James Paterson (Victoria, Liberal Party) Share this | Hansard source

I present the report of the Parliamentary Joint Committee on Human Rights on freedom of speech in Australia together with the Hansard record of proceedings and documents presented to the committee.

Order that the report be printed.

I move:

That the Senate take note of the report.

I begin tonight by talking about the committee process and, obviously, the committee report but, fortuitously, we had the announcement of the government's response to the report today so I am also going to address that in my remarks.

Firstly, I want to place on the record my appreciation and thanks to the committee's secretariat who did heroic work in a short time to assist the committee with its work, receiving over 10,000 submissions and holding over nine hearings in six cities. It was a phenomenal effort and I know all members of the committee are very grateful for the support we received from the secretariat.

I am also very grateful to my colleagues on the committee—both my coalition colleagues and colleagues from other parties—for the way in which they participated in this inquiry. It was a genuine inquiry of people with sincere and different beliefs and different conclusions were drawn but everyone brought to this debate their own values and principles, and I recognise the sincere commitment that my colleagues have to these issues.

As a committee we were wrestling, on the one hand, with a very fundamental freedom—which we should all cherish and which is so central to living in a free society and a liberal democracy—freedom of speech, and, on the other hand, the right not to be discriminated against and, for me, particularly, the right to feel safe and included in the Australian community. They are difficult issues to reconcile. They do clash and, ultimately, this is a question about where we draw the line.

I believe the committee report pointed in a good direction and gave the government a good path, which they have now taken up, to resolve that issue, and the government has done so today with a reasonable compromise. I say compromise because one of the things all members of the committee agreed to, during this process, was that the Queensland University of Technology students' case was a travesty of justice and should never happen again, but we had different views about how best to ensure a case like that never happens again.

There are those who believe—and by the comments today I assume that includes members of the Labor Party and the Greens—it would be sufficient only to update the Human Rights Commission's processes to ensure that a QUT case does not happen again. Even though I very much welcome the proposed changes to the Human Rights Commission's process announced by the government today, I do not think they are sufficient on their own to ensure that we never have another QUT case. I will use this opportunity to outline, in detail, why I think that is.

The Human Rights Commission already has the power to terminate unmeritorious, vexatious, weak cases. In this case, they did not use those existing powers. The President of the Human Rights Commission said, publicly, that she believed this case had a level of merit and that is why it was not terminated. So I am not confident that extra powers to terminate cases like this would ensure that this case would have been terminated. But even if they did provide that a QUT case in the future would be terminated by the commission, I am not convinced that that would be sufficient to discourage what we had in this case, which was a very determined applicant and lawyers who advised her to continue the case.

Not only did this applicant continue it beyond conciliation, when conciliation was unsuccessful, and take it to the Federal Circuit Court but also when she was unsuccessful in the Federal Circuit Court and when costs were awarded against her in the Federal Circuit Court she chose to appeal the court's decision to the Federal Court and continue the case. Clearly, any discouragement that was put in place at the Human Rights Commission level, by these reforms to the Human Rights Commission processes, would not have been sufficient to dissuade the applicant.

I am concerned not just about the three students who, ultimately, went to court and defended themselves—though I have great admiration for them and their lawyers, who offered their services pro bono to defend this case, this important principle case—but also about the students electing to reach a confidential financial settlement with the applicant. They did so for a number of reasons. One is that they did not want to be accused, in public, of being racist and breaching the Racial Discrimination Act. I do not blame them for not wanting that on the record. The students, in persisting with the case, have detailed to the committee how this has profoundly affected their lives and careers.

Another reason is that they did not have confidence, had it gone to court, that they would have been successful in defending their case. And so they elected to pay money. It has been reported it was $5,000 each. It was also reported that they offered to settle for lesser amounts or to apologise, but the applicant did not accept those offers. The students felt that the law was so stacked against them that there was no choice but to pay money—and they have testified that they were barely able to afford this and had to scrounge together for it. They chose to do that because the law was so stacked against them. That is also why change to the law itself is necessary.

I am very pleased, today, that the Prime Minister and Attorney-General have announced that the government intends to reform 18C by removing the words 'offend, insult and humiliate', and adding the word 'harassment' in its place, keeping the word 'intimidate' in the law. That will give students, like those at QUT, confidence that if they are accused of this and if the Human Rights Commission handles it well—or badly—ultimately, if they choose to defend their case in court, they will get a fair hearing and there is a good chance they will get off. Hopefully, it will not take them 3½ years to clear their names—as it did for the students who decided to defend their names, in this case.

The government will also proceed to reforming the test in 18C to ensure that it is an actual objective community standards test. A number of court cases have narrowed this reasonable-person test to make it not just in my view a relatively subjective test but in the view of many legal experts, like Professor George Williams and Justice Sackville—because it relies on the perception of offence, insult or humiliation, in the current law, by a member of the affected community rather than by a member of the Australian community at large. That is an important and welcome reform.

The challenge is now before the parliament. The government has resolved its position and is moving forward on this and it is now up to the parliament to decide what, if any, reforms it is willing to vote for. I hope we do not just vote for Human Rights Commission changes alone because, as I have said, I do not think that will ensure there are no more cases like QUT or Bill Leak. I also hope they vote to change the law. In considering how they do that, I hope that members of this place consider that if these reforms are defeated, and if there is another case like QUT, that will be on their conscience. It will be their fault because they have decided to oppose reasonable, compromise reforms. The only thing we can do to guarantee that there will be no more cases like QUT, Bill Leak or Andrew Bolt is to repeal 18C completely. That is not something that has the support of this parliament and it is clearly not going to happen. But we can substantially reduce the risks of that happening and we can do that by voting for both of these reforms. If we do not do that we are running the very real risk that one of the 76 cases that are before the Human Rights Commission today on 18C, or any of those that might be brought in the future, will turn into the next Bill Leak or QUT. Two things will happen: one, people who voted in this place not to reform this law will have to take responsibility for those cases; and two, you can expect the Australian public will be even less sympathetic to the law or to the Human Rights Commission than they are today. If they again see this law being misused to pursue students, cartoonists or journalists, I suspect they will be much less sympathetic to arguments to retain these laws. They might even be more sympathetic to going further and getting rid of all these laws together. So, if you want to preserve 18C in some form, if you want to preserve a targeted limitation on racial abuse, which I think we should have in this country, the time is now to vote for the reform that is on the table because it will ensure that harassment and intimidation based on race are unlawful, as they should be, and it will ensure that freedom of speech is better protected. This is about finding a better balance. I am very pleased that the government has so carefully studied the report of this committee and has taken up many of the recommendations of the committee and I am very hopeful that the parliament will give it equal consideration and, ultimately, support it.