Substantial changes to section 18C of the Racial Discrimination Act and the operation of the Australian Human Rights Commission will be introduced into the Senate this week as Prime Minister Malcolm Turnbull seeks to avoid a big public fight over the law.

Attorney-General George Brandis will introduce the Civil Law and Justice Legislation Amendment Bill into the Senate later this week, which will amend the Racial Discrimination Act and the Australian Human Rights Commission Act to remove the words “offend, insult, humiliate” from section 18C, and replace them with the word “harass”. There will also now be an objective test for whether a “reasonable member of the Australian community” would believe that a person had been harassed under the changes.

The Australian Human Rights Commission will get powers to terminate “unmeritorious complaints” and limit court access for unsuccessful complaints, Turnbull’s press release stated. In his press conference today with Attorney-General George Brandis, the PM also indicated that “unmeritorious complaints” could also be subject to adverse costs order (meaning those who make complaints could be forced to pay the legal costs for those they make the complaint about). It is difficult to know exactly how this would work at this stage in the process because unlike many other legislative changes, the government has not yet released the legislation.

Such changes would often be first heralded with the release of an exposure draft — as the government did for the marriage equality legislation for the plebiscite — but the first we will see of the legislation will be when Brandis introduces the legislation. Legislation is often, but not always, introduced in the House of Representatives by someone representing the minister in that chamber. The decision for Brandis to introduce the legislation is likely less about having the minister responsible introduce it, but to — potentially — speed up its passage. If the government agrees to amendments proposed by the crossbench, then it can sail through the House of Representatives where the government has a majority. Provided no government MPs cross the floor, that is.

In a combative mood at the press conference, Turnbull said he was aware that the changes would have “many critics and opponents” but is seeking to claim that the changes are “strengthening and clarifying the law” by refining how it can be interpreted by courts:

Isn’t it about that laws are clear? Isn’t it better when you’re dealing with freedom of speech and you’re dealing with protecting people from racial vilification that the law is clear and in language people can understand?”

It’s a debate the PM clearly doesn’t want to have. He refused to answer a question from Guardian Australia journalist Paul Karp as to why he would not take this contentious social issue to a plebiscite.

“Are we going to have a plebiscite on 18C? It is a contentious social reform that everyone has a stake in. Why are elites allowed to decide this issue, but same-sex marriage is going to be done by a majoritarian popular vote?” Karp asked.

Thank you for the editorial,” Turnbull responded.

The language being used by the PM to attempt to make it sound like he is actually defending race hate laws comes after several Coalition members in the joint party room meeting raised concern that the changes would be “misunderstood”. Those with significantly multicultural electorates are concerned about losing votes, and Deputy Prime Minister Barnaby Joyce told the party room that the issues people in his electorate talk to him about at the pub are jobs, and the ice epidemic. 18C doesn’t rate.

While those that spoke about concern with aspects of the legislation ultimately agreed to the legislation, it will be a much tougher battle in the Senate for the legislation to pass as is, with Labor and the Greens opposed, the Coalition will need to secure 9 out of 11 of the crossbench in order to pass the legislation. The Nick Xenophon Team has already indicated reservations with the proposal.

One factor to watch will be how the proposed changes are greeted by the biggest lobbyist for the change, News Corp. Today the proposal has been met with glowing approval within the pages of The Australian with one suggesting the legislation could be  known as the Bill Leak law. Turnbull cited the Bill Leak case as part of the motivation for the change, but when asked whether the verdict in the Andrew Bolt case would be different under the changes, Turnbull couldn’t say. 

“That’s a legal question. I don’t want to express a view on that. I’d simply say that we know, we know, that the language of 18C at the moment has lost its credibility. It is widely criticised. It is held up as being an inappropriate restriction on free speech. It has lost the confidence that a law of this kind needs. So recasting it in clearer language makes it stronger. A clearer law is a stronger law.”

News Corp journalists at the press conference joked before the PM arrived that the changes would still be met with hostility in their opinion pages.

Peter Fray

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