Paul Bongiorno
The Racial Discrimination Act’s section 18c charade

Eight o’clock on Tuesday morning, four Liberal moderates met with Malcolm Turnbull. The prime minister was apprehensive about the visit. It looked like a delegation that was about to inform him they would cross the floor and defeat the government if he wanted to legislate changes to the wording of section 18C of the Racial Discrimination Act.

His fears were well based. The day before, one of the delegation, Victorian MP Russell Broadbent, had publicly stated that the government didn’t need to touch that section to achieve reform. Instead, Turnbull needed only to take up the recommendations of the parliamentary human rights committee, of which Broadbent is an influential member. That would make the Human Rights Commission more accountable to parliament and would overhaul the processes dealing with complaints.

It was good advice but Turnbull, under enormous pressure from hardline conservatives inside and outside the government, was about to ignore it. Turnbull had made his decision at a long cabinet meeting in Sydney two weeks earlier. Coincidentally, it was the day controversial cartoonist Bill Leak died suddenly. Leak’s brush with 18C – for a cartoon many found offensive and racist – was the reason Turnbull gave this week for ditching 16 separate assurances that he had “no plans to change 18C”.

In something of a rewrite of history, Turnbull now wants us to read a blog he wrote in 2014 as a criticism of Tony Abbott’s lack of due cabinet process rather than as being critical of Abbott’s plans to weaken the defences against racism. Liberal MPs in ethnically diverse marginal seats don’t buy it. They see the change of tack completely in terms of the government’s parlous position in the polls and Turnbull’s need to head off the Abbott forces he fears are coming to get him.

The four confronting Turnbull in his parliament house office would normally be seen as his allies. Could it be that they would now be instrumental in fatally damaging his government on the floor of the parliament?

As it happens, they had read the play better than Turnbull and the conservatives. They wanted to know if the proposed amendments would be introduced in the senate or the house of representatives. “The senate,” Turnbull told them. He then asked if they would reserve their right to vote against the government when the legislation was discussed in the joint party room later that morning. He was mightily relieved when they said no.

They said no for the reason that they, like the prime minister, were well aware that the changes had very little if not any chance at all of passing the senate. The bills defeated there would then not be presented to the house. Their assessment was vindicated later that afternoon, when the Nick Xenophon Team announced its three senators would join Labor, the Greens and Jacqui Lambie in refusing to touch 18C.

On Wednesday, Labor tried to have the bills debated in the house of representatives. Bill Shorten said the government’s choice of the senate was nothing more than a cynical attempt by the prime minister “to be able to make the claim to the extreme elements in his party room that his government is taking action … while hoping MPs in the chamber can avoid having to vote on the issue”. The champions of free speech in the government immediately gagged the debate. 

So the plan to “strengthen the protection of free speech”, as Turnbull claimed, was dead on arrival. But the charade had to be played out, and not without damage in the broader electorate. One of the moderates, Craig Laundy, whose Western Sydney seat of Reid has a significant proportion of ethnic voters, spoke passionately against the changes in the party room. He later told Ten Eyewitness News: “I’ve prosecuted the case as hard as I can, obviously, and now I’ve got to get my head around the changes and go out and sell them.” He was asked what backlash he was expecting. His forlorn response: “Time will tell.” 

He and other MPs in his situation, such as John Alexander in Bennelong, where there is a large Chinese community, had support from the normally conservative minister for international development Concetta Fierravanti-Wells. She warned her colleagues that they would be judged on what gets up in the party room whether or not it passes the parliament. Labor would make sure of that.

And not only Labor. Every community group contacted by the media condemned the proposed changes. A statement signed by representatives of the Greek, Armenian, Chinese, Indian, Aboriginal and Jewish communities said these changes “will give a free pass to ugly and damaging forms of racial vilification which do not satisfy the stringent legal criteria of harassment and intimidation”. In a separate statement, the executive director of the Australia/Israel and Jewish Affairs Council, Colin Rubenstein, said: “Removing the words ‘insult’, ‘offend’ and ‘humiliate’ from section 18C, as proposed, and replacing them with ‘harass’ will, in our view, significantly weaken legislation that has worked effectively for over 20 years”.

