Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Hansard source

I rise to speak on the government's Human Rights Legislation Amendment Bill 2017. However, I do find it somewhat ironic that its title is 'human rights legislation'. Labor made its choice long ago, and that choice was to stand with multicultural Australia and stand against bigotry. It was Labor that introduced both section 18C and section 18D, and we will always stand firm in protecting them.

Sadly, our Prime Minister seems to have made another decision. He has chosen to fundamentally undermine the provisions of sections 18C and 18D, despite his promises not to. All this will do is make it easier for people to insult or humiliate others on the basis of their race. It is galling to me that the government chose Harmony Day last week to outline their plans to weaken protections against racism in our country.

Sections 18C and 18D were introduced by the Keating government in response to a number of reports on racial violence, including the national inquiry into racist violence by former race discrimination commissioner Irene Moss and the great Australian lawyer Ron Castan QC. It was also in response to royal commissions and other inquiries into our international obligations.

These provisions are designed to capture not only harassment but also broader campaigns and factions of racial humiliation offence and abuse. Sections 18C and 18D have been established for all the right reasons, and 18C has embodied Australia's condemnation of racial vilification and protected our society from the poisonous effects of hate speech, so they should be protected. At the same time, 18D has operated to protect free speech by providing exemptions for artistic works, scientific debate and fair comment on matters of public interest, providing they are said or done reasonably and in good faith.

It is notable to me that, as Professor Triggs highlighted to our Senate committee last week, with the Bill Leak cartoon that has been so much of the motivating force that has brought us into this debate today an 18D application was never made. It is clear that the government in putting this legislation forward has not been listening to people who have experienced racism.

The idea of moving to a definition of 'harassment' seems to have been put forward by, as far as I can tell, only one member of the joint committee that inquired into this matter. The fact we have this legislation before us at all is a testament to the fact that the coalition has been held captive to a right-wing agenda that is completely out of touch with the lived experience of Australians who have experienced racism and, for that matter, with the priorities of the broader Australian population, who would prefer their politicians to be thinking about creating jobs, quality public services, education and training, and more. Section 18C has been an ideological obsession of the right wing of the Liberal-National Party, which sadly our Prime Minister, Malcolm Turnbull, is too weak to do anything about. Let us not forget that Tony Abbott also tried to introduce these laws when he was Prime Minister.

Labor, on the other hand, I am proud to say is steadfast in its position. Section 18C is good law. It has functioned well for two decades and it has protected our multicultural society. I remember growing up in the 1980s, when the word 'boong' was commonly directed at my Indigenous school peers. It is little wonder to me that they did not stay at school. I remember racist slurs against my Asian friends on the bus: 'gook, chink' were, again, all too common. I remain ashamed that I did not have the courage at the time to stand up for them. I have certainly witnessed how recently xenophobia and Islamophobia, some of it emanating from this very place, are driving racist sentiment and with it racist actions towards other Australians.

We have as much need as ever for the protections of 18C. We are all innately equal as people—however, this law undermines the principle of our universal equality as people in a couple of really problematic ways. The idea that 'harassment' is better than or even, frankly, equal to 'offend, insult and humiliate' as a legal test is ill founded. As the many Indigenous people and people of multicultural background have said, 'What is it you would like to be able to say that you're currently prohibited from saying?'

While the government may be able to draw on some high-profile individuals, as Senator Paterson highlighted, of diverse ethnic and racial backgrounds who are supporting changes in the law, I can highlight to the Senate today that that is not the case when it comes to mainstream ethnic and Indigenous Australia. Dr Soutphommasane said to estimates last week:

There will no doubt be a variety of opinion within many communities on this issue, as there would be on any other issue of public policy, but it is my considered assessment that, of representative community organisations covering multicultural, ethnic and Indigenous communities, an overwhelming number of them, if not uniformly the case, would not be comfortable with any weakening of the Racial Discrimination Act.

Currently, section 18C of the Racial Discrimination Act reads:

(1) It is unlawful for a person to do an act, otherwise than in private, if

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

The changing in the wording in the legislation before us reduces the protections that are afforded to victims of racial discrimination and racial hate speech by narrowing the scope of behaviour that may constitute offending conduct. The Federal Court has recognised the difficulties with 18C applying to 'offensive, insulting and humiliating acts' by interpreting it so that it only applies to 'profound and serious effects, not to be likened to mere slights.'

