18C and free speech: Turnbull in quagmire over law debate

PRIME Minister Malcolm Turnbull is softening his stance against changes to 18C of the Racial Discrimination Act.

The law makes "offensive behaviour because of race, colour or national or ethnic origin", but also stifles free speech, according to critics.

Critics want the terms "offend" and "insult" removed from the law, arguing that the law can be wielded to stop the free expression of ideas.

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It comes after a controversial cartoon by cartoonist Bill Leak ignited a racism debate, after it featured an police officer bringing an boy back to his father, saying "You'll have to sit down and talk to your son about personal responsibility".

The father replies, "Yeah righto, what's his name then?"

All three people are drawn as Aboriginal, with the father holding a beer can.
 

Bill Leak's cartoon, published in The Australian.
Bill Leak's cartoon, published in The Australian.

Mr Turnbull told the ABC on Monday there was "merit" in examining the laws.

"I have sympathy for this argument (that) there is a view that the test, the bar is set too low".

"Prescribing conduct which insults and offends is too much of a restriction on free speech."

It is a shift for the Prime Minister who last year said changing the laws were "not a priority" for his government.

"It's not a priority for us," he said at the time.

"With all due respect to the very arguments surrounding it, it is not going to create an extra job, it's not going to ensure your listeners are going to get to work, or get to school, or get around their business sooner.

"It's not going to build an extra road."
 


In the Racial Discrimination Act, 18D includes exemptions to 18C.

That covers anything said or done in good faith, and anything published in a fair and accurate way.

Mr Turnbull has faced considerable pressure on the topic, not just from his right-leaning colleagues within the Coalition, but also from The Australian newspaper which has run a campaign on the matter.

Crossbench senator David Leyonhjelm has flagged that he may help the government pass its contentious building regulator bill, if it makes changes to 18C.

Former Australian Prime Minister Tony Abbott listens to Australian Prime Minister Malcolm Turnbull address party members at the Coalition Campaign Launch in Sydney, Sunday, June 26, 2016. A federal election will be held in Australia on Saturday July 2. (AAP Image/Lukas Coch) NO ARCHIVING
Former Australian Prime Minister Tony Abbott listens to Australian Prime Minister Malcolm Turnbull address party members at the Coalition Campaign Launch in Sydney, Sunday, June 26, 2016. A federal election will be held in Australia on Saturday July 2. (AAP Image/Lukas Coch) NO ARCHIVING LUKAS COCH

It will be a delicate issue for Mr Turnbull, after Liberal MPs in NSW warned they would go to war against the Prime Minister if the laws were changed.

"There's no NSW people who support this," an unnamed Liberal source told Australian Financial Review.

"This is the most ethnically diverse state.This is not an issue in NSW that people care about."

Former Prime Minister Tony Abbott supported changing the laws, but ultimately backed down in an effort to preserve "national unity".

When the government took the proposed changes to public consultation, Fairfax reported 76% of 4100 submissions opposed the ideas, including ethnic community leaders across the country.

Mr Abbott dumped the laws as a "leadership call", as he described it at the time.

 

WHAT ARE WE FIGHTING OVER, AGAIN?

 

Racial Discrimination Act: 18C

Offensive behaviour because of race, colour or national or ethnic origin


             (1)  It is unlawful for a person to do an act, otherwise than in private, if:

                     (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

                     (b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Note:          Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

             (2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

                     (a)  causes words, sounds, images or writing to be communicated to the public; or

                     (b)  is done in a public place; or

                     (c)  is done in the sight or hearing of people who are in a public place.

 

Racial Discrimination Act18D

Section 18C does not render unlawful anything said or done reasonably and in good faith:

                     (a)  in the performance, exhibition or distribution of an artistic work; or

                     (b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

                     (c)  in making or publishing:

                              (i)  a fair and accurate report of any event or matter of public interest; or

                             (ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.


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