tag:theconversation.com,2011:/fr/topics/section-18c-7896/articlesSection 18C – The Conversation2019-06-13T20:15:53Ztag:theconversation.com,2011:article/1184012019-06-13T20:15:53Z2019-06-13T20:15:53Z6 actions Australia’s government can take right now to target online racism<figure><img src="https://images.theconversation.com/files/279275/original/file-20190613-32342-1sxolha.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Paul Fletcher, Australia's recently appointed minister for communications, cyber safety and the arts, says he wants to make the internet safe for everyone. </span> <span class="attribution"><a class="source" href="https://unsplash.com/photos/QsOEYVZvUiI">Markus Spiske / unsplash</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Paul Fletcher was recently appointed as Australia’s Minister for Communications, Cyber Safety and the Arts. </p>
<p>One of his <a href="https://www.paulfletcher.com.au/media-releases/media-release-fletcher-deeply-honoured-to-be-appointed-minister-for-communications">stated priorities</a> is to:</p>
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<p>continue the Morrison Government’s work to make the internet a safer place for the millions of Australians who use it every day. </p>
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<p>Addressing <a href="https://theconversation.com/racism-in-a-networked-world-how-groups-and-individuals-spread-racist-hate-online-109072">online racism</a> is a vital part of this goal. </p>
<p>And not just because racism online is hurtful and damaging – which it is. This is also important because sometimes online racism spills into the real world with deadly consequences. </p>
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Read more:
<a href="https://theconversation.com/explainer-trial-of-alleged-perpetrator-of-christchurch-mosque-shootings-115041">Explainer: trial of alleged perpetrator of Christchurch mosque shootings</a>
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<p>An Australian man brought up in the Australian cyber environment is the <a href="https://theconversation.com/explainer-trial-of-alleged-perpetrator-of-christchurch-mosque-shootings-115041">alleged murderer of 50 Muslims at prayer</a> in Christchurch. Planning and live streaming of the event took place on the internet, and across international boundaries. </p>
<p>We must critically assess how this happened, and be clearheaded and non-ideological about actions to reduce the likelihood of such an event happening again. </p>
<p>There are six steps Australia’s government can take. </p>
<h2>1. Reconsider international racism convention</h2>
<p>Our government should remove its reservation on Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (<a href="https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx">ICERD</a>). </p>
<p>In 1966 Australia <a href="https://www.humanrights.gov.au/our-work/race-discrimination/guide-law-international-convention-elimination-all-forms-racial#1">declined to sign up</a> to Article 4(a) of the ICERD. It was the only country that had signed the ICERD while deciding to <a href="https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-2&chapter=4&lang=en#EndDec">file a reservation on Article 4(a)</a>. It’s this section that mandates the criminalisation of race hate speech and racist propaganda. </p>
<p>The ICERD entered into Australian law, minus Article 4(a), through the 1975 Racial Discrimination Act (<a href="https://www.legislation.gov.au/Details/C2014C00014">RDA</a>). </p>
<p>Article 4 concerns, such as they were, would enter the law as “<a href="https://www.humanrights.gov.au/our-work/racial-vilification-law-australia">unlawful</a>” harassment and intimidation, with no criminal sanctions, twenty years later. This occurred through the 1996 amendments that <a href="https://www.abc.net.au/news/2016-09-01/what-is-section-18c-and-why-do-some-politicians-want-it-changed/7806240">produced Section 18 of the RDA</a>, with its right for complainants to seek civil solutions through the Human Rights Commission. </p>
<p>With Article 4 ratified, the criminal law could encompass the worst cases of online racism, and the police would have some framework to pursue the worst offenders.</p>
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Read more:
<a href="https://theconversation.com/explainer-what-is-section-18c-and-why-do-some-politicians-want-it-changed-64660">Explainer: what is Section 18C and why do some politicians want it changed?</a>
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<h2>2. Extend international collaboration</h2>
<p>Our government should extend Australia’s participation in the European cybercrime convention by adopting the First Additional Protocol. </p>
<p>In 2001 the Council of Europe opened the <a href="https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/185">Budapest Convention on Cybercrime</a> to signatories, establishing the first international instrument to address crimes committed over the internet. The add-on <a href="https://www.humanrights.gov.au/our-work/cyber-racism-and-council-europes-reply">First Additional Protocol</a> on criminalisation of acts of a racist and xenophobic nature came into effect in 2002. </p>
<p>Australia’s government – Labor at the time – initially considered including the First Additional Protocol in cyber crime legislation in 2009, and then withdrew it soon after. Without it, our country is limited in the way we collaborate with other country signatories in tracking down cross border cyber racism.</p>
<h2>3. Amend the eSafety Act</h2>
<p>The <a href="https://www.esafety.gov.au/about-the-office/legislation">Enhancing the Online Safety of Australians Act</a> (until 2017 Enhancing the Online Safety of Children Act) established the eSafety Commissioner’s Office to pursue acts which undercut the safe use of the internet, especially through bullying.</p>
<p>The eSafety Act should be amended by Communications Minister Fletcher to extend the options for those harassed and intimidated, to include <a href="http://www.legislation.govt.nz/act/public/2015/0063/latest/whole.html">provisions similar to those found in NZ legislation</a>. In effect this would mean people harassed online could take action themselves, or require the commissioner to act to protect them. </p>
<p>Such changes should be supported by staff able to speak the languages and operate in the cultural frames of those who are the most vulnerable to online race hate. These include Aboriginal Australians, Muslims, Jews and people of African and Asian descent.</p>
<h2>4. Commit to retaining 18C</h2>
<p>Section <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">18C of the RDA</a>, known as the racial vilification provisions, allows individuals offended or intimidated by online race hate to seek redress. </p>
<p>The LNP government conducted <a href="https://www.theguardian.com/australia-news/2017/mar/30/senate-blocks-governments-changes-to-section-18c-of-racial-discrimination-act">two failed attempts</a> over 2013-2019 to <a href="https://theconversation.com/explainer-what-is-section-18c-and-why-do-some-politicians-want-it-changed-64660">remove or dilute section 18C</a> on grounds of free speech. </p>
<p>Rather than just leaving this dangling into the future, the government should commit itself to retaining 18C. </p>
<p>Even if this does happen, unless Article 4 of the (<a href="https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx">ICERD</a>) is ratified as mentioned above, Australia <a href="https://www.humanrights.gov.au/our-work/7-are-current-regulatory-responses-sufficient-and-appropriate">will still have no effective laws</a> that target online race-hate speech by pushing back against perpetrators. </p>
<p>Legislation <a href="https://theconversation.com/new-livestreaming-legislation-fails-to-take-into-account-how-the-internet-actually-works-114911">introduced by the Australian government in April 2019</a> does make companies such as Facebook more accountable for hosting violent content online, but does not directly target perpetrators of race hate. It’s <a href="https://www.theverge.com/interface/2019/5/31/18646525/facebook-white-supremacist-ban-evasion-proud-boys-name-change">private online groups that can harbour and grow race hate</a> hidden from the law. </p>
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Read more:
<a href="https://theconversation.com/new-livestreaming-legislation-fails-to-take-into-account-how-the-internet-actually-works-114911">New livestreaming legislation fails to take into account how the internet actually works</a>
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<h2>5. Review best practice in combating cyber racism</h2>
<p>Australia’s government should conduct a public review of best practice worldwide in relation to combating cyber racism. For example, it could plan for an options paper for public discussion by the end of 2020, and legislation where required in 2021. </p>
<p>European countries have now a good sense of how their <a href="https://www.humanrights.gov.au/our-work/cyber-racism-and-council-europes-reply">protocol on cyber racism has worked</a>. In particular, it facilitates inter-country collaboration, and empowers the police to pursue organised race hate speech as a criminal enterprise.</p>
<p>Other countries such as New Zealand and Canada, with whom we often compare ourselves, have moved far beyond the very limited action taken by Australia. </p>
<h2>6. Provide funds to stop racism</h2>
<p>In conjunction with the states plus industry and civil society organisations, the Australian government should promote and resource “push back” against online racism. This can be addressed by reducing the online space in which <a href="https://www.adl.org/resources/backgrounders/from-alt-right-to-alt-lite-naming-the-hate">racists currently pursue their goals of normalising racism</a>. </p>
<p>Civil society groups such as the <a href="https://ohpi.org.au/">Online Hate Prevention Institute</a> and <a href="https://alltogethernow.org.au/">All Together Now</a>, and interventions like the currently stalled NSW Government program on <a href="https://removehatefromthedebate.com/">Remove Hate from the Debate</a>, are good examples of strategies that could achieve far more with sustained support from the federal government. </p>
<p>Such action characterises many European societies. Another good example is the <a href="https://webfoundation.org/">World Wide Web Foundation (W3F)</a>) in North America, whose <a href="https://webfoundation.org/2018/11/join-us-and-fight-fortheweb/">#Fortheweb campaign</a> highlights safety issues for web users facing harassment and intimidation through hate speech.</p>
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Read more:
<a href="https://theconversation.com/racism-in-a-networked-world-how-groups-and-individuals-spread-racist-hate-online-109072">Racism in a networked world: how groups and individuals spread racist hate online</a>
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<h2>Slow change over time</h2>
<p>Speaking realistically, the aim through these mechanisms cannot be to “eliminate” racism, which has deep structural roots. Rather, our goal should be to contain racism, push it back into ever smaller pockets, target perpetrators and force publishers to be far more active in limiting their users’ impacts on vulnerable targets. </p>
<p>Without criminal provisions, infractions of civil law are essentially let “through to the keeper”. The main players know this very well. </p>
<p>Our government has a responsibility to ensure publishers and platforms know what the community standards are in Australia. Legislation and regulation should enshrine, promote and communicate these standards – otherwise the vulnerable remain unprotected, and the aggressors continue smirking.</p><img src="https://counter.theconversation.com/content/118401/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Jakubowicz with colleagues has received funding from ARC for a project on cyber racism. He has published a book with colleagues through Palgrave Macmillan (2017) "Cyber Racism and Community Resilience". He has received funding from the Australian Human Rights Commission and VicHealth for this research. </span></em></p>Racism online is hurtful and damaging. But it can also spill into the real world with deadly consequences – such as the Christchurch terrorism attack.Andrew Jakubowicz, Emeritus Professor of Sociology, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1066152018-11-30T01:18:52Z2018-11-30T01:18:52ZWhy Australia’s anti-vilification laws matter<figure><img src="https://images.theconversation.com/files/246593/original/file-20181121-161627-d0n93x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">High-profile conservatives such as former PM Tony Abbott and commentator Alan Jones often complain that freedom of speech is being stifled, but the research does not support that view.</span> <span class="attribution"><span class="source">AAP/David Moir</span></span></figcaption></figure><p><em>This piece is part of a series on race and racism in Australia. The series examines this complex and incendiary topic, and the role it plays in contemporary Australia. You can read the rest of the series <a href="https://theconversation.com/au/topics/race-and-racism-62794">here</a>.</em></p>
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<p>Nearly 30 years ago, Australians <a href="http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/num_act/avaa1989n48466/">made a decision</a> to start implementing anti-vilification laws. They now exist <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/rda1975202/s18c.html">federally</a>, in every state, and in the ACT. </p>
<p>But unlike many countries around the world, the focus here is on civil laws. Although many states have criminal laws prohibiting serious vilification (such as <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s93z.html">NSW</a> and <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/aa1991204/s131a.html%5D">Queensland</a>), there are no criminal “hate speech” laws at the federal level. In practice, the vast majority of vilification complaints in Australia are dealt with under the civil law.</p>
<p>The basic idea is pretty simple. In a society that aspires to embrace diversity and support the human rights of all, it is not OK to vilify someone (that is, denigrate or defame them) because of who they are, as opposed to something they might have done.</p>
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<a href="https://theconversation.com/explainer-what-is-section-18c-and-why-do-some-politicians-want-it-changed-64660">Explainer: what is Section 18C and why do some politicians want it changed?</a>
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<p>We have been researching anti-vilification laws for more than two decades. So, how well do these kinds of laws work? Do they provide redress and remedies to targets of hate speech? Do they stifle free speech? And, perhaps most importantly, do they reduce the incidence of hate speech?</p>
<p>First, let’s look at whether hate speech laws provide redress and remedies to targets of hate speech. If a person feels that an incident of unlawful vilification has occurred, they can lodge a complaint by contacting the relevant state authority (for example, the <a href="http://www.antidiscrimination.justice.nsw.gov.au/">NSW Anti-Discrimination Board</a>) or the <a href="https://www.humanrights.gov.au/">Australian Human Rights Commission</a>.</p>
<p>There are procedural difficulties in lodging a complaint. For example, the person complaining needs to be from the group that was targeted and has to be able to identify the person about whom they are complaining (which is difficult when vilification happens in public places and the perpetrator is a stranger). The process can also take a long time. This can discourage people from lodging complaints or cause them to give up before the matter is resolved.</p>
<p>After a person lodges a complaint, the authority will assess whether the allegation falls within the definition of unlawful vilification. If so, the authority will investigate and attempt to mediate a resolution. </p>
<p><a href="https://researchdata.ands.org.au/impact-hate-speech-discourse-australia/70810">Our research</a> has found that in about a third of complaints, a successful resolution is reached. This usually means that the person who made the comments agrees to stop making them or agrees to apologise, or the workplace where the comments occurred agrees to hold workshops to educate their staff about appropriate behaviour. These are all good outcomes.</p>
<p>The whole mediation process is confidential, so the public rarely gets to hear about these success stories. But they do show that the laws can provide redress and remedies to targets of hate speech.</p>
<p>The same research project showed that communities targeted by hate speech support the existence of the laws. Even if they never make a formal complaint, people appreciate that the government has legislated to tell everyone that racist, homophobic or other vilification is unacceptable. These laws help people to feel valued and supported. </p>
<p>Unfortunately, there are some gaps in current anti-vilification laws. Most laws don’t cover religious vilification and so, for example, little protection is offered to Muslims, even though <a href="http://www.unswlawjournal.unsw.edu.au/article/anti-vilification-laws-and-public-racism-in-australia-mapping-the-gaps-between-the-harms-occasioned-and-the-remedies-provided/">we know</a> they are one of the most vilified groups in Australia.</p>
<h2>Do hate speech laws stifle free speech?</h2>
<p>One of the most common arguments made by opponents of hate speech laws is that they stifle free speech. But <a href="https://theconversation.com/explainer-how-do-australias-laws-on-hate-speech-work-in-practice-26105">our research</a> does not support this claim. </p>
<p>Only a small number of complaints are lodged around the country each year (about 200), and less than 2% of those complaints end up in a court or tribunal. Of those that do, only half succeed. The most commonly ordered remedy is an apology or correction, or removal of the material from public view.</p>
<p>There is little evidence that people feel some topics are “off limits”. On the contrary – political debate in Australia is robust and wide open.</p>
<p>In fact, some of those who complain most vociferously about being silenced – like <a href="https://mumbrella.com.au/andrew-bolt-wont-be-silenced-by-the-press-council-as-he-refuses-to-respect-proceedings-533740">Andrew Bolt</a>, <a href="https://www.abc.net.au/news/2018-06-07/alan-jones,-tony-abbott-launch-kevin-donnelly-anti-pc-book/9843824">Alan Jones and Tony Abbott</a> – are amongst the loudest and most influential voices in Australia. They are prominent public commentators who enjoy wide media exposure.</p>
<h2>Do hate speech laws reduce the incidence of hate speech?</h2>
<p>This is perhaps the most difficult question to answer. </p>
<p>Our research has shown that there have been some changes in how controversial topics are discussed in outlets like newspapers. Overt racial and other vilification is less common now. Anti-vilification laws have played a part in effecting this change, but lots of other factors have been important, too, including changing social attitudes.</p>
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Read more:
<a href="https://theconversation.com/theres-no-need-for-the-chicago-principles-in-australian-universities-to-protect-freedom-of-speech-107001">There's no need for the 'Chicago principles' in Australian universities to protect freedom of speech</a>
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<p>Unfortunately, as our research confirms, there has been little to no change in the incidence of vilification in public places – on the street, on trains and buses, or in shopping centres, for example. The only shift that has occurred is in who is targeted, with more recent waves of migrants newly targeted. There has been a shift, for example, towards people of African heritage and from the Middle East. </p>
<p>On this level, anti-vilification laws do not seem to have reduced the overall incidence of hate speech.</p>
<p>Another way of measuring the success of anti-vilification laws is in public attitudes. <a href="https://www.humanrights.gov.au/news/speeches/confronting-return-race-politics">Opinion polls show</a> strong public support for the idea that governments should draw a line in the sand – one that says that racist hate speech and other forms of group vilification are unacceptable. </p>
<p>This is perhaps the most important legacy of 30 years of anti-vilification laws in Australia.</p><img src="https://counter.theconversation.com/content/106615/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katharine Gelber has received funding from the Australian Research Council, and from the Academy of Social Sciences Australia.</span></em></p><p class="fine-print"><em><span>Luke McNamara has received funding from the Australian Research Council.</span></em></p>While some complaint that anti-discrimination laws stifle freedom of speech, there is good evidence that they make a more harmonious, safe and equal society.Katharine Gelber, Professor of Politics and Public Policy, The University of QueenslandLuke McNamara, Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/824292017-08-24T00:42:25Z2017-08-24T00:42:25ZEthnic religious communities may be the ‘No’ campaign’s secret weapon in same-sex marriage fight<figure><img src="https://images.theconversation.com/files/183533/original/file-20170827-27560-xp8szu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Community leaders will play a very important role in whipping votes for or against in the same-sex marriage plebiscite.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>Chris Mitchell, formerly The Australian’s editor-in-chief, got it right recently when he pointed to <a href="http://www.theaustralian.com.au/national-affairs/ethnic-angst-on-samesex-marriage-vows/news-story/d5d6d118eb86144405208bde889c6794?login=1">social conservatism among many ethnic communities</a> as a key factor in deciding the result of the upcoming same-sex marriage survey. <a href="http://www.theaustralian.com.au/business/media/opinion/samesex-advocates-outed-when-it-comes-to-democratic-values/news-story/58daecdb924a074d089e85f9c94138c0">He noted</a>:</p>
