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The door has reopened on changes to section 18C of the Racial Discrimination Act, with Malcolm Turnbull announcing a review of the legislation. By Karen Middleton.

The new debate over section 18C and free speech

When George Christensen rose in parliament on September 15 to rail against Muslim immigration, his moderate Victorian colleague Russell Broadbent, who was scheduled to speak next, was offended. Broadbent thought about condemning the remarks, but decided to say nothing. Soon after, he received a sharp prod to his conscience from a fellow Victorian, former MP Petro Georgiou.

While he was in parliament, Georgiou had joined Broadbent and their now-also-retired West Australian colleague Judi Moylan in strongly defending multiculturalism and particularly asylum seekers, sometimes standing against their own party’s policies.

The conversation was enough to persuade Broadbent that he had made the wrong call.

“He was right,” Broadbent told The Saturday Paper this week. “I should have distanced myself.”

So, when the opportunity arose on Monday night, during the same continuing parliamentary debate, Broadbent took it.

He described Christensen’s September speech as “a diatribe about the rise of Islam in this country”.

“The member’s speech was replete with generalisations. There were appeals to fear and prejudice that appalled me,” Broadbent said.

Those on the conservative right of his party saw it as an attack on Christensen’s free speech.

A bitter exchange

Broadbent had notified the Queenslander when the two crossed paths in a corridor two weeks ago that he planned, belatedly, to respond. Unsurprisingly, once he did, Christensen hit back. 

The Liberal National Party member accused Broadbent of being one of parliament’s “politically correct hand wringers”, one of the “elitist set” that had cross-party membership. And he condemned the Victorian for suggesting politicians should be leading their electors on such matters.

“The last time I checked, I sat in the house of representatives, not the House of Lords,” Christensen fired back. “This is why many people are coming to the conclusion that politics is broken: MPs of all political persuasions don’t listen much at all to the public’s concerns and they hardly ever act upon them.”

He said, for the record, that he had condemned “radical” Islam, not Islam overall, saying while Islam is a religion, radical Islam – or Islamism – is an ideology.

For his part, Broadbent says he was criticising the content of Christensen’s speech, not the man himself, whom he likes. He was disappointed that the return of fire was, in his opinion, more personal.

The bitter exchange came as the government announced it was revisiting whether to water down the Racial Discrimination Act to make it easier to insult or offend someone on the basis of race, with Attorney-General George Brandis unveiled the terms of reference for a parliamentary inquiry.

Prime Minister Malcolm Turnbull had initially declared the issue not a priority, after his predecessor, Tony Abbott, abandoned a promise to repeal section 18C, under pressure from lobby groups, including some from Muslim and Jewish communities.

Abbott’s promise was centred on the legal action brought against conservative columnist and broadcaster Andrew Bolt under section 18C, over commentary that questioned the heritage of prominent Indigenous Australians.

At the time, Brandis was leading the campaign to overhaul the act and added to the volatility by famously declaring everyone had “a right to be a bigot”.

But some both outside and inside the government argued the debate around 18C was both creating fear of harassment in ethnic communities and specifically undermining attempts to win co-operation from the Muslim community in battling radicalism in its midst. 

Abbott slipped the announcement into a news conference on anti-terrorism laws. “Leadership is about preserving national unity on the essentials and that is why I have taken this position,” he said in August 2014.

After Turnbull seized the leadership last year, he insisted the matter was closed.  Yet in the past fortnight, he has changed his position, if not his view.

“We are a nation founded on freedoms,” he told parliament, “and clearly always we need to make sure that our laws get the balance right between defending the strength of our multicultural society and the mutual respect on which it depends, and those freedoms.”

Bowen cynical

Shadow treasurer and former immigration minister Chris Bowen took a cynical view. “All of a sudden it’s a priority,” he said. “I’ll tell you why it’s a priority for him – because the extreme right wing of the Liberal Party has told him that it is.”

On Tuesday, Turnbull told the Coalition party room the issue had become a matter of “public discussion and concern”.

The Saturday Paper understands that he and his senior colleagues detect a shift in public mood about the issues around free speech since the Bolt case faded and other cases less directly connected to defending an outspoken member of the political right made the issues more relevant to ordinary people.

Some on the political left have begun to countenance a review, including journalist David Marr.

The Australia/Israel and Jewish Affairs Council is now also adding its voice to those suggesting there is room for improvement.

Government sources point to the case involving Anglo-Australian students at Queensland University of Technology being refused access to computers designated for Indigenous students, arguing that it had broadened the issue beyond the “culture wars” to the practical impact of the law with more relevance to the wider community. “They made it pretty obvious it wasn’t just an esoteric issue of interest to the elites,” one said.

