March 28, 2014

Tim Soutphommasane

Political philosopher and regular columnist

When I commenced my term as Race Discrimination Commissioner last year, I never imagined I would be asked to comment on whether Australians enjoyed ”the right to be bigots”. It is a measure of how dangerous some of the debate about the Racial Discrimination Act has become.

As we consider the Federal Government’s exposure draft of changes to racial vilification laws, there should be one question above all that should guide our deliberation. What kind of society do we want Australia to be?

Our laws are bound with our values. They express how we aspire to conduct our lives together. Like the many communities that have spoken this week, I have very serious concerns about proposed changes to the Racial Discrimination Act. If enacted, they would severely weaken existing legal protections against racial vilification. They would embolden a minority with bigoted views to amplify their prejudice.

Such developments would come at a high price. Unfortunately, the human cost of racism isn’t always appreciated in the debate about Section 18C. Too often, the matter has been reduced to a discussion about legal interpretation or philosophical principle. But we shouldn’t be talking about things in the abstract.

Racism hurts its victims in real ways. As one Aboriginal community leader has said, ”racism makes our people sick”. Those exposed to racist abuse will testify that it can inflict mental and physical harm. It can wound your very dignity as a person. It is something that diminishes people’s freedom and their ability to participate in society.

As it currently stands, the law allows people to hold others accountable for acts that offend, insult, humiliate or intimidate on the grounds of race. This doesn’t mean that anything offensive or insulting is against the law. The law only covers acts with a clear racial basis. It doesn’t extend to trivial slights.

For someone, however, who has been abused by co-workers, customers or strangers in public as a “filthy coon”, ”stupid boong”, ”little gook”, ”shifty Jew”,  ”sand-nigger” or ”terrorist”, the current law means that you have some means for seeking redress. The legal remedies are civil in nature. When complaints are made to the Australian Human Rights Commission, an attempt is made to conciliate the matter. A majority are resolved, frequently with an apology. Very few end up in court – a mere 5 cases of 192 racial vilification complaints received in 2012-13.

The proposals put forward in this week’s exposure draft would involve a dramatic narrowing of what could be counted as unlawful racial abuse. Only those things that ”vilify” or ”intimidate” another person would fall foul of the Act.

On the face of it, this mightn’t sound like a radical departure. But ”vilify” is defined as the incitement of racial hatred, as opposed to its more ordinary meaning of speech that degrades or slanders. This means that the law would no longer be concerned with the harm that racist behaviour inflicts on its target. Rather, the consideration would be the effect of behaviour on a third party or public audience. The definition of ”intimidate”, meanwhile, is confined only to situations where someone apprehends physical harm; non-physical intimidation wouldn’t be covered.

Let’s consider the practical effects of what such a change would involve. Very simply, there would be significantly fewer cases of racist behaviour that would be captured as unlawful.

Even in cases of overt racist abuse, it would be necessary to demonstrate that the conduct could incite a third person to feel racial hatred. Such an incitement test has proven extremely difficult to satisfy in existing state racial vilification laws.

Take the scenario of a spectator racially abusing a person at a football match. Under what is proposed, the only thing that will matter is whether third parties were incited. The effects of the abuse in degrading the target would be irrelevant, no matter how serious or severe the vilification.

As for intimidation, consider the scenario of someone being deterred from participating in public debate, out of fear of being subjected to verbal racial harassment. The proposed laws mean that this is unlikely to be considered intimidation.

The most disturbing deficiency of the exposure draft concerns its remarkably broad category of exception. These cover anything that is done in the course of participating in public discussion. The draft changes remove the current requirements for free speech to be conducted with reasonableness and good faith. The proposed exception is so wide it is hard to imagine what, if any conduct, the law would prohibit.

The effects would likely be profound. You may threaten physical harm, incite others to racial hatred, or racially abuse someone in any other way. You may do so dishonestly, unreasonably or in bad faith. With the proposed law, you may do all these things but nevertheless invoke the protection of free speech.