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<p>… the truth is, many recent migrant groups from Muslim, Buddhist and Hindu backgrounds will be among the most passionate opponents of SSM. </p>
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<p>At the 2016 federal election, two if not three seats went to the government on the back of an unexpected rise in the Christian Democratic Party’s primary vote. The preferences then flowed to the Liberals. </p>
<p>These seats had large numbers of voters with a Chinese background. They were hit with a massive Weibo social media campaign by evangelical Christians of Chinese ethnicity targeting fears over same-sex marriage and the Safe Schools program – and the impact <a href="http://www.smh.com.au/nsw/hate-speech-risk-in-samesex-marriage-plebiscite-says-fred-niles-cdp-20160716-gq74vy.html">was dramatic</a>.</p>
<h2>The power of fear</h2>
<p>The “No” campaign has <a href="http://www.theaustralian.com.au/national-affairs/church-warns-of-samesex-coercion-for-schools-hospitals/news-story/3eae56b41c28c0ac16bbf4ecafe04288">already linked</a> same-sex marriage with Safe Schools. This linking of the two was perfected in the Chinese community at the 2016 federal election with real effect. </p>
<p>However, <a href="https://theconversation.com/tony-abbott-morphs-same-sex-marriage-into-a-culture-war-issue-82279">the idea</a>, promoted by the likes of Tony Abbott, that all “politically correct” issues can be confronted by voting “no” may prove to be something of an overstep.</p>
<p>The Chinese community, and many religious minorities, <a href="https://www.theguardian.com/australia-news/2016/nov/10/ush-to-weaken-racial-discrimination-act-opposed-by-ethnic-and-religious-groups">were resolute</a> in resisting Abbott’s and then Malcolm Turnbull’s <a href="http://www.abc.net.au/news/2014-08-05/government-backtracks-on-racial-discrimination-act-changes/5650030">push to amend Section 18C</a> of the Racial Discrimination Act. They did not <a href="https://theconversation.com/australians-believe-18c-protections-should-stay-73049">buy the argument</a> about freedom of speech.</p>
<h2>The numbers game</h2>
<p>Assuming the government’s <a href="http://www.news.com.au/national/politics/pyne-calls-mccormacks-samesex-marriage-sordid-comments-unacceptable/news-story/8bb9cfb88a57e901a2145a78b1cd4093">prediction</a> of a survey turnout of at least 50% is correct, the “winner” will need to secure just over 4 million votes from about 8 million people surveyed.</p>
<p>The <a href="http://www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/036">2016 Census</a> provides some insight into the numbers of minority community Australians involved in the same-sex marriage vote.</p>
<p>About 2.5 million Christians living in Australia were born overseas. 500,000 have come from eastern and southern Europe, 160,000 from North Africa and the Middle East, 155,000 from the Americas, 400,000 from southeast Asia, 150,000 from northeast Asia, 130,000 from southern and central Asia, and 200,000 from sub-Saharan Africa.</p>
<p>Not all are of voting age, nor are they all Australian citizens. But they do form serious reservoirs of more conservative cultural values. </p>
<p>Looking at Australian citizens of voting age, there are about 8.5 million Christians, about 4.7 million secularists and non-believers, about 300,000 Buddhists, about 230,000 Muslims, 160,000 Hindus, and about 60,000 Jews. If 60% of the believing communities responded “No”, then same-sex marriage could fail.</p>
<p>As the “Yes” vote groups already realise, getting the vote out will be crucial. The “No” campaigners only need to convince those undecided not to vote. So, voting “Yes” becomes an increasingly “brave” act, and one that may be experienced as a serious breach of community norms. </p>
<h2>What to expect</h2>
<p><a href="http://www.slate.com/articles/life/faithbased/2003/11/a_common_missed_conception.html">Religious blocs</a>, consisting of conservative Jewish, Muslim and Christian leaders, have previously united to confront the UN over birth control strategies, and show their resistance to abortion and similar interventions. </p>
<p>Effectively, that bloc now has the US government <a href="https://theconversation.com/trumps-global-gag-order-5-questions-answered-77838">in its corner</a>. They may well be joined by Buddhist and Hindu leaders this time around. </p>
<p>Interfaith meetings <a href="http://www.theaustralian.com.au/national-affairs/religious-leaders-reserve-the-right-to-call-homosexuality-a-sin/news-story/7cb99e1bbc4af12af58ccdd8b21627f2">have taken place</a> where religious leaders combined to confront government agencies on the same-sex marriage question, and even the very legitimacy of homosexuality. Where it occurs, the debate is fiery, as was revealed by the opposing submissions from religious leaders and gay activists <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Same_Sex_Marriage/SameSexMarriage/Submissions">from ethnic communities</a> to the Senate inquiry into same-sex marriage. </p>
<p>Community leaders will play an important role among those voters who have poorer English language skills. It’s not hard to envisage churches, temples, mosques, synagogues and similar holding working bees, where attendees can be assured they have filled in the forms correctly, and they can then be collected and posted en masse so none are lost.</p>
<p>The <a href="http://www.nytimes.com/2008/10/07/arts/television/07sara.html">example of grandchildren</a> of retired Jewish families in Florida arguing them into supporting a black Democrat presidential candidate (Barack Obama) in 2008 indicates that strategies can be implemented that minimise the stereotypical attachment of older religious people to conservative values. </p>
<p>However, it is not clear, for example, how younger Muslim or Hindu people will go arguing with their parents and grandparents to support same-sex marriage.</p>
<p>If the voluntary vote survives a High Court challenge <a href="https://theconversation.com/using-the-abs-to-conduct-a-same-sex-marriage-poll-is-legally-shaky-and-lacks-legitimacy-82245">over its legality</a>, it may well prove a much more powerful weapon for the conservatives than a compulsory plebiscite would ever have been.</p><img src="https://counter.theconversation.com/content/82429/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Jakubowicz does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Social conservatism among many ethnic communities will be a key factor in deciding the result of the upcoming same-sex marriage survey.Andrew Jakubowicz, Professor of Sociology, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/754802017-03-30T19:12:58Z2017-03-30T19:12:58ZGrattan on Friday: Turnbull’s taxing battle as fractious session grinds towards end<p>Probably it was appropriate they did it. And it was best they did it together. But seeing Malcolm Turnbull and Bill Shorten dash off early on Thursday to cyclone-ravaged north Queensland, then fly back for a slightly delayed Question Time, did invite a little cynicism about gesture politics.</p>
<p>Especially when the two leaders, in their brief respite from tearing shreds off each other, posed together with large brooms, just long enough for the cameras but too briefly to make any difference to the sweeping.</p>
<p>On the other hand, maybe there is some positive parable about the strength of our democratic system, a touch of reassuring tonic in face of the negativity and hostility that characterises this parliament.</p>
<p>The government started the session’s final week with another poll showing it would lose an election held now, and another snafu.</p>
<p>The latest embarrassment was the failed attempt to ratify an extradition treaty with China. The bungling over the treaty, which has been hanging around signed but not ratified since 2007, annoyed China and brought criticism within Coalition ranks of Foreign Minister Julie Bishop, who is usually well dressed in teflon.</p>
<p>Hard on the heels of the visit by Chinese Premier Li Keqiang, the government had expected to smooth through the ratification. But a backbench revolt materialised, former prime minister Tony Abbott weighed in, and Labor flagged opposition.</p>
<p>Turnbull quickly cut his losses to minimise diplomatic and political damage. It was the only sensible course. The government stressed it had not dropped its support for ratification, just put it off, but don’t hold your breath.</p>
<p>The motives of those government MPs against ratification were mixed. There were understandable concerns about such an agreement, given how China’s institutions operate. But there was also an element of stirring, especially in the Abbott intervention, which follows his many other forays. One government source went so far as to claim that “the single biggest challenge the government has got is Tony Abbott”, adding grimly: “he is very good at what he does”.</p>
<p>The treaty row won’t have any significant impact on the domestic fray, unlike three other issues dominating this week: penalty rates, Section 18C of the Racial Discrimination Act, and company tax cuts.</p>
<p>Labor succeeded in getting through the Senate its private member’s bill on overturning the Fair Work Commission’s cut to Sunday penalty rates; it was supported by One Nation (after Pauline Hanson did a backflip), the Nick Xenophon Team (NXT), Derryn Hinch, and Jacqui Lambie, as well as the Greens.</p>
<p>The bill will die, but the issue is burning the Coalition and a gift for Labor.</p>
<p>Labor received another break with the government’s submission to the Fair Work Commission on the minimum wage. It urges the commission “take a cautious approach, taking into account the uncertain economic outlook and the need to boost employment and job creation, particularly for young people and the low-skilled”.</p>
<p>It didn’t help when the normally sure-footed employment minister, Michaelia Cash, botched a radio interview, unable to answer a question about a line in the submission.</p>
<p>The fate of the government’s push on 18C was a mixed bag, without surprises. The rewording, the focus for the Liberal conservatives, was voted down by the Senate, but the government will emerge with changes to the complaint-handling process. The conservatives will continue their pressure to keep 18C on the agenda, giving Labor ammunition in Liberal marginal seats with large ethnic votes.</p>
<p>For the government the week’s most critical issue is the A$48 billion ten-year company tax cuts package, which was still in play when the Senate adjourned just after midnight Thursday.</p>
<p>It’s been clear the government has no hope of legislating the whole package, but could apparently secure cuts for businesses with turnovers up to $10 million. Ahead of the Senate vote, Treasurer Scott Morrison on Thursday declared that passing the $10 million turnover version would be “a significant achievement for this government”.</p>
<p>But economist Saul Eslake, <a href="https://theconversation.com/why-small-business-tax-cuts-arent-likely-to-boost-jobs-and-growth-72658">writing for The Conversation</a>, has pointed out “there is no evidence at all to support the notion that preferentially taxing small businesses will do anything to boost ‘jobs and growth’”. It is cutting tax for the large businesses that has the main impact on growth and jobs.</p>
<p>This week a notable new feature entered the battle – competition between the two small crossbench blocs, the NXT and One Nation, for ownership of the outcome.</p>
<p>The NXT has long supported the $10 million threshold. Then at the start of the week Xenophon flagged he’d consider going beyond that if the government agreed to an energy intensity scheme – something it firmly ruled out last year. Meanwhile Hanson on Monday announced she supported cuts for companies with up to $50 million turnover.</p>
<p>Seizing the opportunity, Finance Minister Mathias Cormann in particular has thrown massive effort into trying to get the NXT up to $50 million, which would be a major win and morale booster for the government. Negotiations were complicated by Xenophon returning to Adelaide on Wednesday after a death in his family.</p>
<p>When he touched down again in Canberra on Thursday evening, a stressed Xenophon was under enormous pressure. Talks went on late into the night. If the NXT moved to $50 million, it would be following One Nation – not a good look without a big trade-off.</p>
<p>When the Senate adjourned, debate on the tax package hadn’t even started. As the sitting stretches into Friday, not even Xenophon knows where it will end.</p>
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<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The fate of the government’s push on Section 18C was a mixed bag, without surprises. The week’s most critical issue is the company tax cuts package, which is still in play.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/751282017-03-24T01:01:12Z2017-03-24T01:01:12ZVIDEO: Michelle Grattan on the backlash to the 18C changes<figure>
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<p>Changes to Section 18C of the Racial Discrimination Act unveiled this week look set for defeat in the Senate. But the issue will continue to breathe life. Michelle Grattan tells University of Canberra vice-chancellor Deep Saini it’s going to be a very difficult issue for Malcolm Turnbull and is a “triumph of ideology over pragmatism”.</p>
<p>“Whether or not the changed wording gets through, this will be an issue for the government right up to the election – and not a good one in marginal seats where there are large ethnic communities. There will be under-the-radar campaigns and I think that quite a few votes could be leached away,” Grattan says.</p>
<p>“What the government could have done was just reform the processes of the Human Rights Commission.”</p><img src="https://counter.theconversation.com/content/75128/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Changes to Section 18C of the Racial Discrimination Act unveiled this week look set for defeat in the Senate. But the issue will continue to breathe life.Michelle Grattan, Professorial Fellow, University of CanberraPaddy Nixon, Vice-Chancellor and President, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/746192017-03-21T23:38:55Z2017-03-21T23:38:55ZProposed changes may confuse rather than clarify the meaning of Section 18C<figure><img src="https://images.theconversation.com/files/161737/original/image-20170321-9136-10hesgl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Turnbull government's objectives in seeking to change Section 18C are unclear.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Turnbull government <a href="https://theconversation.com/section-18c-change-appears-doomed-in-senate-74922">has announced</a> proposed changes to <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C</a> of the Racial Discrimination Act: the law that makes it unlawful to engage in acts that are reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity. </p>
<p>Under the proposals, the word “harass” will replace the words “offend, insult, humiliate”. A provision will also be included saying the test to be applied in deciding whether 18C has been breached is the objective standard of “the reasonable member of the Australian community”.</p>
<p>There are also proposed changes to the processes the Australian Human Rights Commission follows when someone lodges a complaint under 18C. For example, the commission will have to contact the people a complaint affects.</p>
<p>The changes to the commission’s processes are relatively uncontroversial; the commission supports many of them. They should also avoid a repeat of cases such as that involving <a href="http://www.abc.net.au/news/2016-11-04/18c-racial-vilification-case-facebook-qut-thrown-out/7996580">three Queensland University of Technology students</a>, who were not contacted until 14 months after the complaint was made.</p>
<p>However, the government’s objectives in seeking to change 18C are unclear. This may have the effect of confusing rather than clarifying what the law means.</p>
<h2>Why does the government want to change the wording?</h2>
<p>Much of the controversy surrounding 18C has focused on the words “offend” and “insult”. This is unsurprising: many people recognise these words are capable of applying to slights that should not be the concern of hate-speech laws. </p>
<p>Many also think that, in a democracy, there shouldn’t be a right not to be offended or insulted. The hate-speech laws of <a href="https://theconversation.com/we-should-follow-other-countries-lead-on-hate-speech-by-changing-18c-70135">most other democracies</a> don’t cover offensive and insulting acts.</p>
<p>The Federal Court has recognised the difficulties with 18C by <a href="http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1007.html">interpreting</a> it that so it applies only to:</p>
<blockquote>
<p>… profound and serious effects, not to be likened to mere slights. </p>
</blockquote>
<p>18C’s legal meaning is therefore different from its ordinary meaning. </p>
<p>However, this is not always well understood, either by critics of 18C and possibly by some people who have brought complaints under the provision. Many <a href="https://theconversation.com/we-should-follow-other-countries-lead-on-hate-speech-by-changing-18c-70135">have argued</a> there is a case for amending 18C to bring the law’s ordinary meaning into line with the Federal Court’s interpretation.</p>
<p>Against this, there have been concerns that any changes to 18C could send a <a href="http://www.abc.net.au/news/2017-03-21/ethnic-communities-react-to-proposed-18c-changes/8374494">problematic message</a> to minority groups and give a <a href="http://www.smh.com.au/national/scrapping-bolt-laws-would-be-a-green-light-to-racists-neil-brown-20140220-332wf.html">green light</a> to people who want to engage in racist behaviour. There have also been concerns about unintended effects upon a settled body of Federal Court decisions. </p>
<p>Clearly, any change to 18C would have to be carefully managed to clarify its meaning while avoiding these negative outcomes.</p>
<p>In this light, the government has not adequately explained what it is hoping to achieve by changing the wording of 18C. For example, why remove the word “humiliate” when controversy has focused on the words “offend” and “insult”? Why has the word “harass” been chosen instead of other options, like “vilify” or “degrade”? </p>
<p>It is also unclear if the government is seeking to bring 18C in line with the Federal Court’s interpretation, or if the government’s view is that the Federal Court’s current approach makes it too easy for race-hate complaints to succeed under 18C.</p>
<p>Unless the government adequately explains what it is seeking to achieve by changing 18C’s wording, it is unlikely to win broad support for its proposals, which look likely to be <a href="https://theconversation.com/section-18c-change-appears-doomed-in-senate-74922">blocked by the Senate</a>. It is also unlikely to achieve its stated aims of making the law clearer and more effective.</p>
<h2>Who is the reasonable person?</h2>
<p>Under the Federal Court’s interpretation of 18C, an “objective”, rather than “subjective” test is applied in deciding whether it has been breached. </p>
<p>The question is not whether the person making the complaint was subjectively “insulted, offended, humiliated or intimidated”, but whether the act was <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1103">reasonably likely</a> to have “profound and serious effects”.</p>
<p>In this regard, the Federal Court will often apply a “<a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1103">reasonable person</a>” test. This involves considering the conduct’s likely effect on a reasonable member of the racial or ethnic group that is the target of the alleged conduct.</p>
<p>The government’s proposal that the standard should be “the reasonable member of the Australian community” therefore clarifies that the test under 18C is objective as opposed to subjective. However, a crucial difference is that the reasonable person is no longer a member of the racial or ethnic group that has been targeted, but is instead a member of the broader Australian community.</p>
<p>The government has not adequately explained what it is seeking to achieve through this change. One possible concern is that “reasonable” Australians who are ignorant of what is likely to harass or intimidate minority groups should not inadvertently breach 18C. However, a clear danger of the new test is that a law meant to protect minorities will not adequately reflect their perspectives.</p>
