Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Hansard source

At the request of Senator Dastyari, I move:

That the Senate notes that the Prime Minister (Mr Turnbull) has repeatedly said making changes to section 18C of the Racial Discrimination Act is "not a priority" but has refused to rule them out.

As you well know, Madame Acting Deputy President Reynolds, in this parliament in the last sitting the particular issues around the Racial Discrimination Act were heard many times in discussion—even, I would think, in serious debate many times. In my opinion, that is a very good thing. I think that having more people who really understand the way our legislation operates and who question the way our legislation operates can only make the legislation stronger and also community education more effective. So, whilst I sincerely disagreed with many of the people who emailed me and many of the people who talked to me at community events about their views about section 18C and, not so often but sometimes, section 18D of the Racial Discrimination Act, I was pleased that they felt that they could have the conversation.

Whilst having that conversation in the last parliament, we had an outpouring of concern around any attempt to make change to this legislation. The legislation has been on the books for 20 years, and I am not sure whether, in that 20-year period, anyone had really talked about it too much. But certainly, as a result of some issues being raised in the previous parliament, they did, and it became almost a cause celebre in many ways because there was seemingly an argument in our community about the right to free speech.

I do not think that there is anyone in our nation who does not believe that Australians do have the right to free speech. It is something that we sometimes take for granted. However, the issue that caused so much concern in the last parliament was whether this issue of free speech came alone or there were any responsibilities that came with having open, free speech. I believe that many people in the community agreed that, whilst we do have free speech because that is a democratic right, that right of free speech is very much countenanced by responsibilities.

The Racial Discrimination Act, over 20 years ago, did put some responsibilities around our right to free speech. Specifically it said, in section 18C, that free speech could not in any way hurt, offend or abuse. I think that continues to be the key question. For me, there is a question for all of us and particularly for those people who now again have brought out their concerns about 18C in our current situation. I just want to know, from people who question 18C, what hurt, offence or abuse they believe should happen in our community. I strongly believe that the people who framed the legislation really meant to ensure that we could balance the right to say whatever we wanted to say with another, equally important right: what we wanted to say should not be framed in a way that would cause hurt, offence or abuse to other members of our community.

What was hoped to be achieved 20 years ago in the RDA was that we would build a strong community that was based on respect. The reason that that legislation was brought forward is that we had ample evidence in our community that there was insufficient respect—that there was not a sense for everybody in our community that they felt safe, secure and respected. For people who are going to be involved in further discussion around the issues in section 18C of the Racial Discrimination Act, it would be useful to go back and see what caused the framers of 18C to make the legislation.

For those of us who remember—and, whilst I was not in this place 20 years ago, I was certainly in the wider community, and I had an interest in issues around discrimination—we had a series of pieces of legislation and a series of community reports, Senate reports and also statements that highlighted, to our shame as a community, that there was effective discrimination based on race that was occurring in our community and had occurred historically. People would remember the National Inquiry into Racist Violence in Australia and the Royal Commission into Aboriginal Deaths in Custody, and we will be absolutely privileged to hear a first speech in this place this afternoon from a man who was deeply involved in that process. I look forward, as I am sure we all do, to hearing Senator Pat Dodson make his first speech in this parliament.

Senator Dodson, in his capacity as a commissioner many years ago, was active in raising awareness in our community about the horrors, the hurt and the damage of unfettered free speech that would attack people on the basis of their race. The Royal Commission into Aboriginal Deaths in Custody set down a baseline which said, 'This is what has occurred in our history; this is what is still occurring'—at that time—'and we must put into place many recommendations.' As you would remember, many recommendations came out of that seminal inquiry, which was publicised widely across our country, but part of those recommendations was to ensure that we would look at the way we would operate as a community. We would identify behaviours and actions which would cause offence, and we would work together as a community to respond to that.

So, as to other things: we had another inquiry that was done by the Law Reform Commission, a group that I respect deeply and whose reports I value reading whenever they come out. At that time, they released a report on multiculturalism and the law which highlighted the way people from different backgrounds were being treated by our law and how they felt as though they had some restrictions on their ability to access legal justice.

As well, we had our international commitments. Australia, as we know, has been a leader in signing up to a range of international treaties. We go back to the actual formation of the League of Nations and then the United Nations, where Australia has always been a leader. We signed up to a range of international treaty obligations, including the International Convention on the Elimination of All Forms of Racial Discrimination; we have clearly identified that we, as a nation, would be part of that treaty obligation. And when you read that treaty you will see that we accept that we will work to eliminate any form of behaviour or action which would cause discrimination to people on the basis of their race. And part of that, I believe, was the introduction of the racial discrimination legislation, in which are sections 18C and 18D. In those, we balanced this ability in our nation to celebrate our freedom to speak freely with the responsibility—aware of our history; aware of the indication of where hurt and concern was caused—to moderate that right. That is still the situation now.

So again I say: what hurt, offence, abuse, elimination and discrimination do people want to use their speech to cause? And when I ask that question of the people who are saying that they need to go back and rescind this legislation, they are nonplussed. If they go to define what they want to say publicly, they are nonplussed as to saying how that would impact on another. And when we cause people to get together and work through that process, I think that we will achieve what the people who wrote the Racial Discrimination Act would have intended us to.