In other words, the dividing line between free speech and hate speech would be removed. There would be no distinction between venting racial hostility and conducting legitimate public debate about ideas.

Only one reason has been given for these proposed changes: the Andrew Bolt case. Bolt was found to be in breach of the Act, not because he queried the identification of fair-skinned Aboriginal people, but because he did so in a way that combined errors of fact, distortions of the truth and inflammatory and provocative language. He was unable to establish good faith. The Bolt judgment doesn’t provide a compelling reason for weakening protections against racism that have worked fairly since 1995.

Indeed, our existing racial vilification laws continue to enjoy widespread community support. A recent survey conducted by researchers at the University of Western Sydney showed that between 66 and 74 per cent of Australians agreed or strongly agreed that it should be unlawful to offend, insult, or humiliate on the basis of race. The majority of Australians have a strong commitment to racial tolerance.

This takes us back to that original question about what kind of country we would like ours to be. It is the mark of a civilised society that it protects the vulnerable from the powerful. For all that has been said about fighting hate speech with more speech, some forget that not everyone has the power to fight back against racism when it happens. It is for such people that racial vilification laws exist – to ensure that those who are silenced by discrimination at least have the assurance of knowing the law is on their side.

The proposed changes to the Racial Discrimination Act appear to favour a freedom to practise bigotry over a freedom to live unaffected by it. But as the philosopher Isaiah Berlin wrote, ”total liberty for wolves is death for the lambs”. Is this the kind of ethos that we wish to endorse through our laws?

Dr Tim Soutphommasane is Race Discrimination Commissioner.

March 30, 2014

The 2006 Cronulla riots exposed the ugly truth about this country’s multicultural success.

It was only a snort, a short derisive exhalation of air. But it was enough. I was at a barbecue with friends in Kempsey in NSW. The talk turned to the town’s indigenous population. I said something along the lines of the odds being stacked against them, and wondered how to help them. That’s when the snort from the acquaintance of a friend entered the conversation, and ended it for me.

This was in the early ’80s. I lived there for a couple of years and, in that time, I did not see one indigenous person employed in a job in any business in the town. There may have been. I’d like to be proved wrong. The ”Abos” – town jargon had moved on from ”boongs” – lived on the edge of town, squandering government money on housing they got for nothing just for being who they were. Useless. When they got handouts, they spent them on grog. They were ungrateful, they trashed houses they got for nothing. They were their own worst enemy.

But the descendants of Europe weren’t racists. Just ask them. If you dared. They just saw what they saw, said what they said and believed what they believed. They weren’t bigots either. Just ask them. If you dared. Everyone was treated the same, they would have said the colour of the skin didn’t matter.

Of course, you can’t label an entire town by one epithet. It would be unfair. Prejudiced even. But it was the case that what was unsaid – and bigotry is also silence – assumed the form of an atmosphere in which all breathed and lived. It pervaded life. It shaped words and actions. It allowed bigots to be themselves. It allowed the wordless snort that said everything.

Those people of 30 years ago would be happy to know that this country’s attorney-general has blessed their right to be who they were. Senator George Brandis said so in the Senate last week. ”People do have the right to be bigots,” he told the chamber.

In one sense, of course, the senator is right. No one person, nor government, party or instrumentality should be able to mandate who or what a person wants themselves to be. To do so would be to drill into the core of a person’s existence and lobotomise it. They can be bigot, bastard, barbarian – in their own home. That is their right. But outside the front door, concept collides with the real world. Not all people are reasonable, not all people are alert to the consequences of their actions. Voltaire, who may or may not have said I disagree with what you say but I’ll defend your right to say it, did say this: ”Prejudices are what fools use for reason.” How will a reasonable person be adjudged able to judge?

