Substantial changes to section 18C of the Racial Discrimination Act and the operation of the Australian Human Rights Commission will be introduced into the Senate this week as Prime Minister Malcolm Turnbull seeks to avoid a big public fight over the law.
Attorney-General George Brandis will introduce the Civil Law and Justice Legislation Amendment Bill into the Senate later this week, which will amend the Racial Discrimination Act and the Australian Human Rights Commission Act to remove the words “offend, insult, humiliate” from section 18C, and replace them with the word “harass”. There will also now be an objective test for whether a “reasonable member of the Australian community” would believe that a person had been harassed under the changes.
The Australian Human Rights Commission will get powers to terminate “unmeritorious complaints” and limit court access for unsuccessful complaints, Turnbull’s press release stated. In his press conference today with Attorney-General George Brandis, the PM also indicated that “unmeritorious complaints” could also be subject to adverse costs order (meaning those who make complaints could be forced to pay the legal costs for those they make the complaint about). It is difficult to know exactly how this would work at this stage in the process because unlike many other legislative changes, the government has not yet released the legislation.
Such changes would often be first heralded with the release of an exposure draft — as the government did for the marriage equality legislation for the plebiscite — but the first we will see of the legislation will be when Brandis introduces the legislation. Legislation is often, but not always, introduced in the House of Representatives by someone representing the minister in that chamber. The decision for Brandis to introduce the legislation is likely less about having the minister responsible introduce it, but to — potentially — speed up its passage. If the government agrees to amendments proposed by the crossbench, then it can sail through the House of Representatives where the government has a majority. Provided no government MPs cross the floor, that is.
In a combative mood at the press conference, Turnbull said he was aware that the changes would have “many critics and opponents” but is seeking to claim that the changes are “strengthening and clarifying the law” by refining how it can be interpreted by courts:
“Isn’t it about that laws are clear? Isn’t it better when you’re dealing with freedom of speech and you’re dealing with protecting people from racial vilification that the law is clear and in language people can understand?”
It’s a debate the PM clearly doesn’t want to have. He refused to answer a question from Guardian Australia journalist Paul Karp as to why he would not take this contentious social issue to a plebiscite.
“Are we going to have a plebiscite on 18C? It is a contentious social reform that everyone has a stake in. Why are elites allowed to decide this issue, but same-sex marriage is going to be done by a majoritarian popular vote?” Karp asked.
“Thank you for the editorial,” Turnbull responded.
The language being used by the PM to attempt to make it sound like he is actually defending race hate laws comes after several Coalition members in the joint party room meeting raised concern that the changes would be “misunderstood”. Those with significantly multicultural electorates are concerned about losing votes, and Deputy Prime Minister Barnaby Joyce told the party room that the issues people in his electorate talk to him about at the pub are jobs, and the ice epidemic. 18C doesn’t rate.
While those that spoke about concern with aspects of the legislation ultimately agreed to the legislation, it will be a much tougher battle in the Senate for the legislation to pass as is, with Labor and the Greens opposed, the Coalition will need to secure 9 out of 11 of the crossbench in order to pass the legislation. The Nick Xenophon Team has already indicated reservations with the proposal.
One factor to watch will be how the proposed changes are greeted by the biggest lobbyist for the change, News Corp. Today the proposal has been met with glowing approval within the pages of The Australian with one suggesting the legislation could be known as the Bill Leak law. Turnbull cited the Bill Leak case as part of the motivation for the change, but when asked whether the verdict in the Andrew Bolt case would be different under the changes, Turnbull couldn’t say.
“That’s a legal question. I don’t want to express a view on that. I’d simply say that we know, we know, that the language of 18C at the moment has lost its credibility. It is widely criticised. It is held up as being an inappropriate restriction on free speech. It has lost the confidence that a law of this kind needs. So recasting it in clearer language makes it stronger. A clearer law is a stronger law.”
News Corp journalists at the press conference joked before the PM arrived that the changes would still be met with hostility in their opinion pages.
What about 18D? As I understand it, this was the one that got Bolt. Do they still intend to have 18D?
18D is the defences you can use against 18C complaints. No changes to that (from what I’ve heard… as I mention in the story, we haven’t actually seen the legislation yet)
Make it harder? 95% of racial discrimination complaints go nowhere now and there have only been 5 successful prosecutions under 18c in the 20+ years of its existence. The figures suggest it’s hard enough already!
I share people’s concern that Turnbull and co are hellbent on turning the clock back on racial/cultural/religious vilification and weakening the RDA is something no decent, thinking person can accept, but I can’t escape the feeling Turnbull’s mob just want to appear to be doing something- anything- while actually doing nothing much at all. They’ve set us up so well for this. We’ve had fear and loathing of other races/cultures/religions rammed down our throats since Howard introduced it. Ramping it up now as a public ‘debate’ over 18c distracts us from so much else so beautifully.
As a tactic, it’s right up there with Turnbull’s sharing his knowledge of how hard sole parent families have it because of his deprived childhood in the slums of Point Piper staring over at that eyesore, the Sydney Harbour Bridge.
18C is a massive problem for the PM because the longer he spends prosecuting the case of a handful of right wing bigots, the more detached he becomes from the issues that really concern the vast majority and the greater the lead of Labor in the polls.
Trumble is gasping for oxygen, desperate to stay alive hence wooing the bigots; meantime a significant percentage of voters who consider themselves open to harassment may not forgive him.
On the same day as Turnbull did this so poor sainted racist Bleak would have a memorial the victims of his cartoons racism were granted compensation for the abuse they suffered at the hands of white bash artists in the Don Dale prison. The judgement said it was the fault of the white men who did the bashing and did not once blame the parents so all the ranters and racists who protected the racist Bleak should damn well apologise to the kids and their parents right now.
Quote: “Isn’t it about that laws are clear? Isn’t it better when you’re dealing with freedom of speech and you’re dealing with protecting people from racial vilification that the law is clear and in language people can understand?”
Bernard Keane mentioned yesterday an early proposal that included the word “vilification” in previous proposed changes. I still can’t help thinking that if Mr Turnbull does want to protect people from vilification, that including that word would probably have a more effective meaning than some of the words being introduced and displaced.
Absolutely.