Turnbull cherrypicks 'umpire's' decisions

Malcolm Turnbull’s lukewarm reaction to the report handed down last week by the bipartisan Parliamentary Joint Commission on Human Rights has contrasted sharply with his support for the ‘umpire’s decision’ of the Fair Work Commission to cut penalty rates.

The Prime Minister appointed five Liberal members to the Human Rights Committee:  Senators James Paterson and Linda Reynolds; and MPs Ian Goodenough, Russell Broadbent and Julian Leeser.  Mr Goodenough was also given the responsibility of chairing this important Committee.  One of the duties of the Chair of a Committee is the preparation of a draft report.  Liberal members made up five of the ten members of the Committee, with the Chair having the final casting vote where necessary.

The final majority report tabled last Tuesday was signed off by all five Liberal members of the Committee.  That report does not recommend any changes to the Racial Discrimination Act.

The purpose of Parliamentary Committees is, according to House of Representatives Practice:-

“to perform functions which the Houses themselves are not well fitted to perform, that is, finding out the facts of a case or issue, examining witnesses, sifting evidence, and drawing up reasoned conclusions… In a sense they ‘take Parliament to the people’ and allow direct contact between members of the public and representative groups of Members of the House.”

The reasoned conclusion of this Inquiry, which, over a period of only 112 days, held hearings in every capital city and received more than 11,000 items and more than 400 submissions, was to affirm NO change to the Racial Discrimination Act.

But the Prime Minister is not happy with this ‘umpire’s’ decision and has not ruled out watering down section 18C of the Racial Discrimination Act, notwithstanding the Committee’s majority report.  Some refs are more equal than others.

Contrary to popular media perception, section 18C only prohibits racist speech which has ‘profound and serious effects, not to be likened to mere slights’.  The judicial meaning, originally propounded by Her Honour Justice Keifel as she then was, now the Chief Justice of the High Court, has been approved and adopted by the line of cases that have followed.  She was appointed to Australia’s highest judicial post by the Attorney-General, Senator Brandis, in January this year.

The protections in section 18C cannot be considered in isolation.  They go hand in hand with section 18D which provides a number of exemptions to the conduct which will be caught by section 18C, including for artist or scientific purpose or in the public interest .

The Committee acknowledges in its report that Part IIA of the Racial Discrimination Act is considered by many to be an ‘important protection against forms of racially discriminatory speech and racism in Australia’. 

The Prime Minister’s disrespect for the Committee’s conclusions should not be surprising.  On two previous occasions Malcolm Turnbull has used legislation to upset the decision of other independent ‘umpires’.  He actually abolished the independent umpire itself in the case of the Road Safety Remuneration Tribunal.

It seems Mr Turnbull will ‘support the independent umpire’ only when it suits him politically.

If Malcolm Turnbull does not abide by the conclusion of the bipartisan Human Rights Committee report which did not recommend a change to Section 18C, he is thumbing his nose at Parliamentary procedure; the Australian community, whose views were the basis of evidence before the Committee; and democracy itself.

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