Thirty years on from the snort, surely something, somewhere in the nation has changed? And it has. There has been progress in land rights, steps towards recognition and reconciliation, emergence of indigenous culture into the mainstream and awareness of the breadth and depth of history. But through the journey there has been, and still is, a fault line. It is the fracture that runs through the land, and into it falls all the ugliness of attitude to the otherness of foreigners. We are a brilliant success story of multiculturalism – when it suits. And then Cronulla happens. We march with Michael Long on his Long Walk, and then we gibe and joke at Adam Goodes’ expense (and then we make him Australian of the Year).

When the White Australia Policy was given its death blow in 1973 by the Whitlam government, after being chipped away at over the previous two decades, the remnants of the policy didn’t vanish, they were merely strewn in little pieces over the ground. An optimist would hope time would wear them into dust. As the political debates, explosions of emotion and argument, set off by Brandis’ proposals, again have shown, bigotry, racism and prejudice have gone nowhere. You can’t argue with where you are, yet we constantly are at war with ourselves, arguing over which spirit and which place has the greater claim to a kind of proprietary morality.

Brandis’ proposal will make it unlawful ”for a person to do an act, otherwise than in private, if the act is reasonably likely to vilify another person or a group of persons; or to intimidate another person or a group of persons, and the act is done because of the race, colour or national or ethnic origin of that person or that group of persons”.

Vilify is defined as inciting hatred against a person or group; intimidate means to cause fear of physical harm. The standard will be that of ”an ordinary reasonable member” of the community, ”not by the standards of any particular group”. But then there is this: none of the above applies to ”words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”.

What? Has there ever been a greater get-out-of-jail clause?

In To Kill a Mockingbird, Atticus tells his daughter Scout: ”First of all, if you can learn a simple trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view … until you climb into his skin and walk around in it.”

I wonder if the owner of the dismissive exhalation 30 years ago ever considered walking in another man’s shoes? I suspect not. We could feel sorry for bigots and say they are incapable of ever doing so. They’re entitled to be whoever they want to damn well be. They can say what they like. It’s called free speech.

It’s also a poison that is carried on the wind across the land into our daily lives.

Warwick McFadyen is a senior writer.

March 29, 2014

Gay Alcorn

Activist Pat Eatock speaks to media after the Federal Court found in 2011 that columnist Andrew Bolt had breached the Racial Discrimination Act. Photo: Justin McManus

Fredrick Toben always insisted he wasn’t a Holocaust denier because you couldn’t deny something that never happened. The German-born Australian says there was never any systematic German program to kill Jewish people, denies the existence of gas chambers at Auschwitz and claims that Jews exaggerated the numbers murdered during World War II, sometimes for financial gain.

When Australia passed racial hatred laws in 1995, the Executive Council of Australian Jewry decided to take Toben on, led by its then director Jeremy Jones and the solicitor in the case, Peter Wertheim. Their first complaint was in 1996. It took until 2002 for it to get to the Federal Court, which found that Toben’s views weren’t part of academic debate about the Holocaust, but were designed to ”smear” Jews.

Toben refused to remove the material, citing freedom of speech. In 2009, he was sentenced to three months’ jail for contempt of court.

Illustration: Matt Davidson.

Wertheim is the executive director of the council, which has used racial hatred laws aggressively to fight serious examples of anti-Semitism – cases have been conciliated though the Australian Human Rights Commission and several have found their way to the Federal Court.

The influential national Jewish group and every major ethnic organisation in the land will not let these laws go without a fight.

The government, which this week released proposed amendments designed to end the ”chill factor upon freedom of speech”, as Attorney-General George Brandis put it, suddenly seems nervous about championing the free speech of people such as Toben.

The draft laws ”would always capture the concept of Holocaust denial”, Brandis insisted, saying it would amount to racial vilification, a proposed new provision. But Wertheim, as well as human rights lawyers, the libertarian Institute of Public Affairs, which campaigned to scrap racial hatred laws, and the Race Discrimination Commissioner, Tim Soutphommasane, are in agreement that people like Toben are likely to have free rein if the proposals become law, because the exemptions to vilification are so broad.

