Malcolm Turnbull had hoped that throwing the controversial Section 18C of the Racial Discrimination Act to a parliamentary inquiry would help resolve an issue that has become totemic for conservatives in the increasingly vitriolic culture wars.
As is his luck these days, it has done no such thing. The Joint Committee on Human Rights has provided extensive and sensible advice on how to improve the processes for dealing with complaints, including to weed out vexatious ones early. But on the core question of the section’s wording, it has tossed that very hot potato right back into the laps of Turnbull and his cabinet.
In a search for maximum consensus among its members the committee, after hearing extensive evidence for the status quo on the one hand and various changes on the other, has presented a “range of proposals that had the support of at least one member of the committee”.
No-one can say it’s not been comprehensive. But the list could have been written without the inquiry.
The current 18C outlaws actions “reasonably likely … to offend, insult, humiliate or intimidate” someone or a group of people, on the basis of race, colour or national or ethnic origin.
Section 18D provides exemptions and defences, including that of “good faith”, “public interest” and “fair comment”.
The options the committee has put are:
no change in wording of 18C and 18D;
amending the act to ensure that the effect of it “is clear and accessible” by codifying the judicial interpretation. This would deal with the problem of the gap between what words like “offend” and “insult” mean in legal cases and their everyday meaning;
removing the words “offend”, “insult” and “humiliate” and replacing them with “harass”.
amending 18D to also include a “truth” defence similar to that of defamation law;
changing the objective test, from assessing the likely effect of the conduct on a “reasonable member of the relevant group” to “the reasonable member of the Australian community”; and
further investigating criminal provisions on incitement to racially motivated violence on the basis that existing state and federal laws have been ineffective.
The 18C debate is a microcosm of the divisions within the present Liberal Party. Even Liberal members of the committee are split and, as the report was released, were arguing their separate cases in the media.
Committee chair Ian Goodenough, a Liberal from Western Australia, says his personal opinion is that the bar is too low – he would favour replacing “offend” and “insult” with “harass”, leaving “humiliate” and “intimidate” as is.
But fellow Liberal Julian Leeser, from New South Wales, argues the current wording is satisfactory and sufficient reform can be achieved by altering the processes.
Those conservatives – politicians and vocal sections of the media – who have their teeth into this issue will put strong pressure on Turnbull to rework the wording.
The Human Rights Commission and its outgoing president, Gillian Triggs, have become high-profile and symbolic targets for the conservatives; the case involving QUT students and the controversy over the Bill Leak cartoon gave them bountiful ammunition.
Cory Bernardi, who recently quit the Liberal Party, has a private member’s bill to which last year he signed up almost all Coalition senators. The bill, removing the words “insult” and “offend”, has gone to a committee and is expected to be debated this year.
Former Senate leader Eric Abetz reminded the government about the bill, saying he hoped it progressed changes to 18C and 18D “in line with the private senators bill, supported by all backbench senators, and with our values”.
The critics won’t be satisfied with just the better processes that have been recommended. This has been set up as a test of Turnbull’s credentials with the “base”.
Deputy Prime Minister and Nationals leader Barnaby Joyce injected a real-world reality check into the debate when he told Sky on Tuesday that in his recent travels in regional areas people hadn’t been raising 18C with him.
Conservative Victorian senator James Paterson acknowledged Joyce had a specific constituency but said he was “disappointed” to hear his comment. Apparently in circles in which Paterson (a member of the committee) moves there is a “very high community expectation that we address this issue”.
Turnbull originally did not want to touch 18C. Under pressure from the agitators, he became more amenable to overhaul – hence the inquiry.
But a glance through the summary of evidence to the committee shows this is another issue on which he can’t win, because feeling runs high on each side of the public debate. It’s also a dangerous issue in marginal seats with big ethnic votes.
Meanwhile Triggs’ term ends mid-year. The government will be searching for a replacement. Turnbull will not adopt Tony Abbott’s advice to scrap the commission. Whoever is chosen will have the task of overseeing not only significant changes to the processes for complaints under the Racial Discrimination Act but also, one would expect, to the commission more broadly. It will be an appointment closely watched.