Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

I rise with mixed feelings to speak on the Human Rights Legislation Amendment Bill 2017. I say mixed feelings, because there are some procedural aspects to this bill that the Greens intend to support. I refer specifically to parts of this bill that seek to amend the Australian Human Rights Commission Act and change some of the processes and ways that the commission conducts its business. But, of course, that is not the headline of this bill. The headline and the core attempt of this bill is undoubtedly to make it easier to be a racist in Australia by gutting the protections against racism in this country that are contained in section 18C of the Racial Discrimination Act. Those 18C matters are dealt with in schedule 1. Schedule 2 amends the Human Rights Commission Act, and, in the most part, as I said, those relate to complaint handling processes of the commission. Schedule 3 amends the Native Title Act and relates in the main to annual reports. I can flag now that we are reserving our right to move a number of amendments to those matters dealt with in schedule 2, as well as ensuring that we do whatever we can to make sure that 18C stays the way it is, which is as a strong protection against racial hate speech in this country.

I want to go to the speed with which this bill is being rushed on first. I have made some comments about that already today. A casual observer of the way that this government has conducted itself could be forgiven for thinking that this is the most pressing issue facing Australians today. Quite frankly, not only is it not the most pressing issue but it is also not in the top 10 of pressing issues. In fact, it is not in the top 100 most pressing issues facing Australia today. This entire cacophony of a debate has been generated by The Australian newspaper, by the IPA and by the agents of the IPA on the Far Right of the Liberal Party. They have succeeded in bullying a gutless Prime Minister into supporting changes to racial protection laws in this country that, if passed by this place, will make it easier to be a racist in Australia.

There is never a good time to make it easier to be a racist, but now is the worst of all times. Multicultural Australia has united to defend 18C as it currently stands. In doing so, they have been abundantly clear with anyone who is prepared to listen. They have been clear that racism is on the rise in Australia. They have been clear about the physical and mental health impacts on people who suffer from racism. They have been clear about the fact that racism practised against their communities is detrimental to individuals and it is detrimental to communities as a whole. And the Greens have listened very closely to that evidence as put before the human rights committee, time after time. We will stand shoulder to shoulder with multicultural Australia. We will defend the protections against racism in this country and we will do everything that we can to ensure that multiculturalism in Australia, that beautiful fabric that weaves right through almost every element of our society, is protected and enhanced.

The government has consistently and abjectly failed to make the case for change in relation to 18C. I pose, for the umpteenth time, that question that proponents of change would rather run a million miles than actually front up and answer: what is it that they want Australians be able to say, what offence and insult on the basis of race do they want Australians to be allowed to give, that they cannot currently give? Time after time that question is posed, and time after time proponents of change refuse to answer it. Instead, they say that this is all about freedom of speech—as if freedom of speech was ever an unfettered right in a Western democracy!

But those of us who value freedom of speech—and I genuinely believe that is everybody in this place—ought know that it has never been an unfettered right in a liberal democracy, and it ought never be an unfettered right in a liberal democracy. No, this is not about freedom of speech; it is about freedom from consequence. It is about making it easier for people to say racist things in this country without facing consequences for those statements. If this government was serious about freedom of speech, they would be in here repealing section 42 of the Border Force Act, which imposes jail terms of up to two years for people like teachers and nurses who speak publicly about the horrors they witness in Australia's detention centre network.

But the government is not in here doing that. If they were serious about freedom of speech, they would be having a sophisticated debate about defamation law in this country. But they are not doing that, because this is not about freedom of speech; it is about freedom from consequence. If they were serious about freedom of speech, they would be revisiting the powers that exist to issue suppression orders in this country, to stop journalists reporting the truth in Australia. But they are not having that debate, because it is not about freedom of speech. This legislation it is about freedom from consequences.

We have the sad but entirely predictable spectacle of the Attorney-General coming into this place claiming with more front than a D9 bulldozer that these changes to 18C are about strengthening section 18C. It absolutely beggars belief. Black might be white in the Attorney-General's mind, and war might be peace, but, no, in no reasonable assessment is the government doing anything other than gutting protections against racism in this country.

Back to the unholy rush with which the government has conducted itself. I want to remind the Senate what the President of the Human Rights Commission submitted to the quick-and-dirty Senate Legal And Constitutional Affairs Legislation Committee inquiry into this legislation. This is Professor Triggs:

Any proposal to amend the RDA should involve extensive public consultation as it has the capacity to affect the human rights of all Australians. In particular, there should be consultation with those communities whose members are most vulnerable to experiencing racial discrimination.

And she is absolutely right about that. But, instead, what we have had is a quick-and-dirty inquiry that gave just three working days for people to make submissions and less than 24 hours notice for people to appear at a public hearing—a public hearing, mind you, that denied representatives of the Aboriginal Legal Service their opportunity to appear.

Despite the advocacy of ALP and Greens members of that committee, the government used its numbers to deny the Aboriginal Legal Service a chance to appear at that hearing, and in doing so ensured that that hearing and that committee process—the only process that was specifically inquiring into the legislation that we are debating—did not hear from Aboriginal and Torres Strait Islander Australians. They did not hear from this country's original inhabitants—the group which is potentially most impacted by racism in this country and certainly the group that has subjected to racism in this country for the longest time, because racism against Aboriginal and Torres Strait Islander Australians started the day Europeans arrived in this country, over 200 years ago, and it is still going today. For this Senate to make a decision not to hear from those people through the committee process is an absolute bloody disgrace.