”I just don’t think that the Attorney’s reading of his own exposure draft is accurate,” says Wertheim, who was involved in two consultation meetings with Brandis about the changes. ”Just about every instance of Holocaust denial that has ever been challenged has been sought to be excused on the basis that it’s simply engaging in public discussion of an academic matter. I have no doubt that the prospect of succeeding in such a case under the proposed new legislation would be very much smaller than under the existing legislation.”

Critics of the government’s proposals say they are shocked at how far they wind back the right of vulnerable groups to seek redress for serious hate speech. They say Australia’s laws have worked with little controversy for almost 20 years and that the changes are a ”contrivance”, as Human Rights Commission president Gillian Triggs put it, to deal with conservative outrage about one case.

Columnist Andrew Bolt was found to have breached race hate laws in 2011 through articles – full of inaccuracies – questioning whether prominent fair-skinned Aboriginal people were claiming to be indigenous to receive benefits available only to Aborigines.

The government made no secret before the election that it found the Federal Court’s decision amounted to censorship of political opinion, and pledged to scrap the racial hate laws in their current form.

Herald Sun columnist Andrew Bolt, who in 2011 was found to have breached section 18C.

Amid the emotion and politics in this debate, there is a serious question about where to strike the balance between free speech in a democracy and protection against racial abuse in a multicultural society. Michael Gawenda, former editor-in-chief of The Age and now a fellow at the Centre for Advancing Journalism at the University of Melbourne, believes the government has ”botched” the handling of this. But he questions whether the current laws, which prohibit ”insulting” and ”offending” people on racial grounds are, in some circumstances, too broad, and even whether we need racial vilification laws.

”There are already laws against racial violence,” Gawenda says.

”There are certain things that you can’t do, you can’t intimidate people in terms of abusing them, you can’t assault them, you can’t advocate violence against groups or individuals.

”There is an argument to say that racial vilification laws are a slippery slope and you do end up with laws against insulting or offending people.

”In the end, I believe good argument beats bad argument. You take on racists by exposing them, not by banning them. And I don’t think any editor is under any obligation to publish their shit.”

Politically, the government is finding the nuance beyond it. It might have been right in the abstract, but for Brandis to say that ”people do have a right to be bigots, you know” while trying to convince people that his draft would strengthen protection against racial hatred is hard to pull off.

The backlash may mean changes to Brandis’ ”draft exposure” amendments, with a flood of submissions expected by the end of April. Fairfax reported this week that the resistance was not just external, with objection in cabinet to Brandis’ proposals.

Some in the broader party are expressing doubts publicly, including NSW Premier Barry O’Farrell and Victorian Multicultural Affairs Minister Matthew Guy. Senator Brandis is now sounding more conciliatory, indicating he is ”open to other suggestions”.

At the centre of debate is section 18C of the Racial Discrimination Act, which makes it unlawful to do an act publicly that is likely to ”offend, insult, humiliate or intimidate” on the basis of race or ethnic origin. You can do all those things but still be protected if your action was done reasonably and in good faith, and if it’s an artistic, academic or scientific work, or part of a debate in the public interest. It’s a civil, not a criminal, provision – there are no convictions for breaching the act, and remedies are often apologies or small payments.

The courts have interpreted the law to mean that a ”mere slight” is not unlawful – it needs to be serious racial abuse. The laws were controversial from the beginning, with then opposition leader John Howard opposing them.

The government’s changes would get rid of ”offend, insult and humiliate”, which the government says amounts to ”hurt feelings”, which shouldn’t be outlawed in a rowdy democracy. It keeps ”intimidate”, but defines it narrowly as causing fear of physical harm, with no mention of psychological harm. It introduces a provision against vilification, defined as inciting hatred.

