Stuart Robert (Fadden, Liberal Party, Minister for Human Services) Share this | Hansard source

Thank you for the opportunity to make some comments on the Parliamentary Joint Committee on Human Rights' report Freedom of speech in Australia: inquiry into the operation of part IIA of the Racial Discrimination Act. It is a very good report. The committee failed to reach consensus on many issues but outlined the issues in great detail.

Everyone in this parliament, certainly on my side, is passionate about freedom of speech and passionate about freedom generally. Personally, I am a huge believer in very small government. The less government we have the better, the more freedom society has the better, and the less intrusion in our lives the better. I am passionately against the rise of a politically correct culture driven by identity and gender that we see growing around us that seeks to curb free speech, that seeks to define what people can say and indeed even what they can think. I am passionately against individuals and organisations that use political institutions as political weapons, and this is happening more and more and more.

My fear is that sections 18C and 18D of the Racial Discrimination Act are being used as a weapon. No-one here in this parliament wants to see greater racism. Everyone is aware of the horror of what racism involves and the impact upon those who are victims of it. Protections in law exist to assist people who may be subject to such racism, and they should remain. The wider question is not one of racism, is not one of bigotry and is not one of what hate speech parliament wants to allow to be heard. That is not what this is about. This is about whether the Racial Discrimination Act is working as it should and/or whether the Australian Human Rights Commission is working as it should. Recent cases point out that one or both are failing the nation. That is what this discussion is about.

The question is not so much what should be allowed, but I think we can reflect on what should not be allowed. The QUT case is a case in point. On 28 May 2013 Wood and two other students were using a QUT computer lab, where Ms Prior, an employee of QUT, asked them whether they were Indigenous. They replied that they were not. Ms Prior then asked them to leave. Later that day, on the QUT Stalker Space Facebook page, I am led to believe, Mr Wood posted:

Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation…?

That was it. Ms Prior complained to QUT about these and other comments, which were promptly removed, to the university's credit. However, Ms Prior was ultimately unhappy with QUT's handling of the matter and lodged a complaint with the Australian Human Rights Commission. The commission conciliated Prior's complaint. However, it did not contact students directly about the complaint or the conciliation conference. Instead, it left this task to QUT. Powell did not know about Prior's complaint until after the conciliation conference. Conciliation failed. Ms Prior commenced proceedings in the Federal Circuit Court against QUT, certain QUT employees and a number of students—Wood, Thwaites and Powell—claiming $247,570 because one of them had put on the Facebook page:

Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation…?

One of the lawyers on the case ran as a Labor candidate against me at the last election, hence my interest in this particular case. This was all because of an online comment not directed at Ms Prior. If you asked the average member of the community, 'Is it appropriate that students could make a statement like that and suddenly face years of political process and costs?' the answer would clearly be no. It is the sort of comment I could well have made, as I personally think the idea of segregating resources for students based on gender or identity is wrong. Because your gender or identity is different to mine, it does not mean, at a university campus, you should have access to greater amounts or higher levels of publicly funded equipment. That is not multiculturalism. That is segregation. We are all made equal in the eyes of God and we should all have equal access to public resources. No one section of the community is more important than another. Every person, regardless of race, gender, colour, disability or otherwise is absolutely and utterly equal.

A number of students settled with Ms Prior. They did not want the harassment, so they settled quietly. Others said 'No; this is wrong.' The Federal Circuit Court agreed with them. It dismissed Ms Prior's case against Alex Wood, Calum Thwaites and Jackson Powell. Judge Michael Jarrett concluded that Prior's claim against them had no reasonable prospect of success. Judge Jarrett concluded that an ordinary and reasonable member of a group of Aboriginal and Torres Strait Islanders, either students or generally, who had the characteristics of a member of a fair and tolerant society, would not be reasonably likely to find these statements offensive, insulting, humiliating or intimidating. Wood's statements were against both QUT and racial discrimination generally. Powell's statements, when read in the context of other comments, were 'a poor attempt at humour'. In any event, both Wood's and Powell's statements amounted to 'mere slights', therefore not meeting the threshold 18C requires. Finally, neither Wood nor Powell made their statements because of Ms Prior's race or because of the race of the relevant groups. That is the finding lawfully. Those opposite say, 'Well, this shows the system works.' Really? After three years of reputations being besmirched and smashed publicly and enormous costs, this shows it is working? This shows that something is broken. This case should have been dismissed at the start. The process itself is wrong. Even to get a dismissal application through the Australian Human Rights Commission involves the numerous filings of pleadings, affidavits, submissions, appearances and other injunctions within a court. There are imposts in terms of time, substantial money is involved and stress involved. A dispute that arose in May 2013 took until November 2016 to resolve, and those opposite say the system is apparently working fine.

The problem is either the law or the Australian Human Rights Commission, because there is a problem. The Parliamentary Joint Committee on Human Rights came out with no conclusive analysis or statements regarding the law but a range of recommendations that will assist with processes—a lot of those to deal with the Australian Human Rights Commission. Nick Cater, who did an analysis from 2001 to 2005, showed that the Australian Human Rights Commission rejected 30 per cent of complainants. He also writes that under its most recent presidents, Catherine Branson and Gillian Triggs, fewer than five per cent have been rejected. Could it be that the problem is actually the Human Rights Commission and its current leadership? I note the request by many elements of the community to maintain section 18C as it is, but something has to give: either the law is not functioning as intended or those administering the law—in this case its early adoption—the Human Rights Commission, are not administering it correctly. The question is: why?

Parliament reviewed this in August 2014. The Abbott government proposed a new section in the RDA that would make it unlawful for a person to do an act that was 'reasonably likely to vilify another person or group of persons, or intimidate another person or group of persons'. This ultimately failed from lack of support. The community did not support it and the parliament did not support it. At present there is no broad consensus on the way forward with respect to the act. But I do believe there is consensus—and the report brings it out—that there are a number of changes that can be made to the way the Human Rights Commission goes about its initial work: its initial conciliation and its initial processes. Perhaps the answer is reform of the commission itself as the first step. This is only one step in continued debate, but I certainly look forward to many of the recommendations being implemented and reform of the commission occurring.

See this speech in context