The racial discrimination law dividing Australia

The cartoon pictured in context within the newspaper
Image caption Bill Leak's controversial cartoon was published in The Australian earlier this year

Two high-profile cases involving allegations of racism have reignited a row about free speech in Australia, and mobilised the nation's ideological forces, writes Kathy Marks.

The cartoon depicts a beer-swilling Aboriginal man being handed back his errant son by a police officer - and, on being instructed to teach the boy about "personal responsibility", struggling to remember his name.

Drawn by one of Australia's best known cartoonists, Bill Leak, the satirical image caused an uproar when it appeared in The Australian newspaper in August.

Some condemned it as unfairly tarnishing all Aboriginal fathers; others applauded it for highlighting an unpalatable truth. But was it racist, and should it have been banned by law?

These questions are exercising federal politicians as they prepare to hold an inquiry into the Racial Discrimination Act, focusing on a contentious section which outlaws behaviour likely to "offend, insult, humiliate or intimidate" people on the basis of race, colour or ethnic origin.

Freedom of speech?

The section, 18C, is anathema to conservatives, who call it a gag on freedom of speech. They point to the cartoon and another recent case, involving racism allegations against three Queensland University of Technology (QUT) students, as underlining the need for reform.

Defenders of the law, though, who include opposition Labor politicians, ethnic community organisations and the UN special rapporteur on racism, say it has worked well for 20 years, protecting Australians from ethnic minority backgrounds from harassment and intimidation.

They also note that the act - under which discrimination complaints are initially investigated by the Australian Human Rights Commission (AHRC) - operated without controversy until 2011, when the Federal Court ruled it had been breached by a leading right-wing commentator, Andrew Bolt.

Mr Bolt had published articles and blogs in which he accused nine fair-skinned Australians with mixed heritage of playing up their Aboriginality to secure jobs, grants and awards.

The judgement outraged his friends and ideological soulmates, who include former Prime Minister Tony Abbott.

Mr Abbott's government drafted amendments diluting the act in 2014, but backed down following an outcry from community groups - and from MPs in the ruling Liberal Party who represent ethnically diverse urban electorates.

Image copyright Getty Images
Image caption Prime Minister Malcolm Turnbull is facing pressure from conservatives

Those same groups are now mobilising again as battle lines are drawn on an issue which arouses strong opinions and emotions on both sides of the political divide.

While Australia prides itself on its multiculturalism, with more than one in four people born overseas, some are uneasy at what Tim Wilson, a prominent libertarian turned Liberal MP, calls "the direction of the country... its ethno-cultural make-up and whether we're holding to our values and traditions".

The parliamentary inquiry has been ordered by Mr Abbott's successor, Malcolm Turnbull, who only a few months ago ruled out changes to the Racial Discrimination Act.

Once known as a social progressive, Mr Turnbull, who won power in July by the narrowest of margins, is discovering that government requires harsh compromises. Not only is he under pressure from right-wing Liberals, but he has to court the likes of Pauline Hanson's anti-immigration One Nation to get legislation through the Senate.

One of four One Nation senators, Ms Hanson wants 18C repealed, as does David Leyonhjelm, another Senate cross-bencher who espouses libertarian causes.

'Highly exceptional' cases

The push for reform gathered momentum following the cartoon and QUT rows, the latter involving Facebook posts by the three students after they were asked to leave a computer lab reserved for Aboriginal students. One wrote: "I wonder where the white supremacist lab is."

Both affairs prompted complaints to the AHRC by apparently injured parties. In the Bill Leak case, the complaints were subsequently dropped. In the QUT case, the Federal Court dismissed the discrimination claim as having no reasonable chance of success.

On Monday, the UN special rapporteur on racism, Mutuma Ruteere, called for the Racial Discrimination Act to be protected, describing it as a "useful balance" between free speech and protecting minority groups.

Removing it would "open the door to racist and xenophobic hate-speech which has been quite limited thanks to this provision", he said.

Image copyright Getty Images
Image caption Anti-immigration Senator Pauline Hanson wants the law repealed

While there is little likelihood of 18C being repealed, opponents are calling for, at the very least, the words "insult" and "offend" to be removed, maintaining that they "set the bar too low" for a claim to succeed under the act.

Mr Wilson told the BBC that the passions surrounding the topic "feed into a cultural concern about whether we're preserving the best type of society we've been in the past ... based on Western traditions of freedom of religion, freedom of speech and liberal democracy".

He said: "It's about whether the law should be used as a weapon to censor and silence conversations on difficult subjects. The reality is: people use their freedom of speech to say challenging and offensive things all the time, and that's what a free society is."

A recent study found that only 1.8% of complaints end up in a court or tribunal, with the rest dropped, dismissed or conciliated by the AHRC.

The QUT and Leak cases were "highly exceptional", one of the report's authors, Katharine Gelber, from the University of Queensland, told the BBC. She also noted that the following section of the Act, 18D, provides a broad "public interest" defence.

At a time of rising populism globally, including a growing backlash against "political correctness", the 18C debate "hits right at the heart of the political divide", Prof Gelber said.

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