<p>One way this problem could be avoided would be for the Human Rights Commission and the Federal Court to regard the “reasonable member of the Australian community” as sensitive to minority concerns. However, in the short term, the change is more likely to confuse rather than clarify 18C’s meaning.</p><img src="https://counter.theconversation.com/content/74619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Murray Wesson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government has not adequately explained what it is hoping to achieve by changing the wording of Section 18C.Murray Wesson, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/749542017-03-21T12:31:44Z2017-03-21T12:31:44ZConservatives have captured Turnbull for culture war crusade<p>Malcolm Turnbull is now, it seems, wholly owned by the conservatives in the Liberal Party and their strident media allies. His capitulation to them over 18C of the Racial Discrimination Act has been as revealing as it has been dramatic.</p>
<p>It has highlighted that Turnbull is, when it comes down to it, a transactional politician, one who these days will do whatever it takes in pursuit of his ends – in this case, keeping troublesome troops on side.</p>
<p>As opposition leader in 2009, Turnbull paid the ultimate price within his own party for sticking to his guns on carbon policy. Now policy is subservient to the perceived politics of the moment.</p>
<p>But this transaction to get the conservatives off his back is likely to carry a very high cost for him in sections of the electorate.</p>
<p>Turnbull said multiple times that he had no plans to revisit 18C. But then satisfying the right became a greater imperative than keeping a promise. Its breaking is being explained as a response to colleagues coming to him seeking change.</p>
<p>At Tuesday’s news conference Turnbull sounded like a lawyer arguing a brief. To open by claiming this would “strengthen the protection of Australians from racial vilification” was an affront to common sense - though delivered with all the professional passion of the skilled barrister.</p>
<p>In 2014, when he was communications minister in Tony Abbott’s cabinet, Turnbull complained about the proposals for changing 18C being landed on ministers without proper process or consultation.</p>
<p>He <a href="https://malcolmturnbull.com.au/media/what-do-you-think-about-changes-to-the-racial-discrimination-act-exposure-d">wrote a blog</a> inviting feedback on the government’s exposure draft, which proposed replacing 18C with a prohibition on vilification and intimidation. The blog was carefully worded, appearing to invite disagreement as much as agreement.</p>
<p>He referenced a policy document and an Abbott speech. He did not declare, as he now insists, that the current law had “lost its credibility”. He did note that “many residents of my electorate of Wentworth have first hand experience of the consequences of racial hatred, of how easily what appears to be ‘crazy theories’ and ‘ranting and raving’ too weird to take seriously can lead to genocide”.</p>
<p>The conservatives, who are driven more by their own principles than Turnbull is by his, have successfully used constant pressure to wear the Prime Minister down.</p>
<p>They have been much assisted in their revival of the issue by the publicity around the high-profile case of the Queensland students, the complaint against a cartoon by the late Bill Leak, and the campaigning of the Murdoch media. In the end, the complaints involved were quashed or withdrawn but they deeply affected the debate – which in recent days has been given a highly personal and emotional edge by Leak’s sudden death.</p>
<p>The Human Rights Commission itself has inadvertently provided abundant ammunition to the conservatives. Its handling of the QUT and Leak cases was poor; the appearances of commission president Gillian Triggs before Senate committees have been inept. There is agreement across the political spectrum that the commission’s processes need substantial overhaul.</p>
<p>On 18C itself, Turnbull now finds himself caught in a three-way squeeze - between the right wing zealots, the Senate, and the ethnic communities, which are strongly objecting to the change.</p>
<p>The Nick Xenophon Team’s Senate votes are required to rework 18C – and it has announced it will oppose the change, while backing process reform. It is likely to stick to this position.</p>
<p>Turnbull’s deep desire has been just to get past this issue. As Deputy Prime Minister Barnaby Joyce warns, if it runs on it becomes a distraction. But for Turnbull there will be no way to put it behind him.</p>
<p>Even if the Senate defeats the wording change, the conservatives will be determined that the fight is not given up. They did not let 18C rest after Abbott decided it was prudent to walk away from the battle. The right will push for Turnbull to remain committed, up to - and into - the next election.</p>
<p>On the other side, Labor and others will also ensure 18C remains an issue. The ethnic and Jewish lobbies will stay exercised and engaged. Turnbull on Tuesday contacted leaders of the Jewish, Indigenous and Muslim communities, seeking to reassure them. It will take a lot more than a few calls from the Prime Minister to counter the on-the-ground campaigns that will be unleashed.</p>
<p>In marginal Liberal seats with large numbers of ethnic voters this has the potential to leach support that an embattled Coalition government with a one-seat majority can’t afford to lose. One such seat is Reid in Sydney, occupied by assistant minister Craig Laundy – it is no wonder that Laundy has been one of the strongest voices for leaving the present wording.</p>
<p>Early this week conservative commentator Andrew Bolt, whose 2011 loss in an 18C case triggered the Coalition’s original push for change, wrote that Turnbull was “slowly working up a list of reasons why we [conservatives] should soon consider backing him”. Bolt, <a href="http://www.heraldsun.com.au/news/opinion/andrew-bolt/andrew-bolt-finally-prime-minister-malcolm-turnbull-gives-a-reason-to-fight/news-story/86b3e2204ffbf8fde7b8d53fd2e3bf32">writing ahead of the announcement</a>, said it was crucial that Turnbull’s mooted reforms to 18C were real, “even though big changes will almost certainly be blocked in the Senate”.</p>
<p>“Turnbull doesn’t have to win, but he does have to fight – and give conservatives reasons to fight for him, too,” Bolt said.</p>
<p>The Prime Minister has allowed himself to be enlisted in a culture war crusade in which the risks for him are immense. </p>
<iframe src="https://www.podbean.com/media/player/kwxda-68af74?from=yiiadmin" data-link="https://www.podbean.com/media/player/kwxda-68af74?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/74954/count.gif" alt="The Conversation" width="1" height="1" />
Malcolm Turnbull is now, it seems, wholly owned by the conservatives in the Liberal Party and their strident media allies. His capitulation to them over 18C of the Racial Discrimination Act has been as…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/748382017-03-21T00:14:01Z2017-03-21T00:14:01ZThe government’s multicultural statement is bereft of new ideas or policies – why?<figure><img src="https://images.theconversation.com/files/161501/original/image-20170320-8859-1hjgs2z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Malcolm Turnbull often claims Australia is the world's most successful multicultural nation.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The slogan for the federal government’s newly released multicultural statement – <a href="https://www.dss.gov.au/settlement-and-multicultural-affairs/australian-governments-multicultural-statement">United, Strong, Successful</a> – sounds somewhat like a soundbite from Donald Trump’s presidential campaign. </p>
<p>It starts with an untruth – that Australia is the world’s most successful multicultural nation. Canada <a href="http://www.huffingtonpost.ca/samer-majzoub/multiculturalism-in-canada_b_9388576.html">would win that race</a> on any rational criteria. But the new policy stays fairly much in the place where government rhetoric has been located for the past generation – social control and integration.</p>
<p><a href="https://theconversation.com/why-multicultural-policy-looms-as-a-senate-bargaining-chip-62696">Conservative multicultural policies</a> in Australia tend to stress social integration into the pre-existing social order, aspirational core values, and <a href="https://theconversation.com/new-multicultural-council-signals-a-broader-shift-to-the-right-35815">signing on to “Team Australia”</a>. More progressive policies tend to stress social, economic and political participation, social justice, and access to education. </p>
<h2>What’s in it and where did it come from?</h2>
<p>Labor’s <a href="https://www.dss.gov.au/our-responsibilities/settlement-and-multicultural-affairs/publications/the-people-of-australia-australias-multicultural-policy">last multicultural policy</a> in government in 2011 began with similar statements about multiculturalism meaning a fair go. It noted the importance of reciprocity and recognition. It also emphasised the rule of law and the importance of English as the national language.</p>
<p>The policy created an anti-racism partnership. Its key message was social inclusion. </p>
<p>Since then, a parliamentary committee on migration <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=mig/multiculturalism/report/fullreport.pdf">unanimously supported</a> key innovations in its 2013 report. These included a strong national research program, the promotion of multiculturalism as a policy of rights, responsibilities and obligations in community languages, the promotion of inter-faith and intercultural dialogue, and a focus on employment-related issues. </p>
<p>The Federation of Ethnic Communities’ Councils of Australia, a peak body of many multicultural groups, has criticised the Coalition government’s new statement for not tackling the need for either a <a href="http://fecca.org.au/news-events/media-releases/?month_num=3&year_num=2017">national Multicultural Australia Act</a> – which was first <a href="https://www.dss.gov.au/our-responsibilities/settlement-and-multicultural-affairs/programs-policy/a-multicultural-australia/national-agenda-for-a-multicultural-australia">foreshadowed in 1989</a> – or a national language policy. This would mirror <a href="https://theconversation.com/how-national-multicultural-legislation-would-strengthen-australian-society-50061">some of the benefits</a> created for Canada by its own legislation from the early 1980s, and in the Australian states since 1978. </p>
<p>The statement accepts many of the traditional rhetorical elements of the multicultural narrative. “Fair go” reappears, for one. Three groups of values are presented – respect, equality and freedom. These grow from the seven values espoused by the Howard-era <a href="http://catalogue.nla.gov.au/Record/280935">Citizenship Council report</a> and the four principles <a href="https://www.dss.gov.au/our-responsibilities/settlement-and-multicultural-affairs/publications/the-people-of-australia-australias-multicultural-policy">in Labor’s policy</a>.</p>
<p>However, the statement has no interest in social justice. Multiculturalism seems to depend on maintaining the Nauru and Manus Island offshore detention options in order to have strong borders. </p>
<p>In the examples given of how multiculturalism is being implemented, the anti-racism strategy created by the previous government and continued until now is no longer mentioned. The statement offers no new policy initiatives – only a beefing up of the surveillance and integration priorities. </p>
<p>The idea that cultural difference creates productivity which ensures greater wealth and prosperity perhaps reflects <a href="http://www.smh.com.au/federal-politics/federal-election-2016/multicultural-success-at-risk-under-labor-turnbull-20160519-goz9p1.html">Prime Minister Malcolm Turnbull’s input</a>.</p>
<p>“Multiculturalism” as a philosophy is never mentioned. “Multicultural” is defined through its application to a lot of people of different cultural backgrounds living in the same society.</p>
<h2>What now?</h2>
<p>The statement claims the government will “condemn people who incite racial hatred”. But the <a href="http://www.skynews.com.au/news/top-stories/2017/03/20/government-to-examine-18c-changes.html">ongoing attempts</a> by many government MPs to reduce the protections <a href="https://theconversation.com/explainer-what-is-section-18c-and-why-do-some-politicians-want-it-changed-64660">Section 18C provides</a> against this suggest the level of racial hatred that will be condemned will need to meet a much higher test than now exists.</p>
<p>There is something for nearly everyone in the rhetoric. Even One Nation <a href="http://www.abc.net.au/radionational/programs/drive/one-nations-malcolm-roberts-same-sex-marriage-welfare/8370886">likes it</a>. But there’s nothing for anyone in terms of new ideas or actions.</p>
<p>The statement’s main effect will be inaction. The critical need for an Australian Multicultural Act to ensure a strong espousal of values and strong and funded delivery to implement them has once more been rejected. </p>
<p>The sector is left without any program bite, just more rhetoric. Its limited and highly vulnerable projects can be abandoned at the government’s whim.</p>
<p>Multicultural Australia remains on the very edge of government, the most junior of the junior assistant ministries. It’s dependent for any movement on weak product champions for its cause scattered through other parts of government.</p>
<p>There’s much ado about not very much at all in this announcement. And key areas like anti-racism are always at risk of disappearing in the next round of budget savings.</p>
<hr>
<p><em><strong>Further reading</strong>: <a href="http://theconversation.com/interculturalism-how-diverse-societies-can-do-better-than-passive-tolerance-72874">Interculturalism: how diverse societies can do better than passive tolerance</a></em></p><img src="https://counter.theconversation.com/content/74838/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Jakubowicz receives funding from the Australian Research Council for a joint project on cyber-racism. </span></em></p>The government’s multicultural statement stays fairly much in the place where rhetoric around the issue has been located for the past generation – social control and integration.Andrew Jakubowicz, Professor of Sociology, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/748182017-03-19T11:02:30Z2017-03-19T11:02:30ZFree speech? It depends who you are, in Peter Dutton’s view<p>Peter Dutton has advised Alan Joyce and other business executives who have written to Malcolm Turnbull urging action on same-sex marriage to “stick to their knitting”. It’s advice some in the government would think he himself should take.</p>
<p>Dutton has launched a sustained jihad against the more than 30 business leaders who signed the letter, returning to the fray in his weekend speech to the Queensland Liberal National Party State Council and a press conference.</p>
<p>While he might argue this issue transcends portfolios, his strident intervention unhelpfully adds to Turnbull’s problem with freelancing ministers and highlights divisions within the government. In response, fellow cabinet ministers Julie Bishop and Simon Birmingham publicly defended the business leaders’ right to have their say.</p>
<p>Birmingham didn’t mince words. “I think throughout history, business leaders have often stepped ahead of legislators in supporting reforms related to gender equity or racial equity. And I see no reason as to why business leaders are not free to do likewise when it comes to issues like marriage equality.”</p>
<p>Dutton’s attack deserves close attention because he is seen, and sees himself, as the conservatives’ flag-waver in cabinet and has recently been talked up in the media as a possible future leader.</p>
<p>In their letter, the business leaders said “the time has come to resolve this important reform”, calling on Turnbull “to legislate for marriage equality so the government can get on with its core economic agenda”. </p>
<p>They outlined what they saw as a “compelling” business case for change. This included the interests of their employees, meeting the values of customers, and Australia’s global reputation as a welcoming and inclusive nation.</p>
<p>Dutton’s counter was scattergun. Speaking to 2GB’s Ray Hadley last week he ranged from denouncing the business leaders’ right to act as they did to his personal gripe with Telstra’s customer service.</p>
<p>Delivering “a shot across their bow”, he told Hadley that CEOs on big dollars should concentrate on their businesses and the improvement of the economy. Social issues should be left “up to the politicians, to the leaders, to talkback hosts like yourself, to normal people who can have those discussions without the millions of dollars being thrown behind campaigns because somehow it makes the board feel better or meets their social obligation”.</p>
<p>He had a serious dummy spit over his home phone. “My view of Telstra is that they’d be better off to concentrate their efforts on cleaning up their call centre operations because we had a problem with our phone at home last week … I lead a fairly busy life, the thought of hanging on the phone for an hour to some person in the Philippines and still getting nowhere at the end of the call drives me crazy.</p>
<p>"Now, here’s a suggestion for Telstra. Instead of getting caught up and spending you investors’ money, your shareholders’ money on all these political causes, what about tidying up your own backyard first and providing a proper standard of care and service to your customers?”</p>
<p>At the weekend it was the turn of Qantas to be singled out. “Alan Joyce, the individual, is perfectly entitled to campaign for, and spend his hard earned money on, any issue he sees fit, but don’t do it in the official capacity and with shareholders’ money. And certainly don’t use an iconic brand and the might of a multi-billion dollar business on issues best left to the judgement of individuals and elected decision-makers.”</p>
<p>And – in the wake of social media pressure forcing Coopers Brewery to <a href="http://www.abc.net.au/news/2017-03-14/coopers-brewery-not-involved-gay-marriage-video/8351894">back away from its association with</a> a Bible Society ad featuring a same-sex marriage debate between two Liberal MPs – Dutton said it was “unconscionable” that some companies were “morally coerced into supporting campaigns in fear of being extorted by an online social media push to boycott their product”.</p>
<p>Dutton casts himself as championing freedom of speech. But in today’s acrimonious culture war, those calling for more free speech are squealing increasingly loudly when others exercise their freedom in a way they don’t like.</p>
<p>This indeed was the business leaders speaking freely, and they obviously believe their stand will advance or protect their businesses’ interests.</p>
<p>One wonders if Dutton would be lashing out if they had written to Turnbull supporting a change in Section 18C of the Racial Discrimination Act in the name of freedom of speech.</p>
<p>As for his argument that the CEOs are using shareholder funds, Dutton has so far produced no backup for this, unless he is referring to their own salaries.</p>
<p>When it comes to social media, the exhortations by online campaigns for people to boycott products surely falls under “freedom of speech”. (It’s a different matter if substantive threats are made.)</p>
<p>The tone of these campaigns can be offensive – but remember that in the 18C debate, the conservatives want the removal of the reference to “offend”.</p>
<p>Dutton has a particular interest in GetUp’s ability to campaign. GetUp mobilised against him at the last election, when his margin was cut.</p>
<p>Meanwhile Turnbull continues to stick to the plebiscite policy on same-sex marriage. He has little option.</p>
<p>Dutton was blunt at the weekend: “The party’s position has been very clear and we are not going to deviate from that position.”</p>
<p>For some of the conservatives, same-sex marriage has become rather like the carbon issue was in 2009, when Turnbull was opposition leader.</p>
<p>Then, many in his party were unhappy with him, as many are at present.</p>
<p>His commitment to an emissions trading scheme lit the fuse. Bizarre as it sounds, a fuse could be lit if Turnbull walked away from the plebiscite policy to embrace a parliamentary vote, as the business leaders want. Which is presumably why he won’t do it any time soon, although how he gets to a viable policy to take to the election is anyone’s guess.</p>
<p>Most immediately, he has to deal with the issue of Section 18C. This is due to go to cabinet for discussion on Monday. A report from a parliamentary inquiry <a href="https://theconversation.com/parliamentary-inquiry-sidesteps-making-recommendation-on-18c-73792">recommended a suite of changes</a> to the processes of the Human Rights Commission but left open the question of the future of the wording “to offend, insult, humiliate or intimidate” that the conservatives want changed.</p>
<p>The politically savvy course – especially with a view to campaigning in seats with large ethnic votes – would be to fix the processes and leave the wording. But that won’t satisfy those conservatives set on a culture war mission.</p>
<p><strong>Postscript</strong></p>
