George Brandis is a very serious man, befitting his status as the nation’s first law officer.
So it was a surprise when he reduced senators to fits of laughter, derisory as they were from the Labor side, during a sermon on free speech this week.
Brandis, the Commonwealth’s attorney-general, is endeavouring to draft a change to a controversial section of the Racial Discrimination Act that will satisfy proponents of free speech and those, especially minorities, who want legal protection against being offended, insulted, humiliated or intimidated because of their race.
The issue came to a head this week when a number of coalition MPs voiced their concerns at a joint meeting of government parties in Canberra.
Ken Wyatt, the first indigenous member of the lower house, warned he might cross the floor of parliament and vote against any change to Section 18C of the act.
The MP used his own experience of racial vilification to make the point that minorities needed the legal protection the section provides them.
It’s a view supported by others in the coalition, including Philip Ruddock – a former attorney-general from the Howard years.
Just as steadfast are the advocates of free speech who, like Brandis, believe it should be legal to offend or insult people – even if they don’t agree with the insults.
A day after Wyatt and others raised their concerns, the attorney-general was telling the Senate that “reasonable people, decent people” can disagree in good faith and still be reasonable people.
“All voices in the coalition parties are voices of reason,” he said, prompting howls of laughter from Labor and Greens senators and wry smiles from his own colleagues.
Fingers were pointed at outspoken Liberal senator Cory Bernardi, well-known for his forthright views on contentious social issues such as gay marriage.
Bernardi lapped it up, baiting his opponents with taunts of “bring it on”.
“Cory is on the way back,” Labor senator Doug Cameron said of Bernardi’s self-inflicted banishment to the backbench after he linked bestiality to homosexuality in an infamous speech to parliament.
After order was restored, Brandis pointedly told opposition senators a view existed that only one point of view or one set of opinions ought to be allowed to be expressed on sensitive social issues such as racism.
“And, if you dissent from that set of opinions, there is something wrong with you – that you are a bad person or a wicked person or a racist.”
Brandis is clearly frustrated by those railing against his plan to change the Racial Discrimination Act and has been censorious, especially, about their argument the law protects minorities against racial vilification.
“One of the problems with this debate is that people make commentary on laws which they have not read,” he said, reminding them that there is no Commonwealth law that proscribes racial vilification.
Outlawing that behaviour has been left to the states.
What Brandis wants from his changes is strong protections for freedom of speech and appropriate laws to protect people and groups from racial vilification.
The two are not inconsistent objectives, he insists.
Which means we’re heading for a compromise that goes some way to appeasing Wyatt, other coalition MPs and indigenous leaders such as Warren Mundine, Tony Abbott’s key adviser.
There are signs Brandis will dilute, rather than repeal, section 18C of the act, making only humiliation an offence.
It won’t be unlawful to offend, insult or even intimidate anyone because of their race.
That’s unlikely to be enough for conservative commentators such as Andrew Bolt who ran foul of section 18C when he suggested it was fashionable for “fair-skinned people” of diverse ancestry to choose Aboriginal racial identity for the purposes of political and career clout.
Nor is it likely to satisfy the Human Rights Commission which sees section 18C as filling an important gap in legal protections for those affected by racial hatred and vilification.
It reported a near 60 per cent increase in complaints under section 18C during 2012-2013.
Fifty-three per cent of racial vilification complaints were resolved at conciliation; four per cent were terminated or declined for being trivial, misconceived or lacking in substance while less than three per cent proceeded to court.
The commission argues the courts have consistently interpreted sections 18C and 18D – which ensures artistic works, scientific debate and fair comment on matters of public interest are exempt from 18C – as maintaining a balance between freedom of speech and freedom from racial vilification.
The commission itself is torn over any change to section 18C.
Race discrimination commissioner Tim Soutphommasane argues the real harm of racial vilification lies in the damage it causes to a victim’s individual freedom and to our cohesion as a multicultural society.
Tim Wilson, appointed by Brandis to be “freedom” commissioner, believes section 18C should be repealed altogether.
He argues it is in conflict with other human rights and therefore does not meet the threshold for restricting speech.
Brandis has indicated we’ll see his legislation mid-year, just in time for a more compliant Senate to pass judgment.