A parliamentary inquiry is currently considering the state of free speech in Australia  section 18C of the Racial Discrimination Act, and another on marriage equality will report next week. There are dozens going on all the time — but what do they actually do?

When Labor and crossbench politicians announced yet another parliamentary inquiry into marriage equality in the last sitting week of last year — there have been at least three since 2012, covering the dozens of legislation trying to amend the Marriage Act — it raised some eyebrows in Parliament.

What was the point of yet another inquiry? Wouldn’t it lead to some of the hate speech from anti-LGBTI groups that meant the plebiscite couldn’t go ahead?

Publicly, the argument is that the draft legislation to change the Marriage Act released by the government in the course of Parliament considering the plebiscite had yet to be assessed, and the committee would now be doing that.

[Just what should be said that can’t be said under 18C?]

Labor MP Terri Butler made a point of saying when the committee was announced that the committee had eight positions, with four reserved for government senators. That means, effectively, the government would have a majority on the committee, with Labor and the crossbench left to fight over the remaining four spots. As it has eventuated, the Coalition has dominated the committee, with a chair in David Fawcett who is opposed to same-sex marriage.

But what is not said publicly is that this committee was essentially designed by Labor and the crossbench to send a message to the moderates within the Coalition who want marriage equality. The message being, Parliament is prepared to vote on the government’s designed legislation and, now that the plebiscite is dead, Coalition moderates should be pushing in their own party for a free vote. Leaks from the Coalition party room indicate that this is indeed happening — and is being met with ferocious pushback from more conservative MPs. 

The marriage equality inquiry also serves as a reminder to Libs and Nats: this is your legislation in the form your party was most comfortable with. If the issue is not progressed in this Parliament, it is likely many of the things you want in it — like religious protection — will not be in legislation put forward by other governments. So get on board.

The committee, in that respect, appears to have had some success, with moderate Coalition members expected to now be pushing the issue in the party room. 

In theory, parliamentary committees can achieve a lot for legislation or getting an issue to the forefront of Parliament’s attention. In Parliament in November, Liberal MP John Alexander made the case for why he believes inquiries were important:

“As one of the many avenues of policy development for a government, a parliamentary inquiry is open to both the public and experts to offer evidence and recommendations in the formulation of policy innovation. This is accepted or amended by the relevant department before being put to the cabinet, upon which, at their discretion, it is adopted as the official policy trajectory of a government. Parliamentary inquiries are powerful bodies in the voice that they give to any and all Australians, as well as the embrace of constructive and bipartisan discussion and input.”

It’s true that often committees are used to hear public concerns about a piece of legislation and propose amendments that the government will often adopt.

But often committees are about causing pain for political opponents, or about delaying or diverting issues that are causing your own party troubles.

For example, the inquiry into the Bell Group, another inquiry announced in the last sitting week of last year, is an attempt by Labor and the Greens to draw out from Attorney-General George Brandis information he has been withholding about the case. What did he actually direct then-solicitor general Justin Gleeson to do, and when did he do it? Labor isn’t confident the answers to those questions will be known by the end of the inquiry, but at least it will drag out the topic over summer.

[Why don’t we just have a plebiscite for 18C?]

The government isn’t likely to listen to any recommendations made by the committee. Coalition Senator Ian Macdonald — who is notionally the chair of the Legal and Constitutional Affairs Committee — already said when the committee was established that he and his fellow Coalition senators would be too busy to sit on the committee for these hearings.

One inquiry they will have a lot of time for, however, is the “freedom of speech” (read: just 18C) inquiry. This inquiry had a tight deadline, but it is viewed by the more moderate Liberals as a means of placating the firebrand conservatives so keen on seeing the law changed. As hearings are held the issue will remain in the forefront of news, but the government has bought some time before it has to act on it. For Labor, it allows time to try to get a wider array of views on the issue.

As with many committees on divisive issues, however, expect a majority (i.e. government) report, and then at least one dissenting report from the opposition and crossbench. The government of the day, naturally, will listen to the majority view. The government’s report will likely recommend softer changes to 18C (such as removing the insult and offend clauses), which will give the government the catalyst it needs to say “this issue was thoroughly examined and now we are prepared to move on it”.

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey