Reports suggest the Abbott government may seek to amend parts of the Racial Discrimination Act, rather than repeal one section, as it had promised.

The prime minister’s election promise to repeal section 18C of the Racial Discrimination Act could be in doubt following comments from the head of the government’s Indigenous Advisory Council, Warren Mundine, that the council was “not happy” about the removal of the section. This means the section may be modified rather than repealed.



Human rights organisations, ethnic groups, think tanks, government agencies and NGOs have all weighed in on the debate, and all seem to agree on two things; freedom of speech is important, but stopping racism and racially motivated attacks is also important.



A person can be considered to have breached the section if their actions are “reasonably likely … to offend, insult, humiliate or intimidate”.

The difference in views lies in how far these organisations believe the state should be able to restrict speech, and has led to some unexpected alliances.



Abbott’s election promise to repeal section 18C came after Andrew Bolt was found to have breached the act for a column he wrote about Indigenous Australians. The column implied light-skinned Indigenous people identified as such for personal gain. A federal court judge found the articles were not written in good faith and contained a series of factual errors.



Bolt and his supporters argue the section should be repealed because it interferes too greatly with speech that could be offensive or insulting.



A human rights commissioner, Tim Wilson, has said the law had the effect of shutting down legitimate public debate about public policy “because someone’s tone could be deemed inappropriate”.



The case for repealing the section has also been stridently put by the attorney general, George Brandis.



“You cannot have a situation in a liberal democracy in which the expression of an opinion is rendered unlawful because somebody else ... finds it offensive or insulting’’, Brandis said in November.



'’The classic liberal democratic rights that in my view are fundamental human rights have been almost pushed to the edge of the debate,’' he said.



But there has been growing opposition to the move from Indigenous, Jewish, Islamic and other groups.

In an open letter to the attorney general in December, 155 groups ranging from Amnesty International, the Australian Manufacturers Workers Union, the Mental Health Association NSW and the NSW Council for Civil Liberties called for the section to be retained because of the uncertainty that repeal would create.



“Community groups are concerned that any repeal of these provisions would produce a situation in which there are no clear limits for racist hate speech in Australia,” it said.



The chief executive of the Australian Council of Social Services, Dr Cassandra Goldie, said when the letter was delivered: “Several high-profile incidents in recent years demonstrate that we still have a long way to go as a community and that laws protecting people from racial vilification are necessary.”



The Executive Council of Australian Jewry also believes the act should remain the same. In its submission to a previous inquiry into anti-discrimination laws, it argued for the unaltered retention of the section, taking into account the prime minister’s comments, and said that “critics of section 18C also do not take proper account of the defences that are available under section 18D.



“To offend or insult a person or group because of their ‘race, colour or national or ethnic origin’ necessarily sends a message that such people, by virtue of who they are, and regardless of how they behave or what they believe, are not members of society in good standing. This cannot but vitiate the sense of belonging of members of the group and their sense of assurance and security as citizens.”



But other views sit somewhere between these positions, and it appears the federal government may now be leaning towards amending the “offend, insult, humiliate or intimidate” wording. The Human Rights Law Centre takes the position that the section should be amended, but should remain essentially intact.



“While Mr Abbott may be right to say that section 18C of the Racial Discrimination Act, which protects against speech which is likely to ‘offend, insult, humiliate or intimidate another person or a group of people’ because of their race, is over broad, he is wrong to call for its repeal,” writes Phil Lynch, the executive director of the centre.



“At a minimum, consistent with Australia’s obligations under the International Covenant on Civil and Political Rights and the Convention on the Elimination of Racial Discrimination, the Racial Discrimination Act should make it unlawful to engage in public speech which is likely to incite race-based hatred, hostility, violence or discrimination.”