The key is that the emphasis switches from the impact racial hatred has on its victims to whether it causes fear or incites racial hatred in others. Even if you do intimidate or vilify someone on the basis of race, there is a broad exemption for anything ”communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”. The requirement to be reasonable and in good faith are gone. Prime Minister Tony Abbott told The Conversation that the proposals would produce ”a stronger prohibition on real racism, while maintaining freedom of speech in ordinary public discussion”.

Soutphommasane, whose job is to oversee the laws, begs to differ. ”This would involve a very dramatic change to the law … it severely weakens the protections that exist against racial vilification and may have the effect of encouraging a minority of the population that they can racially abuse and harass someone with impunity.”

His boss, Gillian Triggs, believes the exemptions are so broad that ”it is difficult to see any circumstances in public that these protections would apply”.

Holocaust denier Fredrick Toben was found to have breached the Racial Discrimination Act.

There would not be another Andrew Bolt case. Judge Mordecai Bromberg found that Bolt couldn’t rely on the free speech exemption because he did not act reasonably and in good faith, and that his articles contained ”gross inaccuracies”. Even if it was found that his articles caused others to be fearful or incited racial hatred, they would be exempt because they were part of public debate.

Critics are bewildered as to why these changes are a priority. The vast majority of complaints to the Human Rights Commission are settled through mediation, with only about 3 per cent reaching court. Academics Luke McNamara and Kate Gelber have recently completed research on the impact of hate speech laws on public discourse in Australia. Of 3788 vilification cases lodged nationally under federal and state laws between 1989 and 2010, just 68 (or 1.8 per cent) were referred to a tribunal or court. Of these, just 37 (54 per cent) were successful.

”Our headline conclusions was that the claim that there is a diminution of free expression in our society [because of the laws] is not supported,” said Professor McNamara. ”The claim that these laws are a magical solution to racism isn’t really supported, either. Most people who experience racism are never going to invoke these laws but take comfort from their existence.”

The director of the Castan Centre for Human Rights Law at Monash University, Professor Sarah Joseph, was uncomfortable that under the existing law ”offend” and ”insult” could restrict free speech.

”There is no human right to be free from offence and insults, even on the basis of one’s race,” she said.

But the government went much further. The definition of intimidation was now too narrow, Joseph said. And the shift in the standard to be applied when deciding if something is intimidating or vilifying becomes that of a reasonable member of the general community rather than a member of the targeted group. That misunderstood how severely some people could be impacted.

”But the biggest problem is the exemption which seems to remove all statements made in public debate,” she said. ”There’s no requirement for reasonableness or good faith. It’s an extremely broad exemption.”

Joseph believes that only racial abuse such as neighbourhood disputes – where a neighbour hurls racial insults at another over a fence, for instance – might be caught. Anything to do with public debate, unless it incites hatred in another or intimidates to the point of causing fear of physical harm, would not be unlawful. Virtually nothing that appeared in the media, including blogs, was likely to fall foul of the law.

Peter Wertheim understands the free speech arguments, but says what is most upsetting about anti-Semitism is not that somebody writes that the Holocaust never happened. It’s the smear, the insinuation about what Jews are like, the dehumanising of individuals. There’s a role for the law in that, he says.

”To be the object of racism is to be depersonalised, to be made an abstraction. I think people who have not been the objects of racism often don’t understand that. I don’t think the government understands it either.”

HOW OLD CASES WOULD FARE UNDER THE NEW LAW

THE LAW NOW

Under the Racial Discrimination Act, it is unlawful to do something that is reasonably likely to ”offend, insult, humiliate or intimidate” someone because of their race or ethnic origin (Section 18C). There is a free speech exemption if you have acted reasonably and in good faith and if it is an artistic, academic or scientific work or about a matter of public interest. (Section 18D)

Critics say the law is too broad, particularly the words ”offend” and ”insult”, and has the potential to restrict free speech on contentious issues.