<p>As parliament resumes on Monday, <a href="http://www.theaustralian.com.au/national-affairs/newspoll/newspoll-coalition-wins-back-deserters-to-regain-ground-against-labor/news-story/eee9458a078b96ca9d7b3368efec3096">Newspoll in The Australian</a> sees an improvement in the Government’s position and that of Malcolm Turnbull. </p>
<p>Labor’s two-party lead has been cut to 52-48%, compared with 55-45% three weeks ago.</p>
<p>The Coalition’s primary vote has risen from 34% to 37%, while Labor’s has fallen from 37% to 35%. The Greens are down a point to 9%.</p>
<p>Turnbull leads Bill Shorten as better prime minister by 14 points (43-29%) compared with his seven-point lead in the last poll, at the end of February. Turnbull’s net satisfaction has improved from minus 30 to minus 27, while Shorten’s has worsened from minus 26 to minus 28.</p>
<iframe src="https://www.podbean.com/media/player/kwxda-68af74?from=yiiadmin" data-link="https://www.podbean.com/media/player/kwxda-68af74?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/74818/count.gif" alt="The Conversation" width="1" height="1" />
Peter Dutton has advised Alan Joyce and other business executives who have written to Malcolm Turnbull urging action on same-sex marriage to “stick to their knitting”. It’s advice some in the government…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/737522017-02-28T23:32:55Z2017-02-28T23:32:55ZParliamentary inquiry into free speech resolves nothing, so 18C should be left alone<figure><img src="https://images.theconversation.com/files/158819/original/image-20170228-29924-1en5ztx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Federal parliament should leave section 18C untouched. </span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The inquiry into <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia">freedom of speech in Australia</a> by the Parliamentary Joint Committee on Human Rights has reported to parliament. Unsurprisingly, it has focused most of its recommendations on the procedures and processes associated with the role of the Australian Human Rights Commission in accepting and hearing complaints.</p>
<p>The impetus for the inquiry was the now-infamous “<a href="https://theconversation.com/qut-discrimination-case-exposes-human-rights-commission-failings-68235">QUT case</a>”, in which an employee of Queensland University Technology asked non-Indigenous students to leave a computer lab designated for the use of Indigenous students. Those students then allegedly posted comments on Facebook, in relation to which the QUT employee lodged a complaint of unlawful vilification against the students. In November 2016, <a href="http://www.theage.com.au/federal-politics/political-news/queensland-university-of-technology-case-thrown-out-as-18c-inquiry-looms-20161103-gshurj.html?deviceType=text">the Federal Court dismissed</a> all the complaints against the students.</p>
<p>The QUT case was the most recent impetus for the launch of this inquiry, although it followed earlier rumblings in the Australian Law Reform Commission’s <a href="https://www.alrc.gov.au/publications/freedoms-alrc129">report</a> on traditional rights and freedoms, <a href="http://www.theage.com.au/victoria/bolt-loses-highprofile-race-case-20110928-1kw8c.html">the Andrew Bolt case</a> and the <a href="http://www.smh.com.au/federal-politics/political-news/tony-abbott-dumps-controversial-changes-to-18c-racial-discrimination-laws-20140805-3d65l.html">unsuccessful 2014 attempt</a> to narrow section 18C.</p>
<h2>The words of section 18C</h2>
<p>All eyes were on what the report would recommend regarding the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">words used in section 18C</a>. This is because critics of the section are quick to point out that it says that unlawful conduct occurs when it is reasonably likely to “offend, insult, humiliate or intimidate” someone on the ground of their race. The bar is too low, they say. Merely offending someone or insulting them ought not to be grounds for a complaint of unlawful conduct under civil law.</p>
<p>Supporters of the section are equally quick to point out that the courts have interpreted section 18C to mean that the conduct captured by the law has to amount to a profound and serious harm, “<a href="http://www.austlii.edu.au/au/cases/cth/FCA/2001/1007.html">not to be likened to mere slights</a>”. Therefore, merely having one’s feelings hurt or feeling offended does not reach the threshold required to lodge a complaint. Independent MP David Leyonhelm found this out when he tried, unsuccessfully, <a href="http://www.smh.com.au/federal-politics/political-news/human-rights-commission-rejects-david-leyonhjelm-angry-white-male-discrimination-claim-20161129-gt0el9.html">to complain about</a> journalist Mark Kenny <a href="http://www.smh.com.au/federal-politics/federal-election-2016-opinion/freespeech-fundamentalists-break-free-of-good-conscience-20160808-gqnhnw.html">describing him</a> as speaking on ABC television with “angry-white-male certitude” and being a “rank apologist for the resentment industry promoted by angry-white-male shock jocks”.</p>
<h2>What changes to 18C have been proposed?</h2>
<p>Of the 22 recommendations made in the report, only one deals specifically with the words in section 18C. This recommendation is inconclusive. It notes merely that at least one member of the committee had supported each of the five mooted proposals.</p>
<p>This leaves no-one the wiser about what the federal parliament will do about the text of section 18C. It also puts the responsibility squarely in the hands of the parliament to make a decision on what has lately become a highly controversial piece of Australian federal law. The recommendation contains five options regarding the words in section 18C:</p>
<p><strong>1.</strong> No change. This option is strongly supported by the Australian Greens, who wrote a dissenting report. Labor also wrote extended additional comments, which noted the high levels of racism experienced in Australian society, the important role that 18C has played during the more than 20 years of its operation, and that the section only captures serious conduct. They agreed with witnesses to the inquiry who suggested that amending the section would send a dangerous message to the community. Overall, it seems highly likely the ALP supported this option.</p>
<p><strong>2.</strong> Codifying the courts’ interpretation of section 18C as referring to “profound and serious effects”. This change would have no material impact on how section 18C operates as a legal prohibition of unlawful conduct.</p>
<p><strong>3.</strong> Removing the words “offend”, “insult” and “humiliate” and replacing them with “harass”. This change would create uncertainty in the interpretation of section 18C, until a case was able to make its way to the courts and a definitive interpretation of the term “harass” was able to be made.</p>
<p>The Oxford English Dictionary defines “harass” as to “trouble or vex by repeated attacks”, or alternatively as to “trouble, worry or distress”. These terms could imply, but do not necessarily imply, profound and serious conduct.</p>
<p>It is possible a court would apply a similar interpretation to the term “harass” as has already been applied to the existing text. If that were the case, nothing much would change. </p>
<p><strong>4.</strong> Including a “truth” defence in section 18D. Section 18C operates in conjunction with section 18D, which allows for exemptions to conduct that would otherwise be considered to contravene section 18C. Exemptions currently exist for conduct done “reasonably and in good faith”, including artistic expression, public debate and fair and accurate reporting.</p>
<p>The inclusion of a “truth” defence in 18D would radically alter its scope. I imagine many people whose conduct might be caught by 18C would relish the opportunity to argue the “truth” of their views (for example, Holocaust deniers or those who would want to argue the inferiority of particular races). Deliberately providing a platform for such discourse through the text of 18C would make a mockery of 18C’s purpose and operation. It would significantly weaken the protection it offers to vulnerable communities, and provide a platform for hate speakers.</p>
<p><strong>5.</strong> Changing the test of whether unlawful conduct has occurred from the experience of a member of the targeted group to a “reasonable member of the Australian community”. This <a href="https://www.ag.gov.au/Consultations/Documents/Attachment%20A.pdf">suggestion was included</a> in the ill-fated attempt to reform 18C in 2014. </p>
<p>Implementing this recommendation would mean a complete reframing of the way in which racial vilification is conceptualised in federal law. Currently, 18C is the only racial vilification law in Australia in which the test of whether conduct is unlawful depends on the response of the group targeted by the vilification. This is a great strength.</p>
<p>Changing to a test of whether a “reasonable” person in the community would regard an expression as vilifying or not would discount the lived experience of targets of vilification, and thereby reduce the likelihood of a complaint being upheld. People who are not the targets of vilification are simply not able to understand its effects in the ways that those who are targeted experience it.</p>
<h2>Where to from here?</h2>
<p>On the whole, this report is unhelpful. It has failed to resolve the key issues at stake in terms of the text of section 18C. Given the inability of the committee to reach agreement on suggestions for textual reform, the parliament should leave 18C unchanged.</p><img src="https://counter.theconversation.com/content/73752/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katharine Gelber has received funding from the Australian Research Council and the Academy of Social Sciences Australia.</span></em></p>The much-anticipated report has offered little in the way of a solution to the disagreement over section 18C, so parliament should leave it as it is.Katharine Gelber, Professor of Politics and Public Policy, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/737922017-02-28T11:39:11Z2017-02-28T11:39:11ZParliamentary inquiry sidesteps making recommendation on 18C<p>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.</p>
<p>As is his luck these days, it has done no such thing. The Joint Committee on Human Rights has provided <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Report">extensive and sensible advice</a> 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.</p>
<p>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”.</p>
<p>No-one can say it’s not been comprehensive. But the list could have been written without the inquiry.</p>
<p>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.</p>
<p>Section 18D provides exemptions and defences, including that of “good faith”, “public interest” and “fair comment”.</p>
<p>The options the committee has put are:</p>
<ul>
<li><p>no change in wording of 18C and 18D;</p></li>
<li><p>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;</p></li>
<li><p>removing the words “offend”, “insult” and “humiliate” and replacing them with “harass”.</p></li>
<li><p>amending 18D to also include a “truth” defence similar to that of defamation law;</p></li>
<li><p>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</p></li>
<li><p>further investigating criminal provisions on incitement to racially motivated violence on the basis that existing state and federal laws have been ineffective.</p></li>
</ul>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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”.</p>
<p>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”.</p>
<p>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. </p>
<p>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”.</p>
<p>Turnbull originally did not want to touch 18C. Under pressure from the agitators, he became more amenable to overhaul – hence the inquiry.</p>
<p>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.</p>
<p>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.</p>
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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…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/730492017-02-16T19:12:22Z2017-02-16T19:12:22ZAustralians believe 18C protections should stay<figure><img src="https://images.theconversation.com/files/156873/original/image-20170215-19613-1gllito.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Author</span></span></figcaption></figure><p>While debate over the merits of Section 18C of the Racial Discrimination Act continues to rage, new research shows that an overwhelming majority of Australians support legislation that prevents insults on the basis of race, culture or religion. </p>
<p><a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Additional_Documents">We found</a> that just 10% of Australians believe people should have the freedom to “insult” and “offend” people on the basis of race, culture or religion. Over 75% are opposed. The poll, conducted by Essential Research for the Cyber Racism and Community Resilience (CRaCR) and <a href="https://www.westernsydney.edu.au/challengingracism/challenging_racism_project">our other Challenging Racism research projects</a>, undermines <a href="http://freedomwatch.ipa.org.au/2017/01/poll-australians-value-freedom-of-speech/">other claims</a> that nearly 50% of Australians want the key words removed from Section 18C.</p>
<p>A parliamentary <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia">inquiry into 18C</a> is moving towards its climax, with the committee due to report by February 28. It has been a mammoth task for the committee members, with thousands of submissions and dozens of witnesses.</p>
<p>Section 18C makes it unlawful to offend, insult, humiliate or intimidate someone on the basis of race and culture. It has been under attack from conservative commentators and politicians after News Ltd columnist Andrew Bolt <a href="http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918">was found to have breached</a> 18C without an acceptable defence under the related Section 18D.</p>
<p>In the 2013 election, then prime minister <a href="http://www.abc.net.au/news/2014-04-22/racial-discrimination-act-promise-check/5364682">Tony Abbott pledged</a> to get rid of the section. Attorney-General George Brandis <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2014/First%20Quarter/25March2014-RacialDiscriminationAct.aspx">attempted to do this</a> in 2014. A strong push-back by community groups forced Abbott to abandon the changes. </p>
<p>After the 2016 election, conservatives such as Cory Bernardi, in tandem with the Institute for Public Affairs, <a href="http://www.abc.net.au/news/2016-08-30/cory-bernadi-leads-coalition-push-to-change-18c-race-hate-laws/7796356">reactivated the campaign</a> to remove section 18C, though limiting their reach to excising the words “insult” and “offend”. </p>
<p>As we <a href="https://theconversation.com/what-did-galaxys-poll-tell-us-about-freedom-of-speech-and-18c-not-what-the-ipa-said-it-did-72197">reported on February 1</a>, the “truth” about what Australians think of and want to happen with 18C has been a matter of critical interest. The Australian newspaper has been a sustained campaigner for removing 18C. It <a href="http://www.theaustralian.com.au/opinion/editorials/the-racism-at-the-core-of-18c/news-story/ac7e4a21b410bef42cb3c9ad9729ce99">argues the law is too great a threat to freedom of speech</a>.</p>
<p>CRaCR commissioned Essential to include four questions in its February 8 omnibus poll. We asked whether people agreed or disagreed with the propositions that “people should be free to offend/ insult/ humiliate/ intimidate someone on the basis of their race, culture or religion”. The finding is that Australians do not support this proposition. Only 5 to 10% champion such “freedoms”.</p>
<p>Our simple question formats eschewed any prelude points concerning “competing freedoms” or double-barrel questions as in the <a href="https://www.ipa.org.au/portal/uploads/IPA_Media_Release_Free_Speech_Not_A_Fringe_Issue_Poll_170131.pdf">Galaxy poll</a>.</p>
<p>After <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=COMMITTEES;id=committees%2Fcommjnt%2Fa4a748b7-be67-4d2d-a0f0-5fe751327781%2F0008;query=Id%3A%22committees%2Fcommjnt%2Fa4a748b7-be67-4d2d-a0f0-5fe751327781%2F0000%22">we gave evidence to the parliamentary inquiry</a>, and were questioned on the apparently conflicting findings, we set out to generate transparent and valid data. We developed a simple test to discover the extent to which Australians believe that people should be free to offend, insult, humiliate or intimidate others on the basis of race, culture or religion. This would be the consequence of removing Section 18.</p>
<p><a href="https://theconversation.com/what-do-australian-internet-users-think-about-racial-vilification-24280">Our research in 2014</a> asked if people thought it should be unlawful to do what 18C covered. On the insult and offend questions, support for the law was 72% and 66%, while on humiliate and intimidate it rose to 74% and 79%. The <a href="http://freedomwatch.ipa.org.au/2017/01/poll-australians-value-freedom-of-speech/">IPA claimed since</a> then there had been a major shift towards accepting the removal of these first two conditions of vilification. </p>
<p>Our new research demonstrates this is not the case. Our Essential sample was representative (by age, gender, region and so on). Our four questions were aimed to test whether people supported removing insult and offend from 18C. We found that Australians have increased their support for protections from insulting and offensive attacks on the basis of race, culture and religion. </p>
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<p>Only 5 to 10% of Australians support the right to offend on the basis of race, culture or religion. Those who are younger, and males, are more likely to support these freedoms. </p>
<p>In our <a href="https://www.westernsydney.edu.au/challengingracism/challenging_racism_project">other surveys over the past decade</a>, we have found that about the same proportion of Australians (one in ten) hold negative views about diversity and “races”. For example, around 10-12% believe that some races are superior to others, and that groups should not intermarry. These are indicators of racial supremacism and racial separatism. </p>
<p>There may well be those who support these freedoms from a Voltaire-inspired conviction about the right to offend, insult, humiliate or intimidate. However, analysis of the 2014 CRaCR survey data has found statistical associations between authors of online racism, racist dispositions and a preference for the freedom to offend. Authors of racism, with racist views, most want the right to be racist.</p>
<p>The political implications are also of interest. Focusing just on “offend” and “insult”, the spread confirms that the left of the political spectrum is more opposed to licensing hate than the right. </p>
<p>Support for the freedom to offend ranges from 7% (ALP and Greens) to 11% (LNP) and up to 16% with Others and Independents. Opposition to the freedom to offend peaks with the Greens (86%), but still sits at 70% for Independents.</p>
<p>Support for the freedom to insult ranges from 5% (ALP) and 8% (Greens) to 12% (LNP) and up to 13% with Others and Independents. Opposition to the freedom to insult peaks with the Greens (88%), but still sits at 72% for Independents.</p>
<p>This evidence suggests that over the past three years, despite incessant campaigning by pro-vilification proponents, Australians’ appetite for the “<a href="https://theconversation.com/race-act-changes-are-what-you-get-when-you-champion-bigotry-24782">right to be bigots</a>” has declined.</p>
<p>The impression we gain is that civility remains a high value. Whatever peoples’ valuing of freedom of speech, which is very high, they do not think that such a freedom should encompass the insulting and offending of people on the basis of race, culture or religion.</p>
<p>Moreover, this trend reverberates with the finding of <a href="http://www.essentialvision.com.au/abuse-and-violence">another Essential poll in late 2016</a>, where Australians worry that insulting people on the basis of race and religion is rising. </p>
<p>Now it’s over to the committee, parliament and the people.</p><img src="https://counter.theconversation.com/content/73049/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Jakubowicz has been funded by the Australian Human Rights Commission for a Linkage ARC project on cyber-racism. He was part of the research team that gave evidence to the Parliamentary Inquiry into 18C (freedom of speech). </span></em></p><p class="fine-print"><em><span>Kevin Dunn receives research funding for related survey work from the Australian Research Council and SBS.</span></em></p><p class="fine-print"><em><span>Rachel Sharples does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>How do we know what we think we know? Accuracy, care and rigorous method gets us somewhere there, especially on issues like racism.Andrew Jakubowicz, Professor of Sociology, University of Technology SydneyKevin Dunn, Dean of the School of Social Science and Psychology, Western Sydney UniversityRachel Sharples, Research Assistant, Challenging Racism Project, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/721972017-01-31T22:39:55Z2017-01-31T22:39:55ZWhat did Galaxy’s poll tell us about freedom of speech and 18C? Not what the IPA said it did<figure><img src="https://images.theconversation.com/files/154921/original/image-20170131-13257-1ue838c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Liberal MP Ian Goodenough is chairing a parliamentary inquiry into freedom of speech in Australia.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>In evidence to the parliamentary inquiry into freedom of speech on Tuesday, the Institute for Public Affairs (IPA) think-tank tendered a statement based on a survey it had commissioned from Galaxy Research. The Australian newspaper covered this polling <a href="http://www.theaustralian.com.au/national-affairs/pc-culture-muzzling-free-speech-says-poll/news-story">as a front-page “exclusive”</a>.</p>
<p>The second paragraph in the <a href="https://www.ipa.org.au/portal/uploads/IPA_Media_Release_Free_Speech_Not_A_Fringe_Issue_Poll_170131.pdf">IPA’s media release</a> claimed – without evidence – that there was set to be much surprise among the media and the political class that 95% of Australians think “free speech matters”.</p>
<p>The release then reported that 48% of people supported removing the words “insult” and “offend” from <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C of the Racial Discrimination Act</a>.</p>
<p>The IPA actually wants the <a href="http://freespeech.ipa.org.au/">whole of 18C removed</a>. But the way forward since then-prime minister Tony Abbott <a href="https://theconversation.com/grattan-on-friday-how-abbott-united-the-greens-and-the-institute-of-public-affairs-30290">baulked at the gate</a> on the <a href="https://theconversation.com/race-act-changes-are-what-you-get-when-you-champion-bigotry-24782">changes proposed by his attorney-general, George Brandis</a>, in 2014 has been this apparently minor surgery to the less serious end of the unlawful quartet (the others being “humiliate” and “intimidate”).</p>
<p>But is the IPA’s statement a fair reading of the Galaxy polling? And was the research fair to start with?</p>
<h2>Questions of methodology and polling</h2>
<p>According to a Galaxy spokesperson whom I spoke with on Tuesday, no attempt was made to ensure the sample included a representative component of Indigenous and non-Anglo or overseas-born Australians. </p>
<p>Such data was not collected as part of the study as the client (the IPA) had not asked for it, so the results could not be profiled on these criteria. Yet these are the people 18C is <a href="https://theconversation.com/repealing-18c-would-leave-jews-exposed-as-muslims-already-are-36131">mostly designed to protect</a>.</p>
<p>Chances are that an average online panel (the Galaxy polling was done mainly online) won’t include many Indigenous people, people with poor English, or people from minority refugee communities – that is, the primary targets of race hate speech. We had to work hard to ensure <a href="https://theconversation.com/what-do-australian-internet-users-think-about-racial-vilification-24280">our online survey</a> on a similar issue included enough minority-group Australians to ensure statistical accuracy.</p>
<p>The IPA research was two questions in the regular Galaxy omnibus survey, which seeks to control only for age, gender and region. It also looks at shopping patterns.</p>
<p>The first question was:</p>
<blockquote>
<p>How important is freedom of speech to you?</p>
</blockquote>
<p>This was designed to position the respondent positively to the question and its point of view.</p>
<p>The second question was:</p>
<blockquote>
<p>Do you approve or disapprove of the proposal to change the Racial Discrimination Act so that it is no longer unlawful to “offend” or “insult” someone because of their race or ethnicity? It will still be unlawful to “humilitate” or “intimidate” someone because of their race or ethnicity.</p>
</blockquote>
<p>This aims to deliver the coup de grâce that reinforces the desired outcome. </p>
<p>So, more than 95% of those polled thought freedom of speech was important. This is a no-brainer. Had the question been – as other surveys <a href="https://theconversation.com/what-do-australian-internet-users-think-about-racial-vilification-24280">have put it</a> – “Is freedom of speech more important than freedom from hate?”, the percentage of those in favour may well have come down significantly. Or if that question were to be reversed, even more so. But we will never know.</p>
<p>Then the question of removing “insult” and “offend” was put. Less than half of any group supported this. Given the preparatory question and the lack of information about the implications or impact, this is less than one might have predicted.</p>
<p>However, neither Galaxy nor the IPA discussed the most interesting data.</p>
<h2>Youth responses show IPA conclusions invalid</h2>
<p>In the Galaxy poll, the 18-24 age group had the highest commitment to freedom of speech but the lowest support for removing “insult” and “offend” from 18C – by a long way. </p>
<p>So, a suggestion that a commitment to freedom of speech necessarily carries with it support for amending 18C is simply false. There is no simple correlation. They appear to be independent variables, though mediated by some other factor – probably social media use. </p>
<p>There is a much better explanation which neither Galaxy nor the IPA evoked.</p>
<p>The 18-24 age bracket comprises the true digital natives; a very high proportion are regular users of social media. <a href="https://theconversation.com/what-do-australian-internet-users-think-about-racial-vilification-24280">Our research</a> shows they have the highest rate of encounters with racist hate speech. They are usually witnesses, though sometimes are targets. Most encounters with online hate happen on Facebook (40%), YouTube (20%) and in comment threads on news media site (15%). </p>
<p>Digital natives value freedom. But they also want vulnerable people protected and civility enhanced. And they don’t trust sites like Facebook, YouTube or Google to do that – nor, it must be said, government. </p>
<p>In our research, young people were among the least likely to want offending someone on the basis of race to be lawful, just like those surveyed by Galaxy for the IPA. However, they were more likely to hold a neutral position than older people; they were more reluctant to force regulation, but more aware of what racism <a href="https://theconversation.com/does-racism-make-us-sick-63641">did to its targets</a>.</p>
<p>The people most in support of retaining 18C in our study but not in Galaxy’s were the older group, who are far less likely to use social media and thus encounter cyber-racism. In our study, the people most likely to want the right to offend people were those who identified themselves as authors of racist material. </p>
<p>So, it follows that the less racism you encounter that you don’t want to see, the less likely it is that you’ll worry about it. The more you want to freely offend people, the more likely it is you author racist material. </p>
<p>Lucky I read the report – or you’d never have known quite what the IPA was selectively trying to slip through to the inquiry and the press. Be sure, though, that the claim most Australians want 18C gutted in the name of freedom of speech simply is not supported by evidence.</p><img src="https://counter.theconversation.com/content/72197/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Jakubowicz has partnered with the Australian Human Rights Commission on research into cyber racism. The AHRC is the target of the IPA attack on Section 18C. His joint ARC research project has received funds from the AHRC. The submission by the Cyber racism and Community resilience Research Group is at <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Submissions">http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Submissions</a> sub. 54, with the IPA at 58. </span></em></p>Neither Galaxy Research nor the Institute of Public Affairs think-tank discussed the most interesting data they garnered from polling on free speech and reform to Section 18C.Andrew Jakubowicz, Professor of Sociology, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/701352016-12-12T23:09:14Z2016-12-12T23:09:14ZWe should follow other countries’ lead on hate speech by changing 18C<figure><img src="https://images.theconversation.com/files/149579/original/image-20161212-31379-nvux88.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Section 18C goes further than the laws of many other democracies by applying to 'offensive' and 'insulting' speech.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Parliamentary Joint Committee on Human Rights has held the first public hearing of <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia">its inquiry</a> into <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C</a> of the Racial Discrimination Act: the law that makes it unlawful to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity.</p>
<p>Although there has been a great deal of <a href="https://theconversation.com/au/topics/section-18c-7896">debate about 18C</a>, surprisingly little has been said about how other democratic countries deal with hate speech. Looking at the laws of other democracies can help us better understand our own – what is unusual, what works well, and what may need to be changed.</p>
<p>Most democracies recognise that hate speech laws are important to protect the dignity of minority groups and maintain a successful multicultural society. But 18C also goes further by applying to “offensive” and “insulting” speech.</p>
<p>Changing these words to “vilify”, as Human Rights Commission head Gillian Triggs <a href="https://www.theguardian.com/australia-news/2016/nov/08/gillian-triggs-says-replacing-insult-and-offend-could-strengthen-18c">has suggested</a>, would make 18C clearer and bring it more in line with the laws of other democracies. It would also be a minor change that would allow 18C to continue its important work in curbing hateful acts.</p>
<h2>Lessons from abroad</h2>
<p>Among other democracies, the US is unusual in allowing for very limited restrictions on hate speech. The <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment</a> to the US Constitution says:</p>
<blockquote>
<p>Congress shall make no law … abridging the freedom of speech. </p>
</blockquote>
<p>The US Supreme Court <a href="https://supreme.justia.com/cases/federal/us/315/568/case.html">has held</a> that the law may prohibit “fighting words” – or words that are likely to incite “imminent lawless action” – but can’t go further than that. This standard is far less restrictive of free expression than 18C.</p>
<p>The Supreme Court <a href="https://supreme.justia.com/cases/federal/us/505/377/case.html">has also held</a> that even where the law prohibits “fighting words”, it cannot discriminate between different viewpoints by protecting particular groups against “imminent lawless action”. </p>
<p>So, the law cannot – for example – prohibit racist fighting words without also prohibiting non-racist fighting words; either all fighting words should be prohibited or none at all. The state must remain neutral between competing ideas, even if some of these ideas are racist.</p>
<p>Applying this approach, the US Supreme Court <a href="https://supreme.justia.com/cases/federal/us/395/444/">overturned the conviction</a> of a Klu Klux Klan member who had called for the return of African-Americans to Africa and Jews to Israel, and the <a href="https://supreme.justia.com/cases/federal/us/505/377/case.html">conviction</a> of a group of teenagers who had placed a burning cross in the yard of an African-American family.</p>
<p>However, very few democracies have followed the lead of the US on this issue. Most democracies recognise that the state can take sides in the contest of ideas and promote the values of respect and tolerance through hate speech laws.</p>
<p>In Canada, for example, the <a href="http://laws-lois.justice.gc.ca/eng/acts/C-46/page-72.html#h-93">law</a> prohibits public statements that wilfully promote hatred towards identifiable groups – a standard that is also less restrictive of free expression than 18C. </p>
<p>Canada’s Supreme Court upheld this law in a <a href="http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/695/index.do">case</a> where a school teacher had promoted hatred of Jews in his lessons. The court said the law’s purpose was to:</p>
<blockquote>
<p>… bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.</p>
</blockquote>
<p>Likewise, in the UK the <a href="http://www.legislation.gov.uk/ukpga/1986/64/part/III">law</a> prohibits “threatening, abusive, or insulting” words or behaviour. The reference to “insulting” words might sound like 18C, but the law also says the person must intend to “stir up racial hatred”, or it must be likely that “racial hatred” will be “stirred up”. These words make the law less restrictive of free expression than 18C.</p>
<p>Germany goes further than many democracies in limiting free expression by, for example, prohibiting the display of Nazi flags and badges. But even the German <a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1241">hate speech law</a> does not apply to expression that is merely offensive. Instead, it refers to attacks on the:</p>
<blockquote>
<p>… human dignity of others by insulting, maliciously degrading or defaming parts of the population …</p>
</blockquote>
<h2>Is 18C too broad?</h2>
<p>From this snapshot, it is clear 18C is an unusual provision. Most hate speech laws do not apply to “offensive” or even “insulting” expression.</p>
<p>But 18C is also unusual in dealing with hate speech through the civil law rather than the criminal law. This means someone who breaches the law may have to apologise or pay damages, but doesn’t commit a crime. </p>
<p>In contrast, the laws in comparable countries outlined above are criminal laws. There are also exceptions to 18C, in <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">Section 18D</a>.</p>
<p>The reason why hate speech laws don’t normally apply to “offensive” or even “insulting” speech is because democracies recognise that offence and insult are sometimes part of political debate. In a democracy, ideas should be open to challenge, even deeply-held ideas on sensitive issues. We should be concerned about laws that inhibit frank discussion, whether they are civil or criminal in nature.</p>
<p>Australia’s Federal Court has recognised this by <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1103">interpreting</a> 18C so that it applies only to:</p>
<blockquote>
<p>… profound and serious effects, not be likened to mere slights. </p>
</blockquote>
<p>This seems to strike to a good balance between free expression and the protection of minorities.</p>
<p>Some might say the Federal Court’s interpretation of 18C means that no change is necessary. But the law should be clear, especially when it is as controversial as 18C.</p>
<p>A minor change, substituting “vilify” for “offend” and “insult”, would bring 18C more in line with the laws in other democracies without undermining its effectiveness.</p><img src="https://counter.theconversation.com/content/70135/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Murray Wesson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A minor change, substituting ‘vilify’ for ‘offend’ and ‘insult’, would bring Section 18C more in line with similar laws in other democracies without undermining its effectiveness.Murray Wesson, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/699752016-12-08T19:08:35Z2016-12-08T19:08:35ZYou say ‘elite media’, I say real journalism. And now more than ever we must fight to keep it<figure><img src="https://images.theconversation.com/files/149166/original/image-20161208-18032-ye1976.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">What critics call the 'elite media' is actually journalism that serves the public interest.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>A word, if I may, on this nasty new term of abuse “elite media” – they who perpetrate “elite journalism”.</p>
<p>This is the journalism said by those who use the term to be out of touch with so-called “ordinary people” and their everyday concerns.</p>
<p>It is the journalism said to be done by people living inside the “<a href="https://www.theguardian.com/australia-news/2016/nov/28/david-leyonhjelm-deal-to-force-abc-and-sbs-from-behind-goats-cheese-curtain">goat’s cheese curtain</a>”, in the chic inner suburbs of our cities, who are dismissed as having no idea what it is like to live in the outer suburbs, much less in regional or remote areas.</p>
<p>The phrase was invoked recently by Liberal Democratic senator David Leyonhjelm in his irrational proposition that he could generate a “freedom offset” against the impositions of the Australian Building and Construction Commission legislation by forcing the ABC to conduct community forums after its board meetings.</p>
<p>This, he argued, would force its people to receive knowledge from those who lived beyond the “curtain” and so help broaden the ABC’s collective mind.</p>
<p>A variant on the theme is the phrase “black skivvy”, to denote people who likewise live in the inner city.</p>
<p>Malcolm Turnbull <a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-turns-fire-onto-abc-and-the-elite-media-for-distracting-people-20161114-gspbem.html">used the term “elite media”</a> with a curl of the lip during an interview a fortnight ago with Leigh Sales on ABC TV’s 7.30 program, when she asked him about his government’s preoccupation with amending Section 18C of the Racial Discrimination Act.</p>
<p>Was this, Sales asked, really the main everyday concern of the voting population and, if it wasn’t, why was his government spending so much time and energy on it?</p>
<p>Turnbull replied that she would have to put that question to her colleagues in the “elite media”, specifying the ABC but neglecting to mention The Australian, which is the media outlet that has been pushing the hardest on 18C.</p>
<p>His use of “elite media” was a piece of copycat rhetoric that had suddenly become the height of fashion in the immediate aftermath of Donald Trump winning the US presidential election. The “elite media” had got it all wrong. They were so out of touch that they had failed to see what was really going on in the minds of the American people.</p>
<p>That seems to be true. The US media did seem to miss the story comprehensively, but, in the process of debating why this happened, the word “elite” came to be used to describe a professional media that had lost democratic legitimacy.</p>
<p>In the US, at least, there has developed a so-called “alt media” – meaning an alternative media. It is derived from the term “alt right”, the alternative or extreme right wing of American politics.</p>
<p>Using online platforms – basically Facebook – the “alt media” proclaims that it will tell you information the mainstream media – the professional journalists – won’t tell you, because they are part of The Establishment and not to be trusted.</p>
<p>On this assertion, then, rests the “alt media’s” claim to democratic legitimacy.</p>
<p>It is a dangerous development because the “alt media” gives the impression of doing journalism when what it really does is a melange of gossip, propaganda and hate. It is part of the “fake news” phenomenon. It has nothing to do with the fourth-estate function of the media on which democratic politics depend.</p>
<p>Yet it is a development for which professional journalists in some parts of the mainstream media – and more especially their employers – have to share the blame.</p>
<p>When the internet burst into everyday life in 2006, big newspaper companies and their journalists became hooked on it as a source of cheap thrills and easy access to information. They republished material from the internet without doing anything like enough to verify it beforehand.</p>
<p>I know this because journalists I interviewed after the Black Saturday bushfires told me about it. That was seven years ago. They told me that they had this mantra: “If it’s wrong, it won’t be wrong for long.” The readers would see the mistakes, tell the newspaper and then it might be fixed.</p>
<p>As a result, professional journalism became cheapened, and the distinctions between professional journalism and online <em>ersatz</em> journalism became blurred.</p>
<p>Australia’s two biggest newspaper companies either didn’t see the risks or chose to ignore them.</p>
<p>Now we have reached the situation where real journalism is being dismissed as “elite”.</p>
<p>Real journalism involves collecting and verifying facts before publishing them. It involves adherence to legal and ethical standards concerning due process at law, avoidance of wrongful harm, and respect for public taste.</p>
<p>It involves the unfashionable function of gatekeeping – call it editing.</p>
<p>It involves shining a light in dark places to reveal things that people in power want concealed. That is how we know, for instance, about sexual abuse of children by clergy, and about bad behaviour by the insurance arm of the Commonwealth Bank.</p>
<p>Journalism like this involves accumulating evidence to a standard of proof commensurate with the gravity of the wrongdoing. It is a complex exercise demanding skill and experience.</p>
<p>Yes, professional journalism has many flaws and neither the practitioners nor the media industry they work for are as accountable as they should be for the way they use their power. But there is some accountability, including some serious legal consequences.</p>
<p>Moreover, they operate in the open, with no cloak of anonymity to hide behind.</p>