I remain equally confused as to why the government might choose try to remove the word 'humiliate' when controversy around this matter has generally only focused on the words 'offend and insult'. It is also unclear why the word 'harass' has been chosen instead of other options. We have had no opportunity to canvass these issues through the Senate committee. Legal practitioners and organisations have expressed their concern about how the word 'harass' will be defined. The Law Council made a plea to our committee raising concerns that it could denote proximity between two people and would not cover situations where racial hate speech is, for example, used in a media article. The changes would also result in a period of uncertainty about the scope of the new provision, which, I feel, is an irresponsible move by government.

In the new so-called objective test in 18C of the Racial Discrimination Act, we see the introduction of a 'reasonable member of the Australian community' as the objective standard for determining a breach of 18C, instead of the test that the court currently applies of 'whether an act is reasonably likely in all of the circumstances' to have the relevant effect. Changing the test defining whether someone ought reasonably feel harassed by someone's actions from the target group at whom the insult or offensive action was directed at to a so-called 'ordinary person' who is not part of the group at whom the offence was directed is an extraordinary thing to do.

On that note, I think it is worth highlighting that it is all too commonplace in our Australian society that racist talk does take place. I note specifically that it takes place often while the group that is targeted by such talk is not in the room. If no-one feels offended or takes offence on behalf of those who were the target of the offence, does that represent the new 'ordinary person' test? The court should, I feel, be able to take into account the relevant context—namely, the fact that racial vilification is directed towards people of a particular race. They need to be able to take this into account when assessing whether it is reasonably likely that a group would be offended, insulted, humiliated or intimidated. So the changes to 18C combined with the change in this objective test are a very insidious combination.

I want to highlight some of the other changes in this bill—namely, the complaints-handling processes of the Australian Human Rights Commission as set out in the Australian Human Rights Commission Act. These changes have not been subject to proper consultation. The bill was introduced last Wednesday and it was referred to the Senate Legal and Constitutional Affairs Legislation Committee, of which I am a member. We tried to extend the time that we would have as a committee to look at these changes, but we were deprived of that opportunity. Our capacity within the Senate committees to look at these issues has been fundamentally undermined.

No Indigenous Australian representative bodies were invited to appear before our committee. I did ask Senator Macdonald on Thursday evening—and I gave him forewarning that I wanted Indigenous organisations to be able to appear. However, the government majority deprived them of being able to give their evidence. This is a disgraceful example of arrogance on the part of this out-of-touch government. I note that both the Human Rights Law Centre and FECCA gave evidence at the hearing. Both groups talked about the importance of 18C and 18D. They gave a range of insightful evidence to the committee, including evidence relating to increased levels of racism, vilification and verbal abuse that has been occurring in the community—frankly, talk about 18C is giving licence to racist hate speech in the community.

The public hearings also drew our attention to evidence from the Human Rights Commission about the flaws in the procedural changes. I note that the government has committed to amending schedule 2. I am not yet at liberty to see what changes the government is making. This is, again, a real demonstration of what is a fundamentally flawed and rushed process. In evidence before the committee, I saw an exchange between Senator Brandis and Professor Triggs, where essentially they were working out whether they would have time to sit down and look at further amendments to the bill. That kind of process, where discussion between the Human Rights Commission and the government itself was still taking place, has deprived members of the Senate of being able to consider what amendments they are putting forward. I do not know yet whether agreement has even be reached.

The commission highlighted how a number of recommendations would result in additional red tape and would likely cause additional delay and added costs to parties to complaints, as well as impeding access to justice in relation to meritorious complaints. I know Labor has put forward amendments. We are yet to see if the Human Rights Commission's concerns will be addressed by the government and how our amendments may marry into the amendments put forward by the government. Again, it is another example of a flawed process. What I note here is that these changes will impact on thousands of complainants and respondents who use the commission's complaint-handling processes. Here again we have had a tiny bit of consultation around 18C. The previous inquiry that took place—I did not see consultation with disability groups, LGBTI organisations or women's organisations, who will all be affected. The universal changes to this legislation will change the nature of the way these things are managed for everybody, across all grounds. There has been no consultation with people about those matters.

These issues need to be resolved, otherwise the government should withdraw them. I look forward to advice to the chamber about where these issues are up to. I can only hope that, after this legislation is dealt with, the folly of those on the other side in relation to this matter will be laid to rest. It is a sad fact that, while those on the other side of the chamber keep the door open on this debate, we are also opening the door to people's self-proclaimed—as Senator Brandis would put it—right to be a bigot. The effectiveness of our Racial Discrimination Act is founded on the fact that there is no such right. As a result of there being no such right, racist actions and racist language in our community is curtailed. The idea that racists have anything legitimate to say that deserves to be heard must be done away with once and for all. There can never and never should be a right in this country to be a bigot. I do not want my son to grow up in a country where people have the right to offend, insult or humiliate another person based on their race or frankly any other attribute.