Racial Discrimination Act amendment: Federal Government leaves open possibility of altering proposed changes

Updated

The Federal Government has left open the possibility of changing its proposed amendments to the Racial Discrimination Act, with Attorney-General George Brandis saying he is "very open to other suggestions".

The Government wants to remove key sections of the Act that it says make it illegal to "hurt the feelings of others", while adding new provisions it says will boost protection against racism.

The Opposition and Greens say the changes will give the green light to bigotry in Australia.

But the Government's approach has been welcomed by conservative columnist Andrew Bolt - who was found to have breached the current Act in 2011 - and by the free market think tank the Institute of Public Affairs.

The draft has been released for community consultation for one month.

Senator Brandis, who on Monday defended the amendments by saying people had "a right to be bigots", says the draft "represents the Government's thinking in relation to this matter but ... we are very open to other suggestions".

"I am acutely aware of the importance that in protecting freedom of speech, we don't send the wrong messages. I want as much community engagement as possible," he said.

In Question Time, Prime Minister Tony Abbott emphasised the draft legislation had not been finalised.

He said the Government was "attempting to engage the community in this, as you would expect".

"What we have proposed today is an exposure draft of legislation," he said.

"We will finalise the legislation and bring it into the Parliament in the budget session."

This week is the final week of Parliament sittings before it resumes on May 13 for the Budget, after a six-week break.

The Government wants to repeal four sections of the Act, including 18C, which makes it unlawful for someone to publicly "offend, insult, humiliate or intimidate" a person or a group of people.

"Those three words - offend, insult and humiliate - describe what has sometimes been called hurt feelings," Senator Brandis said.

"It is not, in the Government's view, the role of the State to ban conduct merely because it might hurt the feelings of others."

The Government wants to retain as an offence any action that would "intimidate another person" and create a new clause making it illegal to "vilify another person" on the basis of "race, colour or national or ethnic origin".

"To intimidate a person is to cause them to be fearful," Senator Brandis explained.

"That is an entirely different state of mind, it is an entirely different concept."

Dreyfus says Government narrowing definitions

But his Opposition counterpart, Mark Dreyfus, says the Government has moved to narrow definitions and broaden exceptions.

Under the proposed legislation, "intimidate" is defined as meaning to "cause fear of physical harm" and "vilify" is to "incite hatred".

"This is an extremely narrowly defined protection, an extremely narrowly defined prohibition of racist speech," Mr Dreyfus said.

He has also pointed to a clause in the Government amendments that appears to allow vilification or intimidation if it is "in the course of participating in the public discussion".

"One could drive a truck through that provision," Mr Dreyfus said.

"It is a provision of such breadth that just about anything ... said in the course of a public discussion ... would come within this exception to the prohibition, meaning that what we're left with is something of very little meaning."

But Senator Brandis says the narrow definitions in the changes are deliberate.

"We think inciting hatred is the core concept of vilification," he told Lateline.

"Whenever one is dealing with prohibitions of what people are at liberty to say in a free country, in our view those prohibitions ought to be drawn narrowly rather than widely."

Labor pressed the issue in Question Time, asking the Government whether holocaust deniers would be free to express their views under the Government's proposed changes, whether it knew of any ethnic community groups that supported the measures, and why it was a priority for the Government.

The Prime Minister accused the Opposition of attempting to play "dog-whistle" politics.

"The Leader of the Opposition is choosing to play politics and attempt to try to engage in a bit of dog-whistling on this issue," Mr Abbott said.

Wyatt cautiously welcomes changes

Last week, Liberal backbencher and Indigenous MP Ken Wyatt told the Coalition party room meeting he might cross the floor over the Government's amendments.

He has cautiously welcomed the changes but says he will be consulting widely with his colleagues and constituents.

"It doesn't pass all hurdles," he told the ABC's Capital Hill program of the Government's proposal.

"I think it is a step in the right direction.

"I think the Attorney-General, to his credit, has thought it through, has come back with a proposition that we can consider, and then it'll go through a process eventually where it becomes the legislation that'll be debated in the House."

Section 18C became law in 1995 in response to recommendations from major inquiries, including the Royal Commission into Aboriginal Deaths in Custody.

Its accompanying section, 18D, is seen by some as a protection for free speech, in that it allows comments or actions made in good faith and "fair comment" if it is an "expression of a genuine belief held by the person making the comment".

The Abbott Government promised to change the laws during the election campaign.

In 2011, conservative media figure Andrew Bolt was found to have breached the Act over two articles he wrote in 2009 about light-skinned people who identified as Aboriginal.

A Federal Court judge found Bolt's articles would have offended a reasonable member of the Aboriginal community, that he had not written them in good faith and they contained factual errors.

The News Corp columnist has welcomed the Government's legislation.

"There should be no conflict between saying no to racism and freely speaking our mind, and this proposed change recognises that in large part," Bolt told the ABC in a statement.

"I've always wanted Australians to have the freedom to oppose all forms of racism, including the new retribalisation of this country, and always trusted Australians to use free speech - the safest of all sanctions - to put real racists out of business.

"This is not a debate about who is kinder but which course is wiser."

The Institute of Public Affairs has described the Government's move as a "victory for freedom of speech".

"While a full repeal of 18C would have been preferable, the Government's proposal goes 95 per cent of the way towards ensuring what happened to Andrew Bolt won't happen again," the IPA's Simon Breheny said.

Topics: government-and-politics, federal-government, federal-parliament, australia, nt

First posted