This week, the Federal Circuit Court threw out a complaint that had been lodged against the students over comments they posted on social media about the computer restrictions.

Criticism of HRC

The Human Rights Commission has faced criticism for spending 14 months mediating between the parties. The case proceed to court when that failed.

“We’re not there to second-guess what a court will do,” commission president Gillian Triggs told ABC TV. “We’re there because we must under our statute consider the complaint. We investigate it and try to conciliate it.”

The commission deals with about 22,000 matters relating to racial discrimination each year. Of those, about 2000 become formal complaints and 1 per cent of those proceed to court. Triggs said two-thirds were settled amicably and most were finalised within four months. 

Already under pressure from the government over her criticisms of its asylum-seeker policies, Triggs has defended the length of time the QUT case took, arguing it was “extremely difficult to manage”. The students’ lawyers criticised the commission and the process.

Turnbull joined the critics, blasting the way the commission handled the QUT case and suggesting it could have used an existing provision in the commission’s own statute to rule the case trivial or vexatious. He accused it of wasting the court’s time and the government’s money.

The new examination of section 18C will take the form of an inquiry by the joint parliamentary committee on human rights. A long-time defender of free speech, Turnbull argues this isn’t a reversal of his position but rather a response to a more broad public concern. It is also unlikely to lead to changes as substantial as those first proposed, which included removing the offence of humiliation and adding numerous extra exemptions.

Call for respect

“Our aim is not gesture politics but practical, political consensus building,” Turnbull told Coalition colleagues in their party room. He warned against grandstanding, saying the purpose of reviewing the legislation was not to provide an opportunity for “heroic acts which only lead to grief”. 

He said the issue of racial discrimination “should be discussed with great respect for the views of others” in ways that did not leave the government exposed to criticism, predicting the Labor opposition would “accuse the government of trying to license hate speech”.

Some Coalition MPs representing seats with ethnically diverse populations fear their political opponents will use the issue to persuade constituents that the government is abandoning protections against racist attacks.

Behind the Coalition party room’s closed doors, some expressed concern at being seen to give the issue too high a priority. Others said there were equally members of ethnic communities who were strong supporters of free speech and that the fact section 18C was being used to make a complaint against cartoonist Bill Leak was an opportunity for constructive debate. 

The head of the prime minister’s Indigenous taskforce, Warren Mundine, has also called for changes to 18C, arguing it is stifling debate on important issues including child abuse. 

This week, Brandis unveiled the terms of reference for a parliamentary inquiry. They will allow the human rights committee to examine not only section 18C, which makes it an offence to “offend, insult or humiliate” on the basis of race, but also 18D, which offers protection from action for, among other things, artistic works and fair comment.

It will determine whether either or both, as currently worded, unreasonably restrict free speech.

Some in the government are pressing for a change to the way the Human Rights Commission manages the process of lodging and hearing complaints, rather than omitting the words “offend” and “insult” from the act.

The terms of reference allow for scrutiny of the complaints process. But in the Coalition party room, several MPs emphasised they would not be satisfied with changes to the complaint-handling process alone and that more substantial reform to the legislation was required.

Conservative junior minister Senator Concetta Fierravanti-Wells has called publicly for the insertion of an average-person test to filter out complaints the “ordinary Australian” would consider vexatious or unreasonable. She was among those who spoke in the Coalition party room on Tuesday to reinforce her point.

This week, Triggs indicated she supported a re-examination of the statute governing the commission’s activities: “We would welcome an inquiry, we would welcome an attempt to moderate our statute that would make it a little easier for the commission to say these matters are coming to us and we don’t think that they’ve got any real legs at all.” 

She wasn’t actively endorsing major changes to the Racial Discrimination Act – “We stand by 18C and D.” Triggs did, however, support replacing the words “offend” and “insult” with “vilify”, arguing that would strengthen the act.

The parliamentary committee will report back by February 28. Any change to the act will affect what can be said, written and broadcast with impunity in normal community discourse.

The issue was set against Donald Trump’s win in the US presidential election. Supporters of change to the Racial Discrimination Act were also vocal in their support for the president-elect. “I can see in Donald Trump a lot of me and what I stand for in Australia,” Pauline Hanson said. “I think it’s great.”

And George Christensen was pleased, too. He says he hopes it will herald “a fundamental realignment of conservative politics” in Australia.

The inquiry into 18C might be one small part of that yet.

Note: This piece was modified on November 12, 2016, to clarify the language around applications of 18C.

This article was first published in the print edition of The Saturday Paper on Nov 12, 2016 as "Rigours of speech". Subscribe here.

Karen Middleton
is The Saturday Paper’s chief political correspondent.