Tim Wilson (Goldstein, Liberal Party) Share this | Hansard source

I shall therefore withdraw, but I stress again that the previous speaker said that the report said that there was no issue with the law and it did not need to be changed. Then he talked extensively about how he supports the recommendations that recommend changing the process in the law. With all due respect, I think there is an inconsistency—I am sure I am allowed to say that. I think what we should be doing, as the member for Berowra said before the recent division, is look at how we can reform the law in a practical and sensible way, particularly around supporting recommendation (3) and its option of removing 'offend', 'insult' and 'humiliate' for the term 'harassment'. I have just made the case why—because the law should treat everybody equally. I make no apology for standing up for that fundamental principle of liberalism. That is what I said in my submission to the inquiry—that we should set a standard that applies to people consistently.

I also support it because it was the foundation of the introduction of the law in the first place. People forget this. Often Labor and others outside this place remark that the introduction of 18C was preceded by three independent inquiries that recommended the current law. That is fundamentally untrue. Section 18C was introduced in 1994 by then Attorney-General Michael Lavarch. Lavarch said 18C was necessary because three major inquiries had found gaps—the National Inquiry into Racist Violence, the Australian Law Reform Commission's report into multiculturalism and the law, and the Royal Commission into Aboriginal Deaths in Custody. It is true, there were three inquiries—but before they are used as a justification people should actually read them.

The royal commission did not recommend the current law—it recommended a law prohibiting 'racial violence, discrimination or hostility.' The ALRC inquiry recommended 'making incitement to racist hatred and hostility unlawful.' Even then, though, one of the ALRC Commissioners dissented, saying:

… in a democratic and pluralist society freedom of expression is of special importance which may necessitate tolerance of obnoxious and hateful views which do not incite violence.'

Critically, the Human Rights and Equal Opportunity Commission's inquiry into racist violence recommended a civil offence against incitement of racial hostility, an express prohibition on racist harassment as well as a federal criminal offence against racial violence. The commission also recommended the creation of the offence of incitement to racial violence. None of the three inquiries—none—recommended making offensive, insulting or humiliating speech unlawful. That is not just my conclusion—that was the conclusion of the Parliamentary Library in its Bills Digest, where it identified:

… the Racial Hatred Bill 1994 is in some aspects completely contrary to the recommendations of these three reports.

The Bills Digest went on to say that the standards set by these inquiries 'involve a high threshold of serious conduct' yet 18C 'establishes a civil offence with the significantly lower threshold'. These three reports recommend the law rightly focused on harassment, hostility and violence, which is at the core of the recommendations that have just been handed down, in recommendation 3 as one of its options—to actually go back to what Labor thought they argued for in the first place but got wrong.

In arguing for the law at the time, the Attorney-General also said:

The bill places no new limits on genuine public debate. Australians must be free to speak their minds, to criticise actions and policies of others and to share a joke. The bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people.

An honourable member interjecting—

Respectfully to the member who has interjected, it was the former Labor Attorney-General, Michael Lavarch, who said that—again, not me. Similar sentiments were echoed in a 1994 article in The Age newspaper arguing for the law. According to its advocates, 'Most Australians would sympathise with the aims of the bill,' as I do, 'namely, to control racist violence, threats and harassment.' We can be sure that that was true then, and it remains true today, including by all of the people who support a constructive change in the law. The article went on to say that the law will apply to:

… the skinhead on the street yelling racist names and other insults at an Asian man, or a woman in traditional Islamic dress, not newspaper articles or anti-immigration pamphlets.

Any objective assessment says that that test has now proven to be false, even if it has been unintentionally. It may appear that the insidious nature of the law has been revealed only in recent cases, but that is wrong. It was controversial when it was first introduced. There is a speech worth reading from the time. As the previous speaker said, sometimes you have one of those moments that you do not think you are ever going to have; I am going to recommend a speech by a member of the Australian Greens. Australian Greens senator Christabel Chamarette said at the time that the broad scope of the law would:

… create a crime of words. This will take the legislation across a certain threshold into the realm of thought police …

That is stronger than most criticism raised by 18C's critics today. How far the Greens have truly fallen.

It is in its present form that 18C has more in common with antiblasphemy laws in theocracies than it does, frankly, with other federal laws dealing specifically with public speech. When you put into context just how bad it is—and there are so many things I have yet to say—it becomes clear that it is a complete aberration, because there is no equivalent provision on the basis of people with a disability; there is no equivalent provision on the basis of people's gender or sexual orientation.

The reality is—I have used examples like this before, which are rooted in reality—if you establish a test around harassment, I am quite relaxed about that, because the reality is that there are times where people get attacked on the basis of people's culture in other minority groups. When that happens, 18C creates a legal shield for them to not be able to stand up and call out other people's bigotry. This, in the end, is the frustration I have. Let us have a law that applies to everybody. Let us have a law that respects everybody equally. Let us not create an environment where some people enjoy special legal privileges and other people do not. In the end, it is time to cut the cancer out of the middle of this law and replace 'offend, insult and humiliate' with 'harassment' so that we can have a racial discrimination act that enjoys the confidence of the whole Australian public.

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