I want to talk about the human rights committee process. I am the Greens representative on that committee, and I want to be very clear about what we heard through the processes of that committee. Day after day, submission after submission, we heard and read that weakening 18C would unleash more racism in Australia, which would harm the health and wellbeing of members of the multicultural spectrum in this country. We heard about the harm that racism causes. We heard how it can cripple self-esteem. We heard how it can damage mental health. We heard how it can make people less likely to engage with their communities and with government services that are there to support them. We heard those stories and similar stories from the Islamic community, the Jewish community, the Chinese community, Aboriginal and Torres Strait Islander communities, the Lebanese community, the Vietnamese community, the Sikh community, the Japanese community, the Indian community, African communities, the Greek community, the Cambodian community and many others, including many peak bodies of multicultural Australia.

And we heard that weakening protections against racism in this country has the potential to unleash a torrent of vilification and abuse and to ostracise people from different cultures from around the world and Aboriginal and Torres Strait Islander people in their own country. And remember: in many, many instances we are dealing here with Australians—Australian people who hold Australian citizenship, people who this government wants to leave more vulnerable to racism.

I want to raise a case that highlights some of the problems with what the government is proposing in regard to its 18C changes. It is Campbell v Kirstenfeldt 2008, a case in which an Aboriginal woman, Kaye Campbell, was subjected to appalling racism from her neighbour, Mervyn Kirstenfeldt. Mr Kirstenfeldt made derogatory comments to Mrs Campbell's family, using appalling racial slurs and telling them to go back to the scrub where they belonged. Mrs Campbell's 18-year-old son was a target of this abuse. Mrs Campbell said that, when she walked past Mr Kirstenfeldt's house, he would stand inside his screen door and glare and swear at her. Mrs Campbell said she was not able to go anywhere without being scared. This case ended up in the Federal Court, where Mr Kirstenfeldt's conduct was found to be offensive and insulting—two of the words that the government is seeking to remove from the act.

The simple fact is: we do not know if behaviour like that is going to meet the replacement standard that the government is seeking to insert, because the government is actually throwing away two decades of case law with these changes. The explanatory memorandum states:

The new test of whether a public act harasses or intimidates a person or a group of people on the basis of their race, colour or national or ethnic origin will focus on the vice at the heart of racial vilification. It will protect individuals from genuine racial vilification, not simply from mere slights …

Well, to have an explanatory memorandum signed off by an Attorney-General who clearly does not know the case law in regard to section 18C is an absolute disgrace. The Attorney ought to be aware of the Creek v Cairns Post Pty Ltd case where Justice Kiefel, now Chief Justice of the High Court of Australia, held that the relevant harm threshold under section 18C of the Racial Discrimination Act is behaviour that has, to quote from her judgement: 'profound and serious effects, not likened to mere slights.' So the Attorney says that people ought to be protected from vilification, not simply from mere slights, whereas Justice Kiefel's decision in the Cairns Post case makes it very clear that mere slights do not clear the bar, as the law is currently drafted. What a joke of an Attorney-General this country currently suffers under.

This government wants to also insert what is known as a 'reasonable person test'. I want to be very clear about what this reasonable person test seeks to do. It seeks to set a benchmark for racism in this country that no longer relies on the lived experience of the people who have suffered its effects. It is a logical absurdity that the government is engaged in here. What it does is to remove the current objective standard of a reasonable member of the relevant racial group—and I want to quote the Human Rights Law Centre on this: 'Section 18C has been interpreted by the courts to require an objective standard—that is, whether conduct is reasonably likely to offend, insult, humiliate or intimidate, judged from the perspective of a hypothetical reasonable or ordinary person from the relevant racial, ethnic or national group.' I will quote further from the Human Rights Law Centre: 'Courts have said that extreme, atypical or intolerant reactions of members of the group are not to be taken into account. This means that conduct is not unlawful under the current law if it racially offends, insults, humiliates or intimidates an overly sensitive person in the group.' I hope that is clear.

Put simply—and, I will admit, quite crudely—how can someone who has never been called the N-word in anger, or denigrated because of their particular race, possibly know what it feels like to have that happen? But that is the test the government wants to apply. Make no mistake: when taken as a whole, the changes to 18C—that is, the removal of words and the insertion of 'harassment', and the insertion of a reasonable person test—completely gut protections against racism in this country.

In the short time left to me, I want to address schedule 2, which has amendments to the Australian Human Rights Commission Act. The Greens welcome some of these amendments, and in fact many of them were recommended by the commission itself. Of the 59 items that we currently see in the legislation, the Human Rights Commission supports 50 of them. The Attorney-General has flagged that he intends to bring in amendments, which we still have not seen, despite the debate on this bill starting, that will address some of the commission's other concerns. But we do not know how many of the remaining nine issues that are of concern to the Human Rights Commission are going to be dealt with by the amendments in the government's package, because we simply have not seen those amendments.

I want to end this second reading contribution—I will have more to say as we move through the clauses as we have given a commitment that we will—on the divisive politics that are contained in this legislation. True leaders will try and unite a community and not divide it; in particular, true leaders will not seek to divide a community for base political aims. But that is exactly what the Prime Minister has done. I know there will be people who will be happy that he has done it: Senator Abetz, who is in the chamber now, his colleague Senator Paterson, Senator Leyonhjelm and many of the other culture warriors in this place who dedicate themselves far more to the culture war than they do to standing up for ordinary, everyday Australians. They will be happy that they have actually bullied a Prime Minister into doing the things that are contained in this legislation. They will be happy that we are debating this today when, in fact, there are so many other, more urgent issues like climate change, economic inequality and the government abandoning the people doing it toughest in this country, which we are not debating while we are debating changes to section 18C. Ordinary, everyday Australians will not be happy, but they will be happy when these changes go down, as they will. (Time expired)