Amending the Racial Discrimination Act: Making bigotry great again!

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(Meme via Roxy Moore‏ / @RoxyAmnestyOz)

The unpopular proposed changes to the Racial Discrimination Act are likely to fail, just like the Turnbull Government, writes Dr Martin Hirst.

ON MY Senate count, the Government’s push to amend section 18C of the Racial Discrimination Act is likely to fail narrowly.

Labor, the Greens and Jacquie Lambie have all signalled they will strongly oppose the changes, and the Nick Xenephon team is also likely to vote against replacing the words "offend" and "insult" with ‘harrass’.

This means 39 “No” votes against the Coalition’s 36 “Yes” votes (29 LNP, 4 PHON, Bernardi, Hinch, and Leyonhjelm).

This would be a humbling, but not unexpected, defeat for the once "liberal" Malcolm Turnbull.

Turnbull has sold his soul to the Coalition’s rightwing nutjob element in order to cement his place in the history books as a one-time prime minister of Australia.

But that fact will be all that history records of Turnbull’s time in the Lodge. Posterity might also acknowledge that "Truffles" Turnbull had another, more apt nickname, "Fizza".

So far, his whole administration has been a fizzer. Its achievements have all been negative: stopping progress, cutting welfare, slashing services and public sector jobs, blocking a conscience vote on same-sex marriage.

It is an ideological mission of destruction, not an exercise in nation-building.

The unseemly push to make bigotry acceptable again is consistent with the themes of Turnbull’s leadership — caving in to a vocal and unrepresentative minority in his own ranks and to pressure from the more unhinged elements of the Murdoch commentariat.

To dress up the “right to be a bigot” in the noble language of freedom of speech is typical of the deceit and doublespeak at the heart of the Turnbull regime.

It has been a drama in three acts, the last of which will play out next week when the Senate votes, but Act Two occurred late this week in Canberra, when the legislation was rushed through a truncated Senate committee process, where due process gave way to crude partisan censorship.

A delegation from the Aboriginal Legal Service, which was in Canberra on other business, was prevented from giving an oral submission to the committee, the committee chair, Liberal Senator Ian MacDonald invoked the ghost of Bill Leak to support the changes and he was also rude to Human Rights Commission president, Gillian Triggs.

A farce, wrapped up in a charade, stuffed inside a hoodwink

The Senate Legislation Committee was given four days (including a weekend) to hear submissions, deliberate and make its report on the government’s hastily drawn-up Human Rights Legislation Amendment Bill 2017.

The deputy chair of the, ALP Senator (and IA contributor) Louise Pratt says there is no public support for changing Section 18 of the Racial Discrimination Act from ethnic and Indigenous community groups.

Senator Pratt told IA that while the short time frame for consultation was “clearly inadequate” there was “no support” from any “reputable” Aboriginal or ethnic community group for the proposed changes.

Senator Pratt also said that Attorney-General George Brandis was misleading when he said publicly that the President of the Human Rights Commission, Gillian Triggs supported the changes.

In their oral submissions to Friday’s public hearings, both Professor Triggs and the Race Discrimination Commissioner, Tim Soutphommasane said they were only offering their support for the process changes, not for the Government’s proposal to amend Section 18c to remove the current wording of "insult" and "offend".

The Senate will debate changes to racial discrimination and human rights law this week, with the potential to make it easier for racists to claim freedom of speech as a defence when they insult, offend or humiliate their targets.

However, Senator Pratt told IA that the legislation committee heard “clear evidence” from submitters that there is no support for the changes “from groups representing those who face discrimination on a daily basis”.

Attorney-General George Brandis introduced the changes in the Senate last week and debate will resume on Tuesday.

What do the changes mean?

The changes may seem minor – in that only a few words will change – but the effect of the whole is greater than the sum of the parts.

