Liberal moderates have succeeded in their efforts to ensure a parliamentary inquiry into the vexed issue of reforming the Racial Discrimination Act did not produce a clear and concrete recommendation to overhaul section 18C of the legislation – but a fresh internal fight looms.
As foreshadowed by Guardian Australia on Monday, parliament’s human rights committee tabled a bipartisan report after a three-month public inquiry floating 22 reform options for the Turnbull government to consider – but the new report stops short of making specific recommendations on legislative reform, because the committee members could not reach consensus.
The lack of a settled roadmap in the report tabled on Tuesday afternoon puts the ball firmly back in the prime minister’s court, and will ensure the rolling controversy over the Racial Discrimination Act returns both to the cabinet and the Coalition party room for a third significant phase of debate.
The lack of resolution comes at a time when internal sensitivities inside the government are high courtesy of concerns about a drift in core Coalition support to One Nation, and Tony Abbott’s recent call, ramping up the internal culture war, for the government to woo back its conservative base with a pledge to abolish the Australian Human Rights Commission.
Immediately after the tabling of the report, Liberal moderates and rightwingers resumed their respective campaigns to either overhaul 18C or to limit any changes to the current regime to procedural changes.
The Liberal senator James Paterson, a Victorian rightwinger who favours significant legislative change, and was a member of the committee conducting the inquiry, said Tuesday’s report was “a big step forward on reforming 18C”.
“There is now bipartisan consensus that the status quo must change. Everyone agrees that at the very least, the Human Rights Commission processes have failed and need to be overhauled,” Paterson said after the report was tabled.
“Many committee members, myself included, also feel that 18C itself must be reformed to better protect free speech.
“It’s now up to the government to decide exactly which path to take, but my view is that the words offend, insult and humiliate should be removed from 18C and be replaced by harass.
“18D should also be reformed to bring it into line with defamation law by including a truth defence.”
This view was contradicted by New South Wales moderate MP Julian Leeser – also a member of the human rights committee – who hailed the report as “the first path forwards on fixing the problems surrounding section 18C and resolving this debate”.
Leeser continued to insist – as he has done in internal government debates for some months – that legislative change was unnecessary. “Everyone involved with this law knows that the problem is the process,” the Sydney-based MP said on Tuesday afternoon.
“The way the law is currently being administered allows too many nuisance complaints.
“The threshold for making a complaint is so low as to be virtually redundant. These reforms will see that complaints with no prospect of success, such as those made against the QUT students and Bill Leak, thrown out.”
Andrew Bolt, who has spearheaded the 18C campaign through his News Corp blog and his television program on Sky News, blasted the report as “a menu from no change to tiny change.”
He declared if the government ultimately failed to act on 18C, it would issue an open invitation to conservative voters to support either One Nation or Cory Bernardi’s new Australian Conservatives movement at the next federal election.
Bernardi – who is responsible for triggering the renewed 18C debate in Coalition ranks post election that ultimately led to the human rights committee being given the task of providing options – took to Twitter to blast the committee process as a failure.
Process & bureaucracy. No reform to 18c/18d. No real defence of freedom of speech. Huge FAIL. We need #ABetterWay @AUConservatives @TheIPA
— Cory Bernardi (@corybernardi) February 28, 2017
Paterson, who appeared on the Bolt program on Tuesday night, defended the report, and said the government had now been given everything it needed to overhaul 18C, which he said was a position supported by the “overwhelming” majority of the Coalition party room.
In terms of legislative options, the report spells out several potential pathways, including overhauling 18C to replace “insult” and “humiliate” with “harass”.
Section 18C currently says it is unlawful for a person to do an act in public which is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate” another person or a group of people.
Another option would involve amending section 18D – which creates exceptions for artistic works, discussions, debates, event reports in the public interest and fair comment if it was in “expression of a genuine belief” held by the person making the comment – to include a “truth” defence against discrimination complaints.
Another option would involve changing the objective test currently in the law from “reasonable member of the relevant group” to “the reasonable member of the Australian community”.
In terms of procedural change, there are a number of recommendations, including providing greater assistance to respondents to match what is currently afforded to complainants; and imposing time limits on the complaints-handling processes.
The report also flags giving the Australian Human Rights Commission (AHRC) greater powers to terminate complaints earlier in the process; and restricting access to the courts following the commission’s termination of a complaint.
It also floats new penalties for legal practitioners instituting 18C complaints that have no reasonable prospects of success; and imposing more parliamentary oversight on the AHRC.
The report also supports strengthening education programs addressing racism, and programs educating the community about the protections offered under the RDA.
A spokesman for the Human Rights Commission welcomed the report, and urged the parliament to desist from overhauling the legislation.
“The commission remains of the view that section 18C and 18D of the RDA, as interpreted by the courts, strike an appropriate balance between freedom of expression and protection from racial vilification,” the AHRC spokesman said on Tuesday evening.