THE PROPOSED NEW LAW

The government’s ”exposure draft” would get rid of ”offend, insult and humiliate” but ”intimidate” would stay, defined as causing fear of physical harm. A new provision would outlaw racial vilification, defined as inciting hatred. The need to act reasonably and in good faith is gone, with the free speech exemption applying to ”public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”.

Critics say the amendments go too far and would fail to protect vulnerable groups from racial hatred, particularly given the broad exemption for racial abuse if it was done as part of public discussion.

THE IMPLICATIONS

The director of the Castan Centre for Human Rights Law, Professor Sarah Joseph, assesses how the following three cases would fare under the new draft laws.

EATOCK v BOLT 2011

Herald Sun columnist Andrew Bolt was found to have breached section 18C in two articles suggesting prominent fair-skinned Aborigines had falsely identified as indigenous to claim benefits available only to Aboriginal people. The judge ruled Bolt could not rely on the exemption for a matter of public interest because he had not acted reasonably or in good faith, and his articles contained gross inaccuracies.

Professor Sarah Joseph: Bolt would not have lost the case. His articles were found to have been likely to intimidate, but intimidation has been narrowed to mean ”cause fear of physical harm” and it is unlikely that the articles would make someone fear physical harm. It is also unlikely they would be found to vilify fair-skinned Aboriginal people, as it would be hard to establish they would cause third parties to hate that group. In any case, the defence for anything written as part of public discussion is so broad it seems to ”save” almost any column written in the mainstream media, and probably any blog.

CAMPBELL v KIRSTENFELDT 2008

In what started as a neighbourhood dispute in a town outside Perth, Mervyn Kirstenfeldt was found to have breached section 18C by repeatedly calling his neighbour Kaye Campbell, an Aboriginal woman, names such as ”Gin”, ”nigger”, ”coon” ”lying black mole c—” and telling her to go ”back to the scrub where you belong”. The abuse was often made in the presence of Campbell’s family and friends.

Joseph: This could be perceived as intimidating or vilifying. The repetition could make an ordinary person fear physical harm. The abuse could be interpreted as vilifying, though it is unlikely Campbell’s friends and family would be turned against her. The public discussion defence would not apply, as the abuse is not in the context of political or social commentary. Such ”neighbourhood” abuse would still be against the law.

JONES v TOBEN 2002

In the first case to do with racial abuse on the internet, Holocaust denier Fredrick Toben was found to have breached the act and was ordered to remove offensive material from the web. Toben expressed doubt that the Holocaust ever happened, said it was unlikely there were gas chambers at Auschwitz, and claimed Jewish people, for reasons including financial gain, had exaggerated the numbers of Jews killed.

He was found to have lacked good faith because of his ”deliberately provocative and inflammatory” language.

Joseph: Toben would likely not be found in breach of the new law. It is unlikely his speech intimidates so as to make people afraid for their physical, as opposed to psychological, wellbeing. It could however be interpreted as vilification. Holocaust denial indicates that the Jews have concocted the Holocaust for self-serving purposes, a classic anti-Semitic idea that has historically provoked hatred against Jewish people.

However, Toben would likely be saved by the exemption, as he could claim his website was published as part of political, social, cultural, or academic discussion.

There is no requirement the discussion be reasonable or be conducted in good faith.

March 26, 2014

Illustration: John Spooner.

It is perhaps not surprising that a day after declaring that “people do have a right to be bigots”, Commonwealth Attorney-General George Brandis has released his intended changes to provisions of the Racial Discrimination Act.

Brandis desperately needs to offset the bluntness of his response to Senator Nova Peris’ question about the effect that repeal of section 18C of the act would have on the experiences of ethnic groups in this country. The section makes it unlawful for a person to “offend, insult, humiliate or intimidate” others because of their race. As a way of articulating the government’s mission on 18C, for which the catalyst was the successful case brought against columnist Andrew Bolt, the Attorney-General’s candour was refreshing.

