entire paragraphs devoted to the twin dogmas of diversity and gender targets, effectively stating that companies which are yet to adopt aggressive gender quotas are on the wrong side of history.

These are the kinds of clichés you’d expect to read on a Get Up how to vote card – not the rulebook for directors sitting at the helm of Australia’s biggest enterprises.

Directors are also cautioned to be wary of their “perceived impact” on the environment, as though the mere perception of environmental damage is something companies ought to reasonably pre-empt.  Apparently it is not enough to simply ensure that a company’s actual environmental impact is fair.

This exposes the truth that the the underlying intent of these changes is not to deter sharp practice, or conduct which falls short of common decency. Rather, the true purpose is to re-write the norms of the corporate world using the same playbook being imposed in our schools and universities. From a tactical point of view, pursuing this kind of unlegislated change makes sense. After all, polls and elections bear out time and again that the mainstream of Australia is more conservative than the social activists would care to admit. Initiating social change by chipping away at social norms by infiltrating unelected positions of power is a far quicker route to achieving political change than going through the hassle of prosecuting ideas in the public square. This is what the left set out to do with the United States Supreme Court more than 70 years ago. The result was the use of legal activism to deliver same sex marriage, the legalisation of abortion and an enormous expansion in the power of the administrative state without a single vote being cast.

The pitfalls of granting boards legal cover to moonlight as social engineers are already well documented.  Former Dean of the University of Chicago Law School, Daniel Fischel, noted the dangers of corporate social responsibility in a textbook more than 20 years ago. He wrote that “A manager told to serve two masters (a little for the equity holders, a little for the community) has been freed of both and is answerable to neither. Faced with a demand from either group, the manager can appeal to the interests of the other.”

The pushback from the business community against the ASX’s proposed changes has been tepid, to say the least. Most of the criticism has been through anonymous quotes provided to business journalists. Bar David Murray, only a handful have had the courage to go on the record to make their concern known.  The only thing more troubling than this cowardice would be if the silence meant corporate Australia actually believed this proposal was meritorious.

Cultural appropriation

When you realise just how common this kind of minority-led top-down change is, it’s hard not to see it everywhere. Even the world of fiction is not safe.

Earlier this month one of Australia’s most prestigious writing competitions, the Horne prize, changed its rules to prohibit entries which “purport to represent the experiences of those in any minority community of which the writer is not a member.” The rule represents the idea of cultural appropriation – an academic construct which sees the adoption of elements of foreign cultures as a form of colonialism. Witness the hysteria that sweeps across American college campuses during Halloween each year when undergraduates braid their hair in cornrows or dress up as Mexicans.

Named after one of Australia’s most prolific essayists and authors, Donald Horne, the competition seeks entries on the theme of “Australian life” – shining light on a particular aspect of who we are, from a contemporary perspective.

It’s worth reflecting that if authors were forbidden from writing about the experiences of people with different backgrounds to themselves in the 1960s, Horne’s most famous work The Lucky Countrywouldn’t have ever been published. As a result, we would’ve been deprived of one of this country’s most treasured literary works of the last century.  The same could be said about Tim Winton’s Cloud Street, the Secret River by Kate Grenville, and dozens of other great Australian books.

It’s heartening that David Marr and author Anna Funder quit the Horne Prize judging panel in response to the rule change. Thankfully, the moratorium on cultural appropriation has since been rescinded, and entrants won’t be muzzled by this form of political correctness when penning their entries.

However, unless we consciously keep up the fight, we shouldn’t be surprised if avoiding cultural appropriation soon becomes another non-negotiable dictum of polite society. A little more than a decade ago, cultural appropriation was just an arcane construct confined to the ivory towers of elite universities overseas. Fast forward to 2016 and Yassmin Abdel-Magied won national praise for walking out of a speech by American author Lionel Shriver at the Brisbane Writer’s Festival that criticised the debilitating effect of cultural appropriation on fiction and free speech.

The furore over Mark Knight’s cartoon of Serena William’s US open dummy spit shows that expressing outrage over cultural appropriation has fast evolved from a fad into an article of faith among the leftist commentariat.

Shriver again recently raised the ire of the outrage mob for including an African American character in her latest collection of short stories. Lamenting this sorry state of affairs, Shriver said she was “dismayed by how few writers with any serious reputation are willing to put themselves on the line for free speech.”

She observed that the inevitable outcome of this febrile fad that’s engulfed the world of fiction is that writers and editors will begin to self-censor.

You see, writers like Shriver who are pilloried for having the audacity to write about the world beyond the confines of their own lives are just the tip of the iceberg. The real cost lies with the writers without Shriver’s clout, who will self-censor their work out to preserve their professional reputations. There’s also the chilling effect on editors and publications who will start to shun “culturally insensitive” pieces, not because they believe cultural appropriation is a problem, but because it’s simply not worth the drama.

Cultural appropriation is textbook example of the kind of unlegislated social change that the left have been so successful in achieving over the past 30 years.

While the workings of the parliament are completely transparent, captured on the television, reported in Hansard, viewed by the public from the gallery, reported upon in the papers, the processes I’ve mentioned are completely opaque methods by which to set the frame and standard of behaviour.  It would be interesting to study the paper and decision making trail that led to “They Day”, the changes to the ASX guidelines, or the Horne Prize saga. Was it a single ideological person, an overzealous do-gooder eager to please, or a larger and more strategic group of people using their positions of influence to make their agenda happen?

The defining feature of the slow march of minority fundamentalism been its success in avoiding public scrutiny. Instead, it relies on a combination of intimidation, groupthink and reputational coercion. And once a certain momentum is achieved it’s difficult to stop.

The experience of the silent majority

When people talk about threats to free speech, it’s easy to fixate on the most high profile injustices, like the victims of 18C and the baying mobs of undergraduate Trotskyists trying to shut down Bettina Arndt’s appearances on campus.  However, proponents of liberty need to recognise that these cases represent only a small piece of the true toll of censorship.

Every day, there are Australians cowed into concealing their opinions for fear of the backlash. To be sure, repealing legal restrictions on free speech like 18C are a step in the right direction. Whenever they can, members of Parliament should and must take the opportunity to remind the public that free speech is a foundational value of our democracy.

However, as the Canadian columnist Mark Steyn has often said, politics is downstream from culture. Unless we live in a society that appreciates the importance of free speech at the ground level, repealing 18C is a band aid solution to a systemic problem.

I don’t have all the answers about how we face down the threats to free speech within our culture and reignite the battle of ideas. However, part of the solution has to be a cultural shift among not just the right, but free-thinking people more broadly. That means you can expect me to continue to resist threats to free speech in this country.