The two key impacts will be as follows:

  1. The words "humiliate", "offend" and "insult" will be removed from Section 18c of the Racial Discrimination Act, while the word "intimidate" will stay and the word "harass" will be added.
  2. The test for whether or not the words or actions complained about will be shifted from the perspective of the complainant to a "reasonable" member of the Australian community.

The first change is significant in that it gives those who would like to be more bigoted in their public statements a great deal more wriggle room.

Infamous racist opinionator Andrew Bolt has already started redefining harassment by arguing that it would have to be something done more than one – maybe five times – to constitute harassing behaviour. Bolt also wants to be able to say “mean and hurtful” things and claims that the current legislation prevents him from saying what he really thinks about “race-based policies used to divide us”.

Why is Turnbull now pushing the changes?

This week, Turnbull tied himself in semantic knots with his attempts to deflect serious media questions about why he was now pushing the 18C changes when he was on the record as saying it wouldn’t happen.

At a media conference with Brandis, all the PM could do was offer this weak excuse for his change of heart:

JOURNALIST: Before the election, when voters here asked you on many occasions about this change, you said it wasn't a priority, it wasn't a pressing issue, your Government had much more important things to deal with. The only thing that seems to have changed is the pressure from the right wing of your party. What's changed?

PM TURNBULL: Well, the QUT case, the Leak case, the establishment of the Human Rights Committee and their report. They're the changes, the events, that have occurred since the election.

As you said, at the election, we said we didn't have plans to make any changes. That was absolutely true.

Turnbull has abandoned all pretence of being a principled man in the face of pressure from his right flank.

The real reasons that these changes have been proposed – there is no guarantee they’ll get through the Senate – are to be found in a belligerent, persistent and highly unethical campaign by the Murdoch media in response to the 2011 conviction of Andrew Bolt under the provisions of section 18c in the well-known Eatock v Bolt case in the Federal Court.

Now we can add to that the NewsCorpse campaign to martyr recently deceased cartoonist Bill Leak to the list.

Leak’s death from a heart attack has become a cause celebre for the Murdoch goon squad. Like the total hypocrites they are, many Murdoch calumnists [insert names of usual suspects here] have attacked Leak’s critics for taking advantage of his death while…taking advantage of his death to advance their own crusade.

In the now infamous Bolt case, the court’s finding was that Bolt had breached s18c and also that he had made several factual blunders in his story, thereby nullifying any defence of fair comment.

As Crikey reported at the time, Bolt’s humiliation would signal an all-out assault on the Racial Discrimination Act and the Human Rights Commission by NewsCorpse:

'... the Herald Sun and other News Limited outlets will almost certainly launch a full-scale assault on the decision on free speech grounds. Yesterday, covering his left flank, Bolt met with leading unionist Paul Howes, who has previously delivered a speech to the conservative Institute for Public Affairs branding the trial an Orwellian disgrace.'

And so it came to pass.

Indeed, NewsCorpse has agitated and editorialised against the RDA and the Commission continuously for the last six years. Murdoch newspapers have personally attacked Gillian Triggs and Tim Soutphammasane repeatedly and viciously; it has called for the HRC to be shutdown or so severely curtailed that it might as well be; and, it has harassed complainants in section 18C cases relentlessly.

It is important to bear this in mind when the Prime Minister claims that Section 18C has been “widely criticised”, as he did in a press conference last week.

If we actually look at where the criticism of 18C has come from, it is clear that 95 per cent of it has been instigated, originated and amplified in the Murdoch press, particularly in The Australian.

(Screenshot Google.com.au)

Thousands of hours of editorial time, hundreds of thousands of dollars in legal expenses – and probably the same amount in staff costs – have been expended in pursuit of this legislative change.

And, in fact, the pressure for this change is actually contrary to public opinion, as measured by recent polling.

The other source of pressure on Turnbull to make this change has been the conservative wing of his own party and the need for the coalition to curry favour with the more extreme independents and One Nation to ensure its political survival in the Senate.

