I know, thought the Prime Minister, I’ll refer the 18C debate off to a bipartisan parliamentary committee, it’ll come back with some sensibly moderate recommendations for a bit of tinkering with the wording of the section, we can push that through Parliament with Labor’s support and, easy win.

So that’s what he did, as opposed to either proposing his own sensibly moderate amendments, or shutting it down once and for all. Because one thing is for sure: apart from the right fringe of politics and the Murdoch press, nobody cares.

The Parliamentary Joint Committee on Human Rights, chaired by Liberal backbencher Ian Goodenough, after 418 submissions, 10,590 form letters and nine public hearings in all capital cities, has produced a 189-page report re-gifting Malcolm his own hospital pass back to him.

Still, we can be assured that the Freedom Marchers will not rest, with many more a diatribe to be written in defence of Bill Leak’s inalienable human right to tell the dark truth in his admittedly hilarious style; not to mention the tireless campaign for vindication of Andrew Bolt’s courageous exposure of indigenous advantage.

Much of this crap is explicated in the committee’s report, for the benefit of those few of us who don’t subscribe to The Australian and aren’t on the twitters.

In fairness, the other side of the debate is also well explored in the report. It’s apparent that the vast majority of the submissions that weren’t written in crayon were either supportive of leaving 18C as it is or amending it only mildly to clarify its intent.

The committee was clearly swayed by this preponderance of sensible argument. For example: “The committee was deeply concerned to hear extensive evidence about the range and extent of daily experiences of racism in Australian society.”

And this:

“The committee is cognisant of the evidence presented to it that even changes that could improve understanding of the existing law risk being taken as an indication that racism is acceptable to Parliament. In canvassing possible amendments to Part IIA, the committee does not intend to signal acceptance of any licence for racism in Australia.”

No wonder Cory Bernardi immediately labelled it a “fail”. Which is unfair, because almost nobody will actually read the report so it’s unlikely to do much harm to his cause.

The committee’s actual recommendations are in two categories. On the big question of whether 18C should be repealed or amended, they flubbed it. The reports that the committee recommended no changes to 18C are wrong; it made no recommendations at all. What it presented instead was a shopping list of ideas, which found favour with various committee members, and on none of which were they able to agree.

The options palmed back to the Prime Minister include leaving 18C alone; removing “offend”, “insult” and “humiliate” from the section’s list of effects, which racist speech must have before it’s actionable, and replacing them with “harass” (so the options would just be “harass” or “intimidate”); adding a “truth” defence to 18C claims (that could be fun! I’d enjoy watching Bolt argue that light-skinned Aboriginal people are not really Aboriginal people); and creating new criminal racial vilification offences to plug any serious gaps.

Conspicuously absent from the list of possible outcomes is total repeal of 18C. It appears that no members of the committee, including the five Coalition representatives, ended up thinking that was the right answer.

The rest of the committee’s recommendations relate to the functional handling of 18C complaints by the Human Rights Commission. The President of the HRC, Gillian Triggs, outdid herself in her reaction to this aspect of the report: “… these are suggested solutions to a problem that doesn’t exist …”

The recommendations are numerous, including broadening the HRC’s power and duty to more quickly get rid of complaints that have no merit, giving part of the president’s role to a new judicial member of the commission, and imposing costs consequences on complainants and their lawyers who push ahead with hopeless cases.

Some of the procedural recommendations accord with changes Triggs herself has been proposing for some time. However, she clearly sees it all as a pointless political exercise, which is more likely to result in a pile of extra procedures being added to the HRC’s burden for no material benefit. She went on to say that “we really don’t have a problem with 18C. The Australian public doesn’t really follow it very much, doesn’t really see it as important on the agenda. And we know that it works extremely well.”

Be that as it may, the government has no political choice now but to do at least a bit of tinkering and adopt some of the committee’s procedural recommendations. If nothing else, that will provide some cover for the non-resolution of the big question.

Would swapping insult, offend and humiliate out for “harass” make a difference? In terms of the public perception of 18C’s operation, it would. As the committee correctly noted, the courts have applied a set of meanings to the words in the section, which differ from their commonly used definitions. This arguably undermines confidence in the law’s application, and may inspire stupid claims, which will inevitably fail.

I’m not so sure that “harass” is a better option, given how subjective a term it is, but I do think that a sensible team of legislative drafters could come up with something that resolves the concerns. I also know that that isn’t going to happen, and I maintain that it’s completely unnecessary anyway.

The practical reality is that, regardless of how 18C is or isn’t amended, Andrew Bolt would still have lost his famous case. Bill Leak would still win his, if it hadn’t been dropped. The reason is that the courts will continue to do what they’ve always done with 18C: interpret and apply it in a way which carefully balances the competing considerations of free speech and protection against race-based monstering of vulnerable minorities. They do that because it was and remains the intent and policy underpinning 18C.

The sole useful achievement of the committee is that, by failing to reach consensus on anything other than that 18C should not go away, it has reinforced this truth: normal, thinking and feeling citizens, when confronted by the ugly reality of both malicious and casual racism (as the committee clearly was), can easily appreciate that the careful balancing act, which 18C attempts, must be maintained.

The Prime Minister, as he grapples with the resulting political paradox, would do well to remember that 18C is totemic not just of the ideological wars; it’s also an expression, on our behalf, of the balance we need between freedom and civility. Best leave it alone.

Peter Fray

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