<p>This is the kind of journalism that serves the public interest.</p>
<p>It follows that it is in the public interest that professional journalism and the media industry respond effectively to the current challenge to their institutional legitimacy. Basically, that means doing journalism to high ethical standards and putting the need to be right ahead of the need to be first.</p>
<p>This is not about elite journalism versus alternative journalism. It is about real journalism versus non-journalism.</p>
<hr>
<p><em>Denis will be online for an Author Q&A between 10:30 and 11:30am AEDT on Friday, 9 December, 2016. Post any questions you have in the comments below.</em></p><img src="https://counter.theconversation.com/content/69975/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Denis Muller does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Suddenly ‘elite media’ has become a term of abuse, but in truth this is a battle between real journalism and non-journalism.Denis Muller, Senior Research Fellow in the Centre for Advancing Journalism, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/680702016-12-06T19:08:11Z2016-12-06T19:08:11ZAustralia’s human rights debate has always been political<figure><img src="https://images.theconversation.com/files/148802/original/image-20161206-25749-w2uzlj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Human Rights Commission president Gillian Triggs</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>Human rights have been a hot topic of late. The <a href="https://www.humanrights.gov.au/">Australian Human Rights Commission</a> president, <a href="https://www.thesaturdaypaper.com.au/news/politics/2016/04/23/human-rights-commission-president-gillian-triggs-speaks-out/14613336003160">Gillian Triggs</a>, has been accused of politicising her position, while The Australian newspaper and conservative politicians have led a campaign against Section 18C of the Racial Discrimination Act.</p>
<p>Why has Australia’s long commitment to human rights bodies and legislation suddenly become such an issue? After all, the Human Rights Commission celebrates what amounts to its 35th anniversary this year, and Section 18C has been on the books for more than 20 years.</p>
<p>Answering these questions involves in part looking at Australia’s previous reception of human rights. Contrary to federal minister Christopher Pyne’s recent <a href="http://www.smh.com.au/federal-politics/political-news/stay-out-of-politics-and-stick-with-human-rights-christopher-pyne-admonishes-gillian-triggs-20161022-gs8hwl.html">suggestion</a> that Triggs “stay out of politics and stick with human rights”, Australia’s historic engagement with human rights norms has always been informed by the politics and prejudices of the day.</p>
<h2>Human rights in history</h2>
<p>Although Australia was one of eight nations that drafted the 1948 Universal Declaration of Human Rights, it was slow to embrace these principles domestically. </p>
<p>Commenting on the impending 15th anniversary of the declaration in 1963, one department of external affairs bureaucrat pronounced himself a “sceptic” about such commemoration. A “routine press release” would suffice, at least “while we have discriminatory racial laws in the states and a racial immigration policy”.</p>
<p>Talking up human rights, it was feared, might draw unwanted attention to Australia’s less-than-stellar record. Equally, the declaration lacked enforceable agreements to back up human rights. As the surprisingly forthright external affairs minister, Paul Hasluck, put it at a Human Rights Year gathering in 1968, it was a document “that a nation would not mind having quoted against itself”.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=320&fit=crop&dpr=1 600w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=320&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=320&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=402&fit=crop&dpr=1 754w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=402&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=402&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A commemorative stamped envelope released by Australia Post to mark Human Rights Year, 1978.</span>
<span class="attribution"><span class="source">Supplied by author</span></span>
</figcaption>
</figure>
<p>This changed in the 1970s. The Whitlam government signed the twin covenants associated with the declaration in 1972, but was unable to make significant further progress. Only the Racial Discrimination Act passed before the government’s dismissal. In March 1976, enough nations had ratified the twin covenants to make them enforceable and, as such, a matter of urgency for the new Fraser government.</p>
<p>This was a time of global momentum in human rights. <a href="https://www.nobelprize.org/nobel_prizes/peace/laureates/1977/amnesty-facts.html">Amnesty International</a> received the Nobel Peace Prize in 1977 and US President Jimmy Carter began talking of their <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674724853">centrality</a> to a post-Vietnam foreign policy.</p>
<p>In 1978, the 30-year anniversary of the Universal Declaration of Human Rights, the Fraser government embarked on a large-scale commemorative project and proposed a human rights commission as a significant step towards Australia’s ratification of the covenants.</p>
<h2>Creating the commission</h2>
<p>The Whitlam government had proposed a human rights bill in 1973, which floundered in a debate about interference in state matters – particularly concerning Indigenous Australians. </p>
<p>From 1976 onward, the Fraser government took steps down a similar path, yet the bill’s failure to pass until 1981 highlighted the strength of debate. While everyone professed to support inalienable human rights, the definition was not at all certain, and they became a political football. </p>
<p>One of the biggest issues that slowed the bill’s passage was how to define the Universal Declaration of Human Rights’ “right to life”. A woman’s right to terminate a pregnancy – then and now subject to various restrictive state laws – was a big issue in Australia at the time. Anti-abortion groups sought to appropriate rights to their agenda.</p>
<p>In 1974, one Methodist minister <a href="http://nla.gov.au/nla.news-article110760798">remarked</a> that the proposed bill “allows a person to be deprived of their life if it be according to the law”. Such concerns were the main reason for the bill’s lengthy stay in parliament. </p>
<p>In 1980, an <a href="http://nla.gov.au/nla.news-article110584178">amendment</a> was made to the proposed bill to include “the rights of the unborn child”. While this appeased an anti-abortion majority in the lower house, it stalled in a hostile Senate. </p>
<p>This is just one example of the political scuffles that dogged the early operations of the commission. It was launched on December 10, 1981, and replaced in 1986 by the Human Rights and Equal Opportunity Commission. The topics of debate ranged from the rights of the family to socially constructed gender norms. Drawing distinctions between “politics” and “human rights” didn’t make sense then, and certainly doesn’t now.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=448&fit=crop&dpr=1 600w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=448&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=448&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=563&fit=crop&dpr=1 754w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=563&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=563&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Human Rights Commission workers informing the public at a Human Rights Day picnic in 1985.</span>
<span class="attribution"><span class="source">Federal Department of Information</span></span>
</figcaption>
</figure>
<h2>Words that wound</h2>
<p>The Racial Hatred Act inserted Section 18C into the Racial Discrimination Act. But its core principles had been the topic of fierce discussion for decades. </p>
<p>Conservative pressure had led to a similar provision being deleted from the original legislation in 1975. However, a late 1970s <a href="https://hatfulofhistory.wordpress.com/2015/11/28/forming-the-national-front-of-australia-asio-and-the-fledgling-far-right-group/">rise in hate groups and fascist violence</a> sparked renewed demands for laws to deal with “racist propaganda”. </p>
<p>The commission sponsored a conference titled “Words that Wound” in 1982, where a remarkable range of opinions echoed those of today. </p>
<p>Participants did not express a desire to trample freedom of speech, even at a time when 55% of Australians were polled as opposing a multicultural Australia. Instead, they wanted simply to control the flow of racist publications. These often encouraged violence and, as then commissioner Dame Roma Mitchell put it, were “perhaps the most hurtful barb” a minority group could receive. </p>
<p>The same issues that court conservative animosity today stirred passions among progressives in the 1980s. A representative of the Greek-Australian community forcefully defended “a right that is most precious to us – our freedom to express ourselves”. The chairman of the Association for Immigration Reform also cautioned that such laws could well be used against Indigenous activists campaigning for a treaty with white Australia. </p>
<p>Such concerns were also in the minds of those drafting the legislation. The result was that our current laws give ample protections for free speech, with only the most <a href="http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918">egregious</a> cases prosecuted.</p>
<p>Equally, though, recent <a href="http://www.abc.net.au/news/2016-12-06/chinese-australians-racist-discrimination-asian-mandarin-vietnam/8092926">findings</a> that one-third of young Australians face racial discrimination raise questions over whether the Racial Discrimination Act’s topical treatments of racist outbursts is enough to deal with a broad, systemic problem.</p>
<p>Historicising both the Australian Human Rights Commission’s foundation and initial debates about legislative limitations on hate speech demonstrates that human rights have never been above politics. Equally, questions of freedom of expression were as much on the lips of past proponents of these laws as their contemporary detractors.</p><img src="https://counter.theconversation.com/content/68070/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jon Piccini does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Looking back at the Australian Human Rights Commission’s foundation shows that human rights have never been above politics.Jon Piccini, UQ Research Fellow, School of Historical and Philosophical Inquiry, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/699722016-12-06T03:01:09Z2016-12-06T03:01:09ZFirst the word, then the deed: how an ‘ethnocracy’ like Australia works<figure><img src="https://images.theconversation.com/files/148754/original/image-20161205-25749-11z06wq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia displays many of the hallmarks of an ‘ethnocracy’ – albeit one cloaked in the rhetoric of multiculturalism.</span> <span class="attribution"><span class="source">AAP/Nikki Short</span></span></figcaption></figure><p>Amid the <a href="https://www.theguardian.com/australia-news/live/2016/nov/28/turnbulls-agenda-hangs-in-balance-as-minor-party-support-skyrockets-politics-live?page=with%3Ablock-583bb47ae4b0da4920d6d085">post-truth barrage engulfing Australian politics</a>, one claim that needs a dose of testing is Malcolm Turnbull’s statement that Australia is the <a href="http://www.jwire.com.au/the-most-successful-multicultural-society-in-the-world/">world’s leading multicultural society</a>.</p>
<p>Anyone watching the <a href="http://www.afr.com/news/ethnic-groups-target-marginal-coalition-mps-over-18c-changes-20161117-gsrf36">reaction of ethnic communities</a> to the triple whammy of the <a href="http://www.abc.net.au/news/2016-11-08/malcolm-turnbull-announces-racial-discrimination-act-inquiry/8004640">Section 18C “review”</a>, the <a href="http://www.smh.com.au/federal-politics/political-news/peter-dutton-attacks-malcolm-frasers-refugee-legacy-20161117-gss2ad.html">“Muslim terrorist grandchildren” accusations</a> and <a href="http://www.abc.net.au/news/2016-11-18/inquiry-to-consider-revoking-visas-for-migrants-in-gangs/8036774">the African youth crime wave claims</a> would notice that it’s only in the Turnbull tower that such a post-truth might survive its utterance. No-one else to his right or left would feel comfortable with such a grand pronouncement, albeit for opposing reasons.</p>
<p>So, how is it that, in the blink of an eye, such a cavalcade of anti-multiculturalist initiatives can erupt? <a href="https://epress.lib.uts.edu.au/journals/index.php/mcs/issue/view/399/showToc">Recent research</a> looking at other countries suggests an explanation – however discomforting it may be.</p>
<p>Australia as a Commonwealth was founded as an “ethnocracy” in 1901. It was designed to ensure nationals of British descent would be able to create a society populated by individuals as much like themselves as possible. And it has yet to fully transition to a more egalitarian pluralist contemporary democracy. </p>
<h2>What is an ethnocracy?</h2>
<p><a href="https://epress.lib.uts.edu.au/journals/index.php/mcs/article/view/5272">Ethnocracy</a> describes societies where democracy exists for the dominant ethnic groups, but is less available to cultural and religious minorities. </p>
<p>Recent studies of contemporary ethnocracies include <a href="https://epress.lib.uts.edu.au/journals/index.php/mcs/article/view/5107">Jerusalem</a>, <a href="https://epress.lib.uts.edu.au/journals/index.php/mcs/article/view/5143">Belfast</a> and <a href="http://www.academia.edu/4640687/Borderlands_of_the_EU_The_Spanish_Enclave_of_Ceuta_in_Morocco">Ceuta</a>, the Spanish enclave in Morocco.</p>
<p>In each of these culturally and/or religiously diverse cases we find democratic structures, widely available suffrage and a free-ish – if nevertheless self-interested – media. </p>
<p>We also find one ethnic or religious grouping dominates the elite structures. The courts, media and social institutions are mostly managed by the elites, which they use to defend their interests and worldviews. </p>
<p>These elites are cultural. And their institutions serve to shape and sustain their cultural interests. They do this through exclusion as much as condemnation of transgressions.</p>
<p>When they feel their prerogatives are threatened by too egalitarian a reading of the rules of the game, they invariably act to reinforce their dominance. This remains the heart today of what was once called the <a href="http://www.abc.net.au/radionational/programs/counterpoint/where-did-the-culture-wars-come-from3f/4801704">“culture wars”</a>. </p>
<h2>Is Australia an ethnocracy?</h2>
<p>Australia displays many of the hallmarks of such an ethnocracy – albeit one cloaked in the rhetoric of multiculturalism. </p>
<p><a href="https://www.pm.gov.au/your-government/cabinet">Federal cabinet</a> and the ruling parties’ leadership are almost totally of long-standing Australian or Western European background. Despite <a href="http://www.racismnoway.com.au/about-racism/population/index-Diversit.html">25% of Australia’s population</a> having non-Anglo-European forebears, there is little or no sign of these antecedents producing descendants who have moved into key politico-cultural management roles. For example:</p>
<ul>
<li><p>The ABC <a href="http://about.abc.net.au/who-we-are/the-abc-board/">has a board</a> that reflects the people hardly at all. Its appointment as managing director of a woman with a Chinese mother – <a href="http://www.smh.com.au/national/audiences-could-pay-under-new-abc-boss-michelle-guthrie-20151217-glqkqs.html">Michelle Guthrie</a> – was so striking that it continues to draw attention. </p></li>
<li><p>The <a href="http://www.hcourt.gov.au/justices/about-the-justices">High Court</a> is about to have a widely respected woman, Susan Kiefel, as chief justice – but no judges who have non-European or even mixed heritage. </p></li>
</ul>
<h2>How it shapes refugee debates</h2>
<p>Australia adopted its <a href="https://www.refugeecouncil.org.au/getfacts/seekingsafety/refugee-humanitarian-program/history-australias-refugee-program/">first refugee policy in 1977</a>, in the midst of dealing with its first-ever major refugee waves from non-European societies.</p>
<p>When the refugee policy was created, the <a href="http://www.theaustralian.com.au/national-affairs/immigration/peter-dutton-says-malcolm-frasers-immigration-policy-to-blame-for-crime-gangs/news-story/0361f6c4a7b72b7d74d162e983123cd3">(now much-maligned)</a> Fraser government and the immigration minister, Michael MacKellar, were dealing with both the end of White Australia and the beginning of the global era of refugee people movement. </p>
<p>From the outset, the refugees of the mid-1970s were framed by <a href="http://eprints.qut.edu.au/3878/1/3878_1.pdf">the racial debates of the time</a>. Their cultural background was almost unknown in Australia. As the rougher edges of the traumatised refugee communities began to appear – often associated with <a href="http://www.dailytelegraph.com.au/inside-sydneys-mr-big-men/story-e6freuy9-1225746653472">crime, drugs and violence</a> – Australian public discourse <a href="https://www.researchgate.net/profile/Katharine_Betts/publication/236278146_Boat_people_and_public_opinion_in_Australia/links/00b7d5178c58276599000000.pdf">about refugees</a> was shaped by public attitudes to race and religion. </p>
<p>Repeatedly, the cultures of the refugees, which have proved to be wonderfully adaptive to the twists and turns of Australian modernity in the past 40 years, <a href="http://www.topix.com/forum/au/sydney/T6OKFCPUKKJT711OV">have been publicly tarred</a> on the basis of transgressions by minorities among them. </p>
<p>Such antagonism occurs in many other situations where ethnocracies find their power or interests under threat. Whole communities and neighbourhoods <a href="http://www.theaustralian.com.au/national-affairs/how-i-lost-faith-in-multiculturalism/story-fn59niix-1226031793805">are characterised</a> as though they contain nothing but angry and violent young men bent on destruction and eager for corrupt opportunities. </p>
<p>But, for example, many of Sydney’s most successful criminals and corrupt officials have <a href="http://www.smh.com.au/nsw/strange-bedfellows-arrested-in-massive-crackdown-on-sydneys-underworld-20140515-zrdh7.html">nothing to do</a> with either of the two communities most often branded as threats to good order, and live nowhere near them. </p>
<p>Class factors also seem to be at work. The issues raised in condemnation usually exclude the <a href="http://criminal-lawyer.com.au/our-services/white-collar-crime/">white-collar crimes</a> associated with residents of more salubrious, Euro-Australian neighbourhoods. </p>
<p>If we think about Australia as an ethnocracy, where advocates of democratic pluralism push back against proponents of a singular Anglo moral hierarchy, then the convulsions shaking the multicultural policy space become more explicable. </p>
<p>Australian ethnocracy has many champions; the latest to out himself is Dick Smith. Smith has a long history of opposition to immigration and support for nationalist rhetoric, culminating in his <a href="http://www.news.com.au/finance/work/leaders/dick-smith-backs-pauline-hansons-plan-for-one-nation-state-election-blitz/news-story/3a6f5c4f24cb2d37e282e26b74a6f9c0">endorsement of One Nation</a>. </p>
<p>Both the government MP responsible for multicultural affairs, <a href="http://www.abc.net.au/news/2015-10-15/liberal-senators-join-calls-to-amend-racial-discrimination-act/6857252">Zed Seselja</a>, and the chair of the Australian Multicultural Council, <a href="http://www.theaustralian.com.au/national-affairs/human-rights-expert-sev-ozdowski-backs-changes-to-18c/story-fn59niix-1226901352452">Sev Ozdowski</a>, are ardent advocates of cutting the protections against bigotry under Section 18C. </p>
<p>Carrying a torch for multiculturalism is no guarantee of anything to do with defending the rights of slandered minorities. Instead, it reveals something about the way multiculturalism under the current government has become a shield for advancing ethnocracy’s prerogatives.</p><img src="https://counter.theconversation.com/content/69972/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Jakubowicz receives funding from the ARC, the Human Rights Commission and VicHealth, for research on cyber-racsim.</span></em></p>Australia was designed at Federation to ensure nationals of British descent would be able to create a society populated by individuals as much like themselves as possible.Andrew Jakubowicz, Professor of Sociology, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/693692016-11-24T10:08:40Z2016-11-24T10:08:40ZGrattan on Friday: The government is compromising Malcolm Turnbull’s commitment to inclusion<p>Imagine Tony Abbott was still prime minister and Malcolm Turnbull remained his restless ministerial servant.</p>
<p>Abbott, having earlier abandoned his attempt to revise Section 18C of the Racial Discrimination Act, decides – under the combined pressure from conservative colleagues and a couple of unfortunate and much-publicised cases – to put it back on the table.</p>