But in taking that toxic word from the question put to him by Peris and proclaiming his government’s view that people have the right to be ”bigots”, Brandis would have set alarm bells ringing, not just for indigenous Australians, but throughout our multicultural community.

Attorney-General George Brandis. Photo: Andrew Meares

The draft amendments to the act that Brandis released on Tuesday are surely aimed at recapturing the middle ground in this debate – which the Attorney-General decidedly lost in the Senate chamber on Monday.

Brandis’ defence of free speech to the extent of bigotry was deeply problematic – both in the specific context of the purpose of 18C and the bigger picture of the government’s position on race and free speech generally.

Let’s start with the government’s broader agenda. The Abbott government is committed to putting up a proposal in this term for the recognition of indigenous Australians in the constitution. The Prime Minister has signalled that this is a project to which he has a strong personal commitment.

It is unclear just how the huge task of a referendum is assisted by Brandis, who will be at the centre of the case for constitutional change to acknowledge our first peoples. He will effectively be telling Peris, one of the few indigenous Australians ever to sit in the national Parliament, that his government is standing up for the right of bigots.

Successful referendums depend on trust in the government putting the proposal. But Australia’s indigenous communities would be forgiven for doubting the government’s commitment to constitutional change as a meaningful act of reconciliation when Brandis appears so dismissive about the role of law to prohibit divisive racist speech.

Likewise, the government appears conflicted over the importance it places on free speech generally. Brandis has repeatedly justified his plans to remove the protections of the Racial Discrimination Act by insisting that “our freedom and our democracy fundamentally depend upon the right to free speech”. But how is the community to square the forcefulness with which he makes this claim with the substantial restrictions the government has placed on efforts by the media and public to access information about asylum seeker arrivals and conditions on Manus Island?

On section 18C, it is very clear that the government is making a choice as to whose rights it gives priority. Brandis presents his case as one of inviolable principle, yet we need only reflect on the circumstances of the notorious Bolt case to appreciate why free speech might justifiably be ceded to other interests. The reality is that some voices are louder than others in our democracy. Andrew Bolt communicates his views through a range of media platforms. The people about whom he made remarks and who brought their action under 18C have no equivalent capacity to respond. Indeed, until the outcome of their case, had the community heard the other side to what Bolt had written?

The Attorney-General’s defence of the rights of bigots presumes that those who are targeted by their comments are just as capable of marshalling the media to defeat that bigotry. This imagined level playing field underpinned his full response to Peris. But that is obviously not always, or even often, going to be the case.

Law is an instrument through which a community’s values and rights may be given effect. In Monday’s debate, Brandis came down firmly on the side of those who would give voice to racially motivated insult and offence, over those who are targeted by such comments. In so doing, the Attorney-General presented his government as having a character that we might suspect caused some real discomfort in its ranks – and also, at the top.

The government may be hoping that the swiftly released proposals for amending the act will ameliorate this. Section 18C is to go but its protection of groups from intimidation is preserved. Additionally, a new offence of racial vilification, meaning the ”incitement of hatred against a person or a group of persons” is to be created.

For a government that promised there would be ”no surprises,” this is a big one. The Coalition ran on scrapping 18C – something its supporters, including the Institute of Public Affairs, are determined to hold it to. It did not campaign on being the government which, as Brandis trumpeted on Tuesday, would provide for “the first time that racial vilification is proscribed in Commonwealth legislation”.

But this development needs to be understood alongside the vast exemption to be given to communication made “in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter”.

The government wants to hear from ”all stakeholders” on its proposed changes. It will be fascinating to see who, if anyone, is happy with them.

In opposition, it probably seemed harmless venting a bit of outrage over the Bolt case. But as debate over 18C continues to show, tangling with issues of race is a complicated and treacherous business. The government has dug its own hole and now it is busy trying to shovel a way out – hoping it isn’t just digging itself deeper.

Professor Andrew Lynch is a director at the Gilbert + Tobin Centre of Public Law at the University of NSW.