In an effort to temper the anger directed at him and his government, Turnbull began calling community leaders to assure them that his proposals were stronger, clearer and fairer law that would strengthen our successful multicultural society. He failed abysmally to persuade Rubenstein for one. 

This in itself should be a huge flashing light for Turnbull, who has a large Jewish community in his own electorate. In the past he has acknowledged that many of these constituents were survivors of the racial vilification that led to the Holocaust. The claim a higher bar such as “harassment” can foster civil and respectful speech in our society is a nonsense. This, combined with an endorsement from the overtly racist One Nation, was another indication of how far to the right Turnbull has strayed. Senator Malcolm Roberts says he’s “very happy that the government is starting to actually follow One Nation”. 

One minister can’t understand why Turnbull and Attorney-General George Brandis have gone as far as they have down the path on the issue. If it was to assuage the selective obsession of “free-speech zealots” at the Institute of Public Affairs or even The Australian, it is a faint hope. They are now intent on holding the prime minister to his new-found championship of their cause. This is a cause, according to John Roskam of the IPA, that Turnbull once dismissed as follows: “About 100 people care about 18C and there are about 16 million people on the electoral roll.”

Deputy Prime Minister Barnaby Joyce warned the joint party room that the longer they talk about 18C the more votes they stand to lose. Turnbull apparently agrees. He told his Tuesday morning interlocutors, “It’s just like same-sex marriage; we have to get it off our plate.” That was not taken to mean Turnbull thinks marriage equality is already off his plate, now that the parliament has rejected the idea.

Conservatives such as Craig Kelly are urging Turnbull to have another go at getting it through. But there is a suggestion Immigration Minister Peter Dutton believes a voluntary mailout plebiscite is a better solution. The trouble with that is it puts gay marriage back on the plate with all sorts of people determined to make quite a meal of it. Turnbull confidant Arthur Sinodinos agrees the Liberals can’t go to the next election without having resolved the question a majority of Australians believe parliament has the duty to address.

There was more evidence this week that the government needs to quickly address the funk in which voters perceive it to be. The Essential poll had the Liberals trailing Labor by 10 points in the two-party preferred. 

It also ran a poll on attributes of the two major parties, and found the Liberals are seen to be too close to big corporate and financial interests by a whopping 71 per cent of voters. This confirms feedback government MPs are getting from their electorates about the $50 billion tax cut for big corporations. It is toxic and there are indications Treasurer Scott Morrison will accept Labor and the senate rejecting it. Sixty-eight per cent believe the government is out of touch with ordinary people. And, dangerously, 68 per cent of voters see the Liberals as divided.

Labor fared much better. Its recent stance – against the tax cuts, for a banking royal commission, against the penalty rate cuts and against family payment cuts – has it on the right side of the argument as far as voters are concerned. It is more in touch, less divided and less beholden to the big end of town. This goes a long way to explain why a less popular Bill Shorten has his party in a much stronger position.

It also suggests that the government’s decision to get down and dirty with Shorten is not the answer. Calling the Labor leader a liar, a hypocrite and a phoney, as the prime minister and his colleagues have started to do, won’t work if voters see it as nothing more than a distraction from government policies they think are screwing them.

More delivery – such as getting the childcare package through the senate, as happened this week, or actually implementing the Snowy Mountains Hydro expansion – is surely a better plan.

It would go further to ensuring the government reaches the next election in better shape than it is now.

This article was first published in the print edition of The Saturday Paper on March 25, 2017 as "BetweenTurnbull and the 18C".

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Paul Bongiorno is a columnist for The Saturday Paper and a 30-year veteran of the Canberra Press Gallery.

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