The bill introduced by George Brandis is the Government’s response to two private members’ bills introduced last year and the list of signatories to those pieces of legislation is a veritable "Who’s Who?" of Australia’s leading racist politicians.

The Racial Discrimination Amendment Bill 2016 was introduced in August last year by the following list of notables:

Senator Cory Bernardi, the Hon. Eric Abetz, Christopher Back, Brian Burston, David Bushby, the now dispatched Rod Culleton, Senators Bob Day, Jonathon Duniam, David Fawcett, Pauline Hanson, Derryn Hinch, David Leyonhjelm, the Hon. Ian Macdonald, Bridget McKenzie, Barry O'Sullivan, Senator for the IPA James Paterson, Linda Reynolds, PHON’s Malcolm “Tinfoil” Roberts, Dean Smith and John Williams.

In their jointly-signed Explanatory Memorandum, this bunch of bigoted bananas explicitly sought greater freedom to be insulting and offensive to people on the basis of racial or ethnic characteristics.

Removing the words 'offend' and 'insult' from section 18C, will align the ordinary meaning of the words used in the section with the way in which those words have been interpreted in practice by the courts. As a result, the law will be clearer on its face and the intention of the Parliament will be reflected in the proper drafting of the provision.

It is never appropriate to prohibit speech that is merely offensive or insulting.

But why is offensive and insulting speech so important to these people? This has never been explained, they can’t explain it in any way that makes sense to normal people.

The second bill introduced in September 2016; the Racial Discrimination Law Amendment (Free Speech) Bill 2016.

The Explanatory Memorandum to this bill is the most explicit in terms of laying out the real motives of the bigot banana brigade.

It was drafted by Senators David Leyonhjelm and Brian Burston, with the help of Senators Culleton, Day, Hanson, Hinch and Roberts.

The provisions of Part IIA discourage public discussion on matters of public importance. This is particularly the case in light of the court’s interpretation of the provisions to date, and the inherent uncertainty as to how courts will interpret them in the future.

For instance, articles by Andrew Bolt discussing affirmative action policies were ruled unlawful under Part IIA. The articles may well have been flawed and insensitive, but they were not a manifestation of racial hatred, and the topic they addressed is a matter of public importance. Outlawing publication of the articles discourages further public discussion of affirmative action policies, including discussion carried out with greater sensitivity and less error.

The repeal of the provisions of Part IIA will remove this discouragement of public discussion on matters of public importance, such as affirmative action policies.

Hhhmm, really? What matters of public importance are we preventing Bolt et al from discussing? Nobody has yet answered this question, either. Perhaps because they know the whole "free speech" excuse is just that — a furphy.

It is the hard core of racist conservatives on his right, and his core constituency of NewsCorpse calumnists, that Turnbull is appeasing with his changes to the RDA.

As Fotis Kapetopolous, former editor of the local Greek community newspaper, Neos Kosmos pointed out in a recent opinion piece, Turnbull is betraying his liberal values through this action:

'The proposed change to 18C is evidence of the Prime Minister’s yield to the right, just as he has done in regard to climate change, same sex marriage, and border security. Has he no core values as a liberal? No wonder his popularity has plummeted since he became PM.'

Most opinion polls have shown Australians are reluctant to abandon the RDA’s protections against offensive and insulting racist speech.

Even a January 2017 poll, conducted for right-wing think tank the Institute of Public Affairs, failed to produce a majority in favour of repealing or changing section 18C.

This is reassuring, coming, as it does, after the years of campaigning by the IPA and the Murdoch media to make bigotry great again.

It’s also reassuring to note that a Parliamentary committee that Turnbull tasked with making it easier to change the RDA by coming up with suitable excuses, failed to provide any.

It seems that as a nation we are bigger, more mature and more tolerant than half the Senators we’ve elected, and all of the commentators employed by NewsCorpse.

That gives me hope.

You can read more by IA's political editor Dr Martin Hirst on his blog Ethical Martini and follow him on Twitter @ethicalmartini.

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