<p>Then, Immigration Minister Peter Dutton targets the Fraser government for its “mistakes” in bringing in Lebanese Muslims, some of whose descendants have been charged with terrorism offences.</p>
<p>What would Turnbull be saying?</p>
<p>Probably, despite having in the past expressed support for changing the section, he’d be warning that resurrecting the 18C debate would risk another ethnic backlash which would divert attention from key economic messages.</p>
<p>And he’d be arguing – albeit sotto voce – that Dutton, in visiting the sins of the grandchildren on the grandparents and the government which helped them, was dog-whistling as well as creating a distraction.</p>
<p>But Turnbull is no longer aspiring to the prime ministership but occupying it, and everything is different.</p>
<p>So although 18C was recently not on his agenda he has now referred it to a parliamentary committee. And he has heaped bountiful praise on Dutton for his general handling of his portfolio while trying to avoid the flypaper of his specific comments, which have stirred anger among the Muslim Lebanese and prompted death threats to parliament’s first Muslim woman MP Anne Aly, though she is not Lebanese.</p>
<p>Turnbull still talks inclusion but his government’s words and actions are compromising its commitment to it. Issues of race were an unfortunate and ugly theme through this penultimate parliamentary week.</p>
<p>The Dutton attack started last week when the minister was speaking to Andrew Bolt about a crime wave in Melbourne and the involvement of Sudanese people. Bolt referred to Fraser getting “wrong” the Lebanese intake, which was a humanitarian response to that country’s civil war and a matter of internal debate within the government at the time.</p>
<p>Dutton said it was the second or third generation who became foreign fighters. “The reality is that Malcolm Fraser did make mistakes in bringing some people in, in the 1970s – we’re seeing that today and we need to be honest in having that discussion.”</p>
<p>In parliament this week, Dutton defended his remark with a single statistic: of the last 33 people charged with terrorism-related offences, 22 were from second- and third-generation Lebanese Muslim backgrounds.</p>
<p>Liberal sources report that Dutton’s comments have won a lot of support on his own side but also have been polarising within the Coalition.</p>
<p>There were signs of the latter at Tuesday’s Liberal Party and Coalition meetings, when moderate Liberal Trent Zimmerman, who is from Sydney, stressed the importance of maintaining the goodwill of ethnic communities and noted the progress the Liberals had made with the Chinese, Indians and Lebanese Muslims. Targeting a group was unhelpful, Zimmerman said.</p>
<p>Zimmerman and others worry about the impact of Dutton’s line in NSW Coalition-held seats with big ethnic communities. Quite apart from the substance of the issue, Bill Shorten – who flayed Dutton – would be alive to the potential fallout in western Sydney.</p>
<p>In the partyroom Zimmerman was slapped down by Victorian conservative Michael Sukkar, of Lebanese Maronite Christian background, who strongly supported Dutton.</p>
<p>It was deliberate that no-one rose to back Zimmerman. There was an informal agreement to let him run alone. The critics of Dutton wanted to lay down a marker, rather than trigger a brawl that would be damaging for Turnbull.</p>
<p>Colleagues believe one motive driving Dutton, a Queenslander, is a desire to shore up the defences against One Nation. He is said to be alarmed about the impact of the Hansonites in his home state. </p>
<p>It’s a view shared by others in the Liberal National Party: Attorney-General George Brandis was caught on an open mic warning about One Nation’s strength. Dutton’s own seat is volatile – his majority took a haircut in July.</p>
<p>As Dutton digs in against widespread criticism, the parliamentary joint committee on human rights is starting work on the 18C inquiry. It’s on a tight deadline, reporting by February 28. Submissions have opened and the committee will have a fortnight of public hearings in January covering three capital cities in each week, and also take evidence in Canberra.</p>
<p>The inquiry will be a sharp test of conservative versus moderate thinking in the Liberal Party. The government members of the committee, all Liberals, include senators Linda Reynolds and James Paterson, both of whom take a tough line against 18C, as well as lower house members Russell Broadbent and Julian Leeser, who oppose changing the section while favouring a better administrative process. The committee is chaired by Ian Goodenough, a supporter of putting different words into the act.</p>
<p>In accommodating the Liberal conservatives with the inquiry Turnbull has created a challenge for this minority of Liberal moderates on the committee. How they handle it remains to be seen.</p>
<p>The more that race issues are elevated and ethnic communities’ fears are fanned, as has happened in the Dutton controversy, the harder it could become to change 18C – already very difficult because of the Senate.</p>
<iframe src="https://www.podbean.com/media/player/3xwmd-64e74a?from=yiiadmin" data-link="https://www.podbean.com/media/player/3xwmd-64e74a?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/69369/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Imagine Tony Abbott was still prime minister and Malcolm Turnbull remained his restless ministerial servant.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/692762016-11-23T04:01:05Z2016-11-23T04:01:05ZPolitics podcast: Barnaby Joyce on the state of the National Party<figure><img src="https://images.theconversation.com/files/147120/original/image-20161123-19712-1a3ttyk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">Mick Tsikas/AAP</span></span></figcaption></figure><p>Earlier this week, footage aired of Attorney-General George Brandis speculating that Queensland’s Liberal National Party might demerge. But Nationals leader and Deputy Prime Minister Barnaby Joyce says this won’t happen. </p>
<p>“It’s not going to happen. You know why? Because the people who make that decision is not George, or myself or anybody else, it’s the membership and the membership would have to decide they want to do it and I haven’t heard any big swathes of members having meetings saying that want to demerge.”</p>
<p>Joyce tells Michelle Grattan the Nationals need to differentiate themselves from the Liberals. </p>
<p>“I think people clearly understand there’s a difference between the National Party and the Liberal Party. They recognise the qualities in both. If there wasn’t a reason to differentiate then you would amalgamate. So I’m very – always have been – parochially National. </p>
<p>"When I first came into politics back in 2005 and we got down to 12 members and senators I think, there was always this ‘oh we should just fold this show up’ and I fought as hard as I could with others to make sure that didn’t happen,” Joyce says.</p>
<p>Acknowledging the threat posed by One Nation, Joyce puts that party’s success into the context of a global wave of right-wing populism.</p>
<p>“In those messages are things that matter to people - are messages that matter, that resonate. People wouldn’t just change [their vote] because they got a giggle. They change because they get a message and go ‘yep, that’s all I needed to know and that’s enough for me to change my vote’. And that’s what’s happening now and we’ve got to compete in that space.”</p>
<p>Joyce also has a reality check for his colleagues pushing for changes to Section 18C of the Racial Discrimination Act.</p>
<p>“There’s a set of people who are more intensely involved in politics and they might be concerned – but if you think I go past the guys working on the road and as I say ‘g'day’ to them and ask them how’s the job going [that] they’d say ‘I really want to talk to you about 18C’ – no they don’t. </p>
<p>"They are interested in the things they can touch. They do not occupy themselves in the deeper philosophical thoughts.</p>
<p>"What we’ve got to be really careful of is once you leave the party room meeting – whether it’s here or whether it’s your branch meeting back in the country – don’t think that’s the issue that’s going to get across to people in the pub on a Friday night.” </p>
<hr>
<p><em>Music credit: “What tomorrow brings”, by Ketsa on the Free Music Archive</em></p><img src="https://counter.theconversation.com/content/69276/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Earlier this week, footage aired of George Brandis speculating that Queensland's Liberal National Party might demerge. But Barnaby Joyce says this won't happen.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/683542016-11-15T02:33:55Z2016-11-15T02:33:55ZChange Section 18C? Critics should do this crash course first<p>The federal government has announced a <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/FourthQuarter/Parliamentary-inquiry-into-freedom-of-speech.aspx">parliamentary inquiry</a> into free speech and section 18C of the Racial Discrimination Act.</p>
<p>So the time is right for a crash course on <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">the law</a>, <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">its exemptions</a>, and <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/">the powers of the Australian Human Rights Commission</a>. </p>
<p>Let’s start with the basics.</p>
<h2>Can the Australian Human Rights Commission sue a person under 18C?</h2>
<p>No. It couldn’t even if it wanted to.</p>
<p>The parliamentary inquiry was announced in the wake of the Prior v QUT <a href="https://castancentre.files.wordpress.com/2016/11/prior-v-qut.pdf">case</a>, in which the federal court <a href="https://www.theguardian.com/australia-news/2016/nov/04/qut-computer-lab-racial-discrimination-lawsuit-thrown-out">dismissed claims</a> brought under section 18C of the Racial Discrimination Act against three Queensland University of Technology (QUT) students. </p>
<p>In that case, an Indigenous QUT staff member Cindy Prior <a href="https://castancentre.files.wordpress.com/2016/11/prior-v-qut.pdf">alleged</a> that Facebook comments made by the students after they were ejected from a computer lab reserved for Indigenous students breached section 18C of the Racial Discrimination Act.</p>
<p>Following the decision, Prime Minister Malcolm Turnbull <a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-says-human-rights-commission-has-damaged-its-reputation-over-18c-and-must-reform-20161106-gsjc2i.html">told</a> the ABC that the Human Rights Commission:</p>
<blockquote>
<p>has done a great deal of harm to its credibility by bringing the case against the Queensland students.</p>
</blockquote>
<p>That may have left some people under the mistaken impression that the Commission sued the students. It did not, and could not. </p>
<p>The Commission has no power to litigate in relation to an alleged breach of section 18C or any other provision of the Racial Discrimination Act. Only a person alleging their own racial or ethnic group was vilified by statements made in public can commence court proceedings. </p>
<p>That is exactly what happened in the Prior v QUT case. After the Commission terminated Prior’s complaint in August 2015, having decided there was no reasonable prospect of the complaint being successfully conciliated, Cindy Prior exercised her right to commence court proceedings. Her claim was summarily dismissed in relation to three of the named respondents. Proceedings continue for others.</p>
<p>The Commission has been at pains to point out that they did not “bring the case” to court, saying that:</p>
<blockquote>
<p>At no stage does the Commission initiate or prosecute a complaint. </p>
</blockquote>
<p>In the QUT case, <a href="http://www.theaustralian.com.au/higher-education/qut-race-case-the-punishment-is-the-process-says-alex-wood/news-story/af1c3975a427d1a6d04619347c5d6dbe">the Commission was criticised</a> for not communicating with all of the students involved, taking too long to attempt to address the original complaint, and not terminating the complaint earlier. These criticisms should be assessed on their merits and, as appropriate, lessons learned.</p>
<h2>Is the bar “set too low”?</h2>
<p>Not according to the courts. </p>
<p><a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-says-human-rights-commission-has-damaged-its-reputation-over-18c-and-must-reform-20161106-gsjc2i.html">Critics</a> of 18C have <a href="https://www.google.com.au/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=qut%20bar%20set%20too%20low">suggested</a> the “bar is set too low” because section 18C uses the phrase “offend, insult, humiliate or intimidate” to define the threshold for unlawful racial vilification. </p>
<p>In the Prior v QUT case, Judge Jarrett <a href="https://castancentre.files.wordpress.com/2016/11/prior-v-qut.pdf">found</a> that the Facebook comments of two of the respondents did not meet the legislative threshold and therefore were not unlawful. (In the case of the third respondent, the judge found that it could not be proven that the student had been responsible for the allegedly vilifying Facebook comment.) </p>
<p>In stark contrast to the <a href="http://www.theaustralian.com.au/opinion/columnists/grace-collier/no-offence-intended-modern-rights-mean-fewer-rights-for-majority/news-story/d3e71cddd43cfa433d54aaff1cd514bb">regular attempts by some opponents</a> to generate hostility towards section 18C by saying it covers any offence, the courts have consistently ruled that the bar is not low.</p>
<p>Previous <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2001/1007.html">judgments</a> have clarified that breaching 18C requires conduct with</p>
<blockquote>
<p>profound and serious effects, not to be likened to mere slights. </p>
</blockquote>
<p>So the QUT decision confirms that the legislature and judiciary have made a fair assessment of where the line should be drawn.</p>
<p>It’s also important to remember that <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">section 18D</a> of the Act details exemptions to 18C, which covers anything said or done as part of an artistic work or “any other genuine purpose in the public interest”.</p>
<h2>Has 18C always been a big issue?</h2>
<p>Not really. </p>
<p>Section 18C <a href="http://www.austlii.edu.au/au/legis/cth/num_act/rha1995109/">was introduced in 1995</a> recognising that racial vilification is a problem that could and should be tackled. </p>
<p>It has operated without much attention or fuss for over two decades. It is not a panacea, but it <a href="http://www.austlii.edu.au/au/journals/UNSWLawJl/2016/18.html">has supported legal redress</a> in a modest number of instances where individuals and communities have been subjected to racist abuse that none of us should have to endure.</p>
<p>Of the hundreds of instances of alleged racial vilification over the years, only three have been regarded as sufficiently noteworthy to attract significant media attention and public comment.</p>
<p>One in 2011 involved journalist Andrew Bolt, who was <a href="http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918">found</a> in the Federal Court to have breached the Act. Then there was the QUT case. The third, which centred on a cartoon by Bill Leak, was recently <a href="http://www.abc.net.au/news/2016-11-12/eric-abetz-welcomes-bill-leak-cartoon-complaint-withdrawal/8020420">before the Commission and then subsequently withdrawn</a>. </p>
<p>Is there any other area of the law in which three controversial decisions in over 20 years would be regarded as a reason for a parliamentary inquiry? </p>
<p>Or where one instance of summary dismissal is regarded as proof of a fatal flaw? What is it about laws designed to address the harm caused by racist speech that makes some people so agitated?</p>
<p>Over the last 25 years only 1.8% of racial vilification complaints nationally <a href="https://theconversation.com/explainer-how-do-australias-laws-on-hate-speech-work-in-practice-26105">have ended up in a court or tribunal for adjudication</a>. Court cases are the exception, not the rule.</p>
<p>The conciliation process overseen by the Australian Human Rights Commission (and equivalent bodies in the states and territories) is confidential. This means the public rarely hears about the typical cases in which a racial vilification complaint is resolved. </p>
<p>This reflects a decision taken many decades ago that, in the area of anti-discrimination, mediation-based dispute resolution processes are preferable to protracted, expensive litigation in courts. Thousands of complainants and respondents would agree.</p>
<h2>A strong symbolic message</h2>
<p>Section 18C is no more or less flawed than many other laws. Because it is limited to matters of substantial public harm, it cannot be used to complain about having one’s feelings hurt. </p>
<p>Critics have called for the words “insult” and “offend” to be removed from section 18C. But this would likely have no legal effect; remember, previous judgements have said that conduct must have “profound and serious effects” before one can say 18C has been breached.</p>
<p>However, removing these words would send a troubling symbolic message to the communities that section 18C is supposed to protect: that the government feels they should bear the burden of more harm so that others can have free speech. Could there be a more wrong message to send at this time in our history?</p><img src="https://counter.theconversation.com/content/68354/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katharine Gelber has received funding from the Australian Research Council and the Academy of Social Sciences Australia.</span></em></p><p class="fine-print"><em><span>Luke McNamara has received funding from the Australian Research Council.</span></em></p>The time is right for a crash course on section 18C of the Racial Discrimination Act, its exemptions and the powers of the Australian Human Rights Commission.Katharine Gelber, Professor of Politics and Public Policy, The University of QueenslandLuke McNamara, Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/686652016-11-11T02:42:48Z2016-11-11T02:42:48ZVIDEO: Michelle Grattan on Australia’s reaction to the Trump victory<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/zh0PBxFS3cU?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>Donald Trump’s triumph in the US presidential contest caught many off-guard, including Australia’s politicians. Michelle Grattan tells University of Canberra vice-chancellor Professor Deep Saini the predictions within the government were that Hillary Clinton would win.</p>
<p>“There was a feeling that they knew what was happening and they were basically across the coming agenda from the United States. Now of course the Trump victory has meant that there’s a great deal of re-thinking and uncertainty,” Grattan says.</p>
<p>“It’s interesting that Malcolm Turnbull was very quick to ring the president-elect, congratulate him, note that they were both former businessmen who’d gone into politics quite late in their careers and try to establish an early relationship. But behind this there is a good deal of uncertainty about knowing how this is going to affect the world and our region in particular.”</p><img src="https://counter.theconversation.com/content/68665/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Donald Trump’s triumph in the US presidential contest caught many off-guard, including Australia’s politicians.Michelle Grattan, Professorial Fellow, University of CanberraPaddy Nixon, Vice-Chancellor and President, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/684382016-11-08T07:33:57Z2016-11-08T07:33:57ZInquiry opens way for changing Section 18C and the Human Rights Commission too<p>Malcolm Turnbull, who just recently had “no plans” to change section 18C of the Racial Discrimination Act (RDA), has now launched an inquiry that will lead to changing both it and the Human Rights Commission.</p>
<p>A combination of unrelenting pressure from conservatives in his ranks, two controversial high-profile cases, mishandling by the Human Rights Commission, and a blitzkrieg by News Corp has forced Turnbull to accommodate the noisy critics.</p>
<p>The announcement of a parliamentary inquiry is the first step towards change. But this is a risky path for Turnbull to go down.</p>
<p>It carries the danger of rerunning what in Tony Abbott’s days was a very damaging debate, involving a big backlash against the government from ethnic communities.</p>
<p>It’s all very well for Turnbull to talk in high falutin terms about maintaining “balance” in the debate, warning that Labor will accuse the government of trying to licence hate speech.</p>
<p>Unless a lot has changed, the ethnic communities don’t require too much encouragement to be worried about a rewriting of the law. Not that Labor won’t be using the opportunity to stir the issue and strengthen its support among these groups.</p>
<p>18C makes it unlawful to “offend, insult, humiliate or intimidate” a person or group on the basis of race, colour or national or ethnic origin. Coalition conservatives at the least want “offend” and “insult” taken out.</p>
<p>It is notable that the Coalition’s original assault on 18C – which survived untouched throughout the Howard years – was triggered by right wing columnist Andrew Bolt losing a court case revolving around his comments about some fair skinned Aborigines.</p>
