Should it be legal to insult and offend people due to their race?

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Racism art on hands

Many hailed Malcolm Turnbull as progressive when he took over as Liberal party leader in September last year.

But over recent days, the Australian Prime Minister has shown that his views aren’t that different from those of his predecessor, Tony Abbott, when it comes to laws that protect the disenfranchised and marginalised.

Mr Turnbull announced on Sunday that asylum seekers who arrive by boat will never be allowed to enter the country, under new legislation set to be introduced by immigration minister Peter Dutton.

The lifetime bans would retroactively apply to all adults that have arrived in Australia since July 19 2013, conveniently including all detainees currently held at Nauru and Manus Island detention centres.

The push for an inquiry

Last Friday, the PM announced the government would consider a parliamentary inquiry into the debate over changing section 18C of the Racial Discrimination Act, despite having previously ruled out making any amendments.

Liberal senator Dean Smith “has recommended that the issue be considered by a parliamentary committee,” Mr Turnbull told Radio 3AW, going on to describe the debate as a “legitimate area of discussion.”

Along with senator Smith, several Coalition MPs have welcomed the PM’s comments, including Tony Abbott, Tim Wilson and Eric Abetz – all of whom have been pushing for amendments to the Act.

The bone of contention

Section 18C makes it unlawful to commit an act that is likely to “offend, insult, humiliate or intimidate another person or a group of people” based on their “race, colour or national or ethnic origin.”

As the prime minister pointed out on Friday, the key question is whether to amend the section so it no longer contains the words ‘offend’ or ‘insult.’

In late August, Liberal senator Cory Bernardi tabled a private member’s Bill to remove the disputed words from the Act, as he claims they impede freedom of speech in Australia.

The Bill was co-signed by all Coalition backbench senators – except senator Jane Hume – as well as by seven crossbenchers, including Liberal Democrat David Leyonhjelm, Derryn Hinch and all four One Nation senators.

The first time around

In 2013, then Opposition leader Tony Abbott promised to amend section 18C by removing the words ‘offend’, ‘insult’ and ‘humiliate.’ Prior to that in August 2012, he suggested repealing the section altogether.

Controversy surrounding the law had been sparked in 2011, when a federal court judge found that conservative News Corp columnist, Andrew Bolt, had breached the Act.

Bolt had written two articles – headlined “It’s so hip to be black” and “White fellas in the black” – that implied light-skinned people who identified as Aboriginal did so for personal gain.

In March 2014, Australian attorney-general George Brandis said he’d be introducing an amendment that ensured the Bolt case would never happen again. He remarked at the time that people “have a right to be bigots.”

But in August that year, Tony Abbott abandoned the planned changes amid a huge national and international backlash, saying they were a “needless complication” to the government’s relationship with the Australian Muslim community.

The Act and how it’s applied

Section 18C of the Racial Discrimination Act was brought in by the Keating government in 1995, in response to recommendations made by a number of inquiries including the 1991 Royal Commission into Aboriginal Deaths in Custody.

The inquires found that racial vilification causes psychological harm to its targets, and can reinforce other forms of discrimination. It found that even behaviour that the majority views as trivial can cause harm, and encourage more serious acts of harassment.

Racial vilification complaints under the Act can be lodged with the Australian Human Rights Commission (AHRC). These are then investigated, with either a conciliation process being initiated or the complaint being dismissed.

If the matter is not resolved, it can be taken to court, but fewer than five percent of complaints make it that far. The vast majority are dismissed.

18D: the overlooked section of the act

But as the race hate debate continues, the mainstream media often fails to recognise the existence of section 18D.

That section provides multiple exceptions to what is actually prohibited under section 18C and, in the eyes of many, removes any real need to amend the act.

Section 18D provides a long list of areas where section 18C does not apply, including performances, publications and, significantly, accurate reports “of any event or matter of public interest.”

In Bolt’s case, the federal court found that his articles were not written in good faith and contained a number of factual errors.

Cases before the commission

The current debate over the amendments to the Act has been “revived particularly in the context of a couple of cases,” as the PM put it.

There’s the case against three Queensland University of Technology students who posted allegedly racist comments on Facebook, after being asked to leave the university’s Indigenous-only computer lab in May 2013.

Cindy Prior, a university staff member, is seeking $250,000 in damages in the case that’s still before the AHRC.

And then there’s the high profile case brought against The Australian cartoonist, Bill Leak, over his overtly racist cartoon depicting Aboriginal men as not being able to remember the names of their own children.

These cases have prompted Independent senator Nick Xenophon to state he might support changes to the Racial Discrimination Act.

Mr Xenophon had previously said his party opposes any changes, which meant an amendment Bill would not have passed through the Senate.

Taking it too far

In what seems an extreme act of reverse racism, senator David Leyonhjelm lodged a complaint with the AHRC against Fairfax journalist Mark Kenny.

Mr Kenny published an article in August this year, criticising the senator over his calls to abolish section 18C of the act, in which he described Leyonhjelm as an “angry white male.”

The prime minister’s motives

Only time will tell whether a parliamentary inquiry into the proposed amendments to the Racial Discrimination Act will actually take place.

But Turnbull’s willingness to reopen the debate over laws that protect marginalised members of the community raises questions as to whether the PM is simply appeasing conservative elements within his own party.

Indeed, Greens senator Nick McKim believes the Coalition’s newly proposed asylum seeker laws are all about garnering the support of the One Nation senators, in a move “which sees our fellow human beings again used as a tool to seek domestic political advantage”.

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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