Dean Smith (WA, Liberal Party) Share this | Hansard source

I am also pleased to speak this afternoon on the motion, which reads:

The Abbott Government’s confused and chaotic approach to hate speech provisions in the Racial Discrimination Act 1975.

Might I thank Senator Dastyari for his calm and reflective comments in what is a very important debate. It is an important debate because it is easy to drift into accusations and unpleasantness about people's motives. Right up front, I would like to acknowledge Senator Dastyari's contribution because he refrained from that and he pointed to the fact that senators like myself and others approach this issue with great sincerity.

Before Senator Dastyari spoke, I was inclined to talk about Labor's actions this afternoon being one of playing politics with this issue because it is not a secret that within the coalition there are various views amongst senators and members, myself included, about where the appropriate balance is to be struck between free speech and protecting people from shameful and hurtful comments. It is a debate about where the balance is to be struck.

I argue that where it is struck at the moment is not right, is inappropriate. In a few moments, I am going to share with you others that share my view who you would not expect to hear from—Julian Burnside, for example; Sara Josef, for example—but I will come to that point in a moment. It is important to say up-front that my position is different from the government. So as a government senator, let me be clear what the government's position is.

The Prime Minister and senior ministers regularly make strong statements condemning hate preachers and the poison they spread amongst the community. That is an undisputed fact. The government has introduced foreign fighters legislation that has included strong prohibitions against the advocation of terrorism. The Attorney-General did announce on 20 February 2015 that the government would be providing nearly $18 million to combat the lies and propaganda the terrorist groups are spreading throughout our community, particularly online. This will empower the government and community members to directly challenge terrorist propaganda. Importantly, the Prime Minister also announced in February this year that the government will be taking strong action against hate preachers including stronger prohibitions on vilifying, intimidating or inciting racial and religious hatred. These strong prohibitions, these initiatives of the government, on hate speech will clamp down on organisations and individuals who breed hate and incite violence. The government of course is giving consideration to the criminalisation of this conduct and it is important to note that the government is not considering amendments to section 18C of the Racial Discrimination Act 1975 as, in its view, the RDA is a civil regime. So that is the position of the government.

My position of course is slightly different. I suspect this is where we would have ended up if the very genuinely inspired consultation process of the government had been allowed to run its course. We would have ended up with a proposition to remove the words 'offend' and 'insult'. And why would we have ended up there? Because prominent Australians were already there. Human rights activists and lawyers were already at that position. Let me just share with you, briefly, what Justice Robert French had to say. That name will be familiar to you, Mr Acting Deputy President Back, because he is a very esteemed Western Australian lawyer. He is of course now the Chief Justice of the High Court of this Commonwealth. In Bropho v HREOC, Justice French said:

The lower registers of the preceding definitions [in 18C] and in particular those of 'offend' and 'insult' seem a long way removed from the mischief to which Art 4 of CERD is directed. They also seem a long way from some of the evils to which Part IIA [of the RDA] is directed as described in the Second Reading Speech.

The now Chief Justice of the High Court previously said, 'Before we engage in this debate, where we have ended up with Senator Day's, Senator Leyonhjelm's, Senator Smith's and Senator Bernardi's private senators' bill is a responsible position to be. That is compelling for me. I suspect that in a more tempered debate it would be compelling for many Australians.' Let me add to that—and this is from someone whom I would not regularly quote—what Julian Burnside had to say. He is a prominent human rights lawyer and he has publicly said:

… the mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability. My personal views is that 18C probably reached a bit far so a bit of fine-tuning would probably be OK.

The Australia Human Rights Commission said in its submission to the now abandoned consultation process about reforming 18C and its comment on the exposure draft of the Freedom of Speech (Repeal of S. 18C) Bill 2014 considered that:

… the legislation could be clarified so that it more plainly reflects the way in which it has been interpreted in practice.

In the limited time that is available to me, let me just add one more supporter, the very respected human rights lawyer Professor Sarah Joseph, Director of the Castan Centre for Human Rights Law at Monash University, who has said:

… the prohibitions on that which offends and insults, even on the basis of race, go too far. Feelings of offence and insult are not serious enough to justify restrictions on the human right to freedom of speech … It is true that the terms "offence" and "insult" have been interpreted so that they mean more than "mere" offence and insult. It is arguable that judicial interpretation has saved these provisions from actually breaching the right to free speech. However, the law should mean what it says. If "offence" and "insult"' do not mean what they say, the prohibitions should go.

I am not renowned for my patience, but on this issue I will be patient because I have every confidence that, one by one, senators in this place will realise the wisdom of this approach to free speech. I do not doubt for a second that there will be some road blocks and people will try to make political mischief, but I am confident that community opinion will change in the favour and in the direction of the private senator's bill, which is sponsored by Senators Day, Leyonhjelm, Bernardi and me. Thank you.