<p>Now the parliamentary inquiry follows the intense debate around a complaint against Bill Leak’s cartoon in The Australian, featuring an Aboriginal father who didn’t know his son’s name. Predictably this has produced a ferocious campaign from that newspaper, which had already long pushed for change. The Leak matter remains unfinished.</p>
<p>The Human Rights Commission must take some responsibility for what’s happened.</p>
<p>It appeared to be deliberately encouraging a complaint against Leak, although there was little chance of such a complaint succeeding, because of the public interest protection in 18D.</p>
<p>Its handling of the case involving students and a staffer at the Queensland University of Technology, where a complaint was lodged after the students were excluded from an Indigenous-only area, dragged on far too long and, it appears, was marked by poor process.</p>
<p>The parliamentary inquiry will be done by the Joint Committee on Human Rights; the committee’s chairman, Ian Goodenough, has said he personally favours removing the words “insult” and “offend”.</p>
<p>The terms of reference are broad. Reporting by the end of February, the inquiry will examine whether the relevant part of the RDA imposes “unreasonable restrictions upon freedom of speech” and, if so, how 18C and 18D should be reformed.</p>
<p>It will also look at whether the Commission’s handling of complaints should be reformed, including in relation to the appropriate treatment of trivial or vexatious complaints and those that have no reasonable prospect of success, and ensuring matters are dealt with in timely manner.</p>
<p>It will probe “whether the practice of soliciting complaints to the Commission (whether by officers of the Commission or by third parties) has had an adverse impact upon freedom of speech or constituted an abuse of the powers and functions of the Commission, and whether any such practices should be prohibited or limited”.</p>
<p>Apart from the specifics, there is a broad catch-all term of reference: “whether the operation of the Commission should be otherwise reformed in order better to protect freedom of speech and, if so, what those reforms should be”.</p>
<p>There can be little argument with the need to reform the processes for handling the 18C complaints; last week Liberal backbencher Julian Leeser put forward suggestions for doing this. The Commission itself has called for some amendments. </p>
<p>But this inquiry could pave the way for an extensive overhaul and, potentially, a significant weakening of the Commission, which is deeply disliked by many Coalition MPs.</p>
<p>Current president Gillian Triggs, constantly under attack from some in the Coalition, ends her term next year, so the government will get the opportunity to install its own person as well as make changes to the body. What sort of clout the Commission will be left with remains to be seen.</p>
<p>While the current push for change to 18C has come from the government backbench, and especially from senators, some government MPs with ethnic constituencies are concerned and sceptical.</p>
<p>John Alexander, in John Howard’s old seat of Bennelong, is disappointed that 18C has been reopened and told the ABC it doesn’t rank in the top 100 issues.</p>
<p>There is no doubt that if you were starting again to write the RDA, it would be better not to include “offend” and “insult”.</p>
<p>But context is everything, and there are three relevant contextual aspects.</p>
<p>One is that winding back protections can send out more negative signals to those who might feel vulnerable than if the protections were not put there in the first place.</p>
<p>Second, as the government goes into the next election with virtually no margin, it is somewhat rash to place an extra burden on the members in marginal seats by stirring ethnic agitation.</p>
<p>Third, the new move threatens to set up another diversion, when the government is having a good deal of trouble managing the important mainstream issues.</p>
<iframe src="https://www.podbean.com/media/player/2cf4t-645bcb?from=yiiadmin" data-link="https://www.podbean.com/media/player/2cf4t-645bcb?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/68438/count.gif" alt="The Conversation" width="1" height="1" />
Malcolm Turnbull, who just recently had “no plans” to change section 18C of the Racial Discrimination Act (RDA), has now launched an inquiry that will lead to changing both it and the Human Rights Commission…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/684322016-11-08T06:03:50Z2016-11-08T06:03:50ZPolitics podcast: Julian Leeser on section 18C of the Racial Discrimination Act<figure><img src="https://images.theconversation.com/files/145001/original/image-20161108-4711-19x5m06.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">Pat Hutchens</span></span></figcaption></figure><p>Many in the government have clamoured for changes to be made to section 18C of the Racial Discrimination Act. Liberal backbencher Julian Leeser, however is not one of them. </p>
<p>The member for the northern Sydney seat of Berowra tells Michelle Grattan there are definitely people within the Liberal Party who share his view that Section 18C “achieves a good balance between allowing people the freedom of speech which is necessary in a democracy like Australia but also protecting racial minorities from racial vilification and racial slurs”.</p>
<p>“But the thing that I think unites everybody in this debate, regardless of your view on Section 18C, is that the process underscored in the QUT case and also in the Bill Leak case, just didn’t work as well as it should have,” Leeser says.</p><img src="https://counter.theconversation.com/content/68432/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many in the government have clamoured for changes to be made to Section 18C of the Racial Discrimination Act. Liberal backbencher Julian Leeser, however is not one of them.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/682352016-11-06T20:27:38Z2016-11-06T20:27:38ZQUT discrimination case exposes Human Rights Commission failings<figure><img src="https://images.theconversation.com/files/144694/original/image-20161106-27904-gfgmq3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">QUT student Calum Thwaites arrives at the Federal Court in Brisbane.</span> <span class="attribution"><span class="source">AAP/Dan Peled</span></span></figcaption></figure><p>In a decision that was seen as a litmus test for the controversial <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">section 18C</a> of the <em>Racial Discrimination Act 1975</em> (Cth) (RDA), <a href="https://theaustralianatnewscorpau.files.wordpress.com/2016/11/prior-v-queensland-university-of-technology-ors-no-2-2016-fcca-2853.pdf">the Federal Circuit Court has dismissed</a> Cindy Prior’s case against Queensland University of Technology students Alex Wood, Calum Thwaites and Jackson Powell. Prior had alleged that these students breached <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">section 18C</a>. Judge Michael Jarrett concluded that Prior’s claim against them had <a href="http://www.austlii.edu.au/au/legis/cth/consol_reg/fccr2001262/s13.10.html">no reasonable prospect of success</a>.</p>
<h2>What was the case about?</h2>
<p>On May 28, 2013, Wood and two other students were using a QUT computer lab when Prior asked them whether they were indigenous. They replied they weren’t. Prior then asked them to leave.</p>
<p>Later that day, on the “QUT Stalkerspace” Facebook page, Wood posted:</p>
<blockquote>
<p>Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation…?</p>
</blockquote>
<p>Many people commented. Powell posted:</p>
<blockquote>
<p>I wonder where the white supremacist computer lab is…. </p>
</blockquote>
<p>Prior alleged that Thwaites posted “ITT niggers”. (A claim that Thwaites has <a href="http://www.theaustralian.com.au/higher-education/offer-to-drop-qut-race-slur-case-for-5000/news-story/2cd2f6b1598d776a49acd14ef2f9bcba">always categorically denied</a>.)</p>
<p>Prior complained to QUT about these and other comments, which were promptly removed. However, Prior was ultimately unhappy with QUT’s handling of the matter and lodged a complaint in the Australian Human Rights Commission (AHRC).
The AHRC conciliated Prior’s complaint. However, it did not contact the students directly about the complaint or the conciliation conference. Instead, it left this task to QUT. <a href="http://www.theaustralian.com.au/national-affairs/indigenous/watchdog-kept-18c-respondent-in-the-dark-about-qut-complaint/news-story/b5aa4706ba62548bd20353bd1682f31b">Powell did not know about Prior’s complaint</a> until after the conciliation conference.</p>
<p>Conciliation failed, and Prior commenced proceedings in the Federal Circuit Court against QUT, certain QUT employees, and a number of QUT students including Wood, Thwaites and Powell. <a href="http://www.theaustralian.com.au/higher-education/racial-stoush-erupts-over-qut-computer-lab/news-story/b80de339339f2d5588839ac06f3c8909">Prior’s claim was for A$247,570.52</a>. Prior alleged that the students had breached 18C. She also alleged that QUT and its employees had breached <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s9.html">section 9</a> of the RDA.</p>
<p><a href="http://www.theaustralian.com.au/higher-education/offer-to-drop-qut-race-slur-case-for-5000/news-story/2cd2f6b1598d776a49acd14ef2f9bcba">A number of students settled with Prior.</a> Wood, Thwaites and Powell brought an application for Prior’s case to be summarily dismissed. (It should be noted that Prior’s case against QUT, its employees, and student Chris Lee continues despite her case being dismissed against Wood, Thwaites and Powell.)</p>
<h2>Why did Judge Jarrett decide the way he did?</h2>
<p>For Wood and Powell, Judge Jarrett concluded that an ordinary and reasonable member of a group of Aboriginal and Torres Strait Islanders (either students or generally), who had the characteristics of a member of a fair and tolerant society, would not be reasonably likely to find their statements offensive, insulting, humiliating or intimidating. Wood’s statements were against both QUT and racial discrimination generally. Powell’s statements, when read in the context of other comments, were “a poor attempt at humour”. In any event, both Wood’s and Powell’s statements amounted to “mere slights”, thereby not meeting the threshold 18C requires. Finally, neither Wood or Powell made their statements because of Prior’s race, or because of the race of the relevant groups.</p>
<p>Judge Jarrett decided Prior’s claim against Thwaites differently. Thwaites had provided evidence that he could not have posted the comments Prior alleged. Despite having opportunity to do so, Prior provided no evidence contradicting Thwaite’s evidence. Hence, Judge Jarrett concluded Prior could not sustain a case against Thwaites.</p>
<h2>Why did this case generate controversy?</h2>
<p>18C’s supporters point to decisions like this one to say that the system works: a weak claim was dismissed at an early stage. However, this case in fact highlights significant problems with 18C.</p>
<p>First, the <a href="http://www.steynonline.com/7588/free-speech-does-not-include-legal-bills">process itself is the punishment</a>. A summary dismissal application involves the filing of pleadings, affidavits and submissions, and appearing in court. There are significant costs in time, money and stress. A dispute that arose in May 2013 has taken until November 2016 to resolve. Tony Morris QC and Michael Henry <a href="http://www.theaustralian.com.au/news/nation/a-black-and-white-issue-from-both-sides-of-the-fence/news-story/abe946f4aae908b6ec621bdadcf3999b">have acted pro bono</a> for Wood, Thwaites and Powell. But most people are not so fortunate.</p>
<p>In applications like these, legal fees frequently exceed A$10,000, and often go much higher. Most people simply cannot afford to defend themselves, <a href="http://www.theaustralian.com.au/opinion/there-will-never-be-winners-under-section-18c-as-it-stands/news-story/1bacb30956b99217e34116f222196ff2?login=1">and legal aid is unavailable</a>. Hence, it is unsurprising that other QUT students <a href="http://www.theaustralian.com.au/higher-education/offer-to-drop-qut-race-slur-case-for-5000/news-story/2cd2f6b1598d776a49acd14ef2f9bcba">settled their cases with Prior for A$5,000</a>, even though they probably could have successfully defended themselves.</p>
<p>In addition to <a href="http://www.theaustralian.com.au/news/nation/qut-computer-lab-racism-case-thrown-out-by-federal-circuit-court/news-story/5132ee2ebdc6a6366f5bfcd4e4dad013">the costs in time and stress</a>, and despite being “cleared”, the QUT students’ reputations have suffered enormously. The stain of being an alleged racist will be hard to remove. <a href="http://www.theaustralian.com.au/higher-education/section-18c-teaching-cases-can-end-dreams/news-story/dee28734e8ead0efd89243ed4e471caf">Thwaites has abandoned becoming a school teacher</a> because parents or students may Google his name and find he was accused of racism.</p>
<p>Second, the AHRC’s conduct in this case has been disgraceful. Judge Jarrett’s dismissal of this case raises the question of why the AHRC did not initially reject Prior’s complaints against the students. That the AHRC proceeded to conciliation may have given Prior false hope that her case against them had merit. <a href="http://www.theaustralian.com.au/opinion/columnists/nick-cater/tim-soutphommasanes-grievance-industry-sees-bigots-everywhere/news-story/bfd5162bff06cf8dd86bc06059ff1e80">Nick Cater notes</a> that, from 2001 to 2005, the AHRC rejected almost 30% of complaints. He also writes that under its most recent Presidents, Catherine Branson and Gillian Triggs, less than 5% have been rejected. The AHRC must exercise better judgement. </p>
<p>Further, it is astounding that <a href="http://www.theaustralian.com.au/higher-education/qut-students-demand-apology-from-hurman-rights-commission-in-race-case/news-story/6afd0c478acd990050a663e7cd746c0f">the AHRC left it to QUT</a> to contact students about the conciliation conference. The AHRC must contact each respondent directly. In defending its actions, the AHRC has stated that in such matters it <a href="http://www.brisbanetimes.com.au/queensland/qut-students-claim-human-rights-discrimination-20160429-goit14.html">“sometimes” leaves it to organisations to contact members who are respondents</a>, a practice <a href="http://www.theaustralian.com.au/national-affairs/indigenous/watchdog-kept-18c-respondent-in-the-dark-about-qut-complaint/news-story/b5aa4706ba62548bd20353bd1682f31b">Triggs has confirmed</a>. However, even if only done “sometimes”, the AHRC violates both fundamental principles of procedural fairness and what <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/s46pj.html">its own governing statute requires</a>. Indeed, that the Prior case does not appear to be an isolated instance of AHRC misconduct is deeply disturbing. Unsurprisingly, Thwaites and Powell <a href="http://www.theaustralian.com.au/higher-education/qut-students-demand-apology-from-hurman-rights-commission-in-race-case/news-story/6afd0c478acd990050a663e7cd746c0f">have lodged complaints</a> about this issue.</p>
<p>Unfortunately, until 18C is amended, repealed, <a href="https://theconversation.com/section-18c-is-too-broad-and-too-vague-and-should-be-repealed-64482">or struck down</a>, cases like this will arise in the future.</p><img src="https://counter.theconversation.com/content/68235/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Forrester receives an Australian Postgraduate Award.</span></em></p><p class="fine-print"><em><span>Auugusto Zimmerman is senior Vice President of the Liberal Party's Fremantle Division. He is also a member of the Law Reform Commission of Western Australia.</span></em></p><p class="fine-print"><em><span>Lorraine Finlay is affiliated with the Liberal Party of Australia, being a member of the WA Division.</span></em></p>The QUT students case was a litmus case for 18C- and it highlighted its serious flaws.Joshua Forrester, PhD Candidate in Law, Murdoch UniversityAugusto Zimmermann, Director of Postgraduate Research and Senior Lecturer in Law, Murdoch UniversityLorraine Finlay, Lecturer in Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/682462016-11-04T11:49:01Z2016-11-04T11:49:01Z18C case against students dismissed but conservatives’ push for change continues<p>Late on Friday the long-awaited decision came in a key test of the much- debated section 18C of the Racial Discrimination Act.</p>
<p>A federal circuit court judge killed a complaint from a Queensland University of Technology employee against students who posted allegedly offensive comments after she ejected them from a computer lab reserved for Indigenous people.</p>
<p>Those inside and outside the Coalition agitating for the section to be rewritten or removed have had laser-like focus on this case. If it had gone the other way, that would have much strengthened their argument. But the decision has not deterred but actually energised campaigners such as Eric Abetz, as they point to how the students have suffered through the drawn out process.</p>
<p>When prime minister, Tony Abbott really wanted to gut 18C, but he was forced to back off, after a massive backlash from ethnic communities.</p>
<p>Malcolm Turnbull hasn’t wanted to touch the section, repeatedly saying the government has “no plans” to do so. But he’s found himself having to respond to the mounting push for change within his own ranks and from the powerful News Corp. Turnbull on Friday again flagged he favours referring 18C to a parliamentary inquiry.</p>
<p>Whether or not he’s ultimately forced into proposing a rewrite, the issue is unhelpful for a prime minister generally beset by troubles (although it might be a useful quid pro quo with crossbencher David Leyonhjelm in negotiations on the industrial legislation).</p>
<p>18C makes it unlawful to “offend, insult, humiliate or intimidate” because of “race, colour or national or ethnic origin”. A defence of fair comment is provided in 18D. Over many years the section received little attention until the finding against News Corp columnist Andrew Bolt spurred the Coalition, then in opposition, to take a stand.</p>
<p>After Abbott’s retreat, conservative Liberals simply regrouped. They see this as a core “free speech” fight. South Australian senator Cory Bernardi has rounded up almost all the Coalition senators to back a proposed private member’s bill to remove offend and insult.</p>
<p>Events and ineptness by the Human Rights Commission, which deals with complaints under 18C, have given grist to the critics.</p>
<p>Apart from the case of the students, there is the furore around Bill Leak’s controversial cartoon in the Australian, depicting an Aboriginal father, holding a beer can, being told by a policeman, “You’ll have to sit down and talk to your son about personal responsibility”, and replying “Yeah righto what’s his name then?”</p>
<p>The Leak cartoon is now before the Commission after a complaint from a Melissa Dinnison. </p>
<p>The attention on a cartoon in a major newspaper gives the 18C issue a justified “free speech” profile.</p>
<p>Given 18D, one would think – and certainly hope – the complaint would be thrown out. People could hardly, for example, stand up for the cartooning at Charlie Hebdo while suggesting Leak should be constrained. If the complaint against Leak were upheld, the push for change would be unstoppable.</p>
<p>While the conservatives are vocal on 18C, the Liberals who support the present law have been very quiet, probably feeling they’re swimming against what has been a growing tide.</p>
<p>But on Friday backbencher Julian Leeser, from NSW, launched a strong defence of the section, in a speech to the Chinese Australian Services Society. Leeser also put forward proposals on how its application could be improved.</p>
<p>He invoked the Liberals’ longest serving prime minister, saying Robert Menzies “recognised both the need for free speech and the protection of minorities as part of the liberal tradition”.</p>
<p>Leeser also pointed out that the particular words critics want removed are commonplace in laws. “Having undertaken a cursory and incomplete search I have come across more than 40 sections in 25 Commonwealth laws alone which use the terms ‘offend’, ‘offensive’, ‘insult’ or ‘insulting’.”</p>
<p>He said: “I support such legislation [as 18C] because the sweep of human history has shown the evils of racist violence and what ends with racist violence always starts with racist speech.” And, he observed, the prohibitions in 18C were limited to offence or insult “at the higher end of the scale”.</p>
<p>The problem was not with 18C but with the processes for handling complaints by the Human Right Commission, Leeser argued.</p>
<p>He proposes the Commission’s act be amended “so that on receiving a complaint the Commission must initially determine whether the complaint has little prospect of success”. In such a case the complaint would be terminated. A judge could be appointed as a part-time judicial member of the Commission to deal with initial complaints.</p>
<p>Leeser’s proposals are sensible. Such a compromise would save opening a divisive argument that would embroil the government in renewed conflicts with ethnic communities. But the Liberal conservatives are not much into compromise.</p>
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Late on Friday the long-awaited decision came in a key test of the much- debated section 18C of the Racial Discrimination Act. A federal circuit court judge killed a complaint from a Queensland University…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.