We, together, can identify what in speech causes offence, what in speech causes people to feel unsafe and what in speech causes people to feel unworthy. And if, by our free speech, we have that effect, I think we should be seriously thinking about how we are using free speech.

In these discussions, we often talk about the individual and the individual impact, and, coincidentally, amongst all the emails that I have at the moment, as we all do, on issues that are important to our nation, there was one from a young man in my state—and I am not going to use his name because he emailed me, and I do not think he wanted his particular name known. His opening cry in the email simply was: 'Please do not change 18C.' To begin with I was pleased that a young man knew what 18C was. But then I went on to read his email, and it was gut-wrenching. He talked about the fact that he was from another country—he and his family had come over here—and he had been subject to bullying and also abuse, linked to the way he looked, the way he spoke and the way he behaved. He said in his email that, when he talked to people about how he felt—and it took him a while to have the courage to talk to other people about how he did feel hurt, offended and excluded by what people in some ways thought could have been a bit of a joke—he was made aware that, in Australia, under the racial discrimination legislation, what was happening to him had been declared to be wrong.

He did not take any particular grievance up. He did not write a submission to the Human Rights Commission claiming that he had been vilified. But becoming aware that this legislation was in place gave him strength to be able to build his response to the people who were bullying him and causing him harm. So, in many ways, that sums up for me the argument as to why this legislation is important. It means that people who are damaged know that our nation has said that that is inappropriate.

Some of the people who have contacted me on the other side, who claim that they should have completely unfettered free speech, indicated that they felt that this piece of legislation was stopping the activities of operations in our nation. So I then went back to check with the Human Rights Commission to see how many complaints had been received by the Human Rights Commission under this particular clause. To begin with, the number was extraordinarily small—and I know that my young man in Queensland was not one of them. But the numbers of people who took their concerns to the level of putting in an actual complaint was very small. Then I went further, to find out what happened when these complaints were received by the commission, and I looked to see how much legal action there was and how much the courts were being damaged by the number of complaints that have been put forward. What I found out from talking with the commission was that, even for most of the claims that got as far as someone making a complaint—having the strength, I believe, to put in a complaint about what they felt was wrong—most of those situations were resolved by having mediation. The people involved could sit down together and work through what the complaint was and what the impact of the complaint was and what caused the action to occur. Thankfully—and, I think, most successfully—most of these actions were mediated and there was no further action but an agreement that a process had occurred and that there would be no further action taken. Some—and I have not got the numbers with me—did go through to much further action, though not many. Unfortunately, they are the ones we see in the media—the ones that get the highlight in that process.

Nonetheless, as I said about the issue with the young man in Queensland who felt vindicated and strengthened by the fact that they had some protection under legislation, I believe one of the true values of the clauses in the Racial Discrimination Act that look at free speech is that it causes people to know that there is an understanding in our community and an understanding under law that it is not appropriate and not right to use free speech to hurt or abuse or harm.

I know that we are going to hear much more about this issue over the life of this parliament. I genuinely hope for the response that we had in the last parliament, which was such a strengthening and gathering of people across the community from a wide range of multicultural groups, churches and community activists who got together to say that they did not want to have this legislation changed, that they wanted to ensure that people understood that, in Australia, our right to free speech is effectively balanced by a protection: that people should not have freedom to harm, freedom to abuse, freedom to offend. In that process I am hoping that that same community reaction will occur again.

Maybe the way to ensure that we understand the rights of free speech is to have someone like Senator Bernardi come forward with the full support of so many other people from the other side of politics to put this on the agenda again so that we will be able to continually in the parliament have a look at the way we believe free speech should be. We would be able to continually challenge our community to see how they believe free speech should happen. We would be able to challenge our community so that they, if they have not been subject to attack, discrimination or exclusively, will have the ability to put themselves in the place of someone who has. If they do take that opportunity, if they do then see how they would personally feel if they were the victim of someone speaking freely in a way that they would find offensive or harmful, would they still champion a change to 18C?

That continues tonight to be my challenge. Have a look at what the legislation says. See what the intent of the legislation was. Have a look at the environment which led to the legislation being developed and genuinely look at what is occurring in our society, in our community today. See if there have been any changes. See whether people are more prepared to abuse others on their racial basis. See whether there is any more preparedness to think that we have the right to hurt.

I truly believe that, once the community understands the legislation, they will begin to challenge anyone who thinks that we have the right to say anything about anyone at any time which could be harmful and particularly if we use their race. Remember we are talking about the racial discrimination legislation. See if it is appropriate to use someone's race in such a negative way that it could be harmful. I believe that we are able to communicate more efficiently and effectively than that.

If I have trouble with somebody else because of their race—and I am trying desperately to think how that would happen, but if it did. You should never say that nothing could happen, but if I were having a difficulty with another person that was linked to their race, I would really hope that I would be able to communicate what was affecting me, what was causing me concern without causing them personal concern, that I would be able to identify what the issues were, explain what I was doing and ensure that I would be freely able to make that comment and, in making that comment freely, I would be aware of the impact of my words. Sometimes in this place we forget that, once the words have been said, they can never be taken back.