Jane Hume (Victoria, Liberal Party) Share this | Hansard source

I rise this afternoon to speak on the government's Human Rights Legislation Amendment Bill 2017. As we all know, this bill contains three elements. It contains reforms to section 18C of the Racial Discrimination Act 1975, it amends the complaints-handling processes of the Human Rights Commission under the Australian Human Rights Commission Act 1986 and it also makes minor amendments to the Australian Human Rights Commission Act specifically sought by the commission to enhance its operation and its efficiency.

Let's first deal with the issue of amendments to the complaints-handling process. These amendments give effect to the majority of recommendations of the Parliamentary Joint Committee on Human Rights in its report on freedom of speech in Australia tabled in parliament less than a month ago. The bill also amends the Australian Human Rights Commission Act in line with the recommendations made by the commission itself, and these will have the effect of reducing its regulatory and administrative burden, reforming reporting requirements and clarifying the commission's conciliation process and governance arrangements. The commission wanted and in fact requested these specific changes.

These amendments will restore public confidence in the commission's processes and thereby restore confidence in the commission itself. They will bring certainty to both complainants and respondents to complaints of unlawful discrimination and they will ensure that all parties to a complaint are accorded procedural fairness.

But procedural amendments are clearly not enough. The language of section 18C of the Racial Discrimination Act has lost all credibility. The government now seeks to replace that language to better reflect the intent of the legislation, to make the Racial Discrimination Act clearer, to make the Racial Discrimination Act stronger and to make the Racial Discrimination Act fairer. The bill will amend the Racial Discrimination Act to redefine conduct prohibited by 18C to more accurately reflect and encompass the notion of racial vilification. It does this by removing the words 'offend', 'insult' and 'humiliate' and replaces them with the word 'harass', making it a prohibited act to harass or intimidate anyone on the basis of race. The bill also introduces an objective standard in which a reasonable member of the Australian community would judge that an act of harassment or intimidation validly occurs rather than the standard of a hypothetical representative of a particular group.

The Racial Discrimination Act 1975 is a law that was developed with good intentions. It was developed to defend the vulnerable, to articulate the principles of a successful multicultural society and to reflect our values of inclusion and acceptance. They are values that we hold dear. Australia is arguably the most successful multicultural nation on this earth. We value not just tolerance but acceptance, not just inclusion but immersion. Our migrant heritage has allowed our great nation to flourish economically and culturally. In 2017 you would be hard-pressed to find an Australian without friends, colleagues or extended family members who hailed from other countries and other cultures. And by far the vast majority of Australians treat those who hail from near and far with respect, with dignity and often with great admiration. The vast majority of Australians decry racism and denounce those who vilify others on the basis of race or behave menacingly towards those we embrace. This was the intention of the Racial Discrimination Act.

But what has become apparent is that the Racial Discrimination Act is a law that gave practical effect to making it unlawful to hurt people's feelings. The only sensible course of action is to redirect 18C towards more serious conduct. The law should provide protection from racial vilification and it should do so in a manner that is consistent with Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. However, this protection needs to be consistent with the right of freedom of speech, which is the cornerstone of a strong and healthy liberal democracy. Effective protection against racial vilification need not curtail freedom of speech. However, section 18C in its current form potentially does so and at the same time does not provide any extra protection from racial vilification. The amendments that have been proposed have a dual purpose: they provide stronger and clearer laws about what constitutes racial vilification of freedom of speech.

Strengthening the Racial Discrimination Act by removing the subjective terms 'offend', 'insult' and 'intimidate' and replacing them with the word 'harass' has a dual effect. Removing the words addresses the disconnect between the ordinarily understood meaning of these terms and the way they have been judicially interpreted, and the concept of 'harass' in section 18C will be clarified in the bill to also include a single act. It can include, for instance, a person who is verbally attacked on a bus, as Senator Hanson-Young expressed, purely on the basis of their race. That single act will constitute an act of harassment.

Australia's legal community has made it very clear that the act in its current form renders the law vulnerable to a High Court challenge, a concern that the Australian Law Reform Commission clearly stated in its 2015 report. I will quote directly from that report:

The inclusion of the words 'offend' and 'insult' raises a possibility that the High Court, in an appropriate case, might read down the scope of section 18C, or find it invalid.

But it is not just the Australian Law Reform Commission that has called for urgent reform to the Racial Discrimination Act. Countless others of varying political persuasions have been united in their concern over the ramifications of a law that limits free speech. Tony Morris QC was the barrister for two of the QUT students in the Prior versus Queensland University of Technology case. Tony Morris said:

For far too long, 18C’s wording has misled complainants, feeling en­titled to object to the slightest insult or offence (the QUT case is an example par excellence), and respondents, imagining they are liable even for trivial discourtesies.

Section 18C has been the only law in Australia and perhaps the only law in the world by which liability is determined exclusively from the standpoint of would-be victims. Indeed, Warren Mundine, the former president of the ALP, told The Australian that the low bar of the existing law meant that we were not capturing the real racists, but catching normal everyday people like the Queensland university students and cartoonist Bill Leak.

Mr Shorten said that the proposed changes would open the gates to racists and take advantage of their new green light to insult, offend and humiliate. But Mr Mundine, a man I know you deeply respect, Mr Acting Deputy President Sterle, said:

I don't agree because I am a person who believes in free speech.

He said he was very supportive of the changes to 18C because it had become a big stick and there were lots of people who had been beaten with that stick. It stifles debate on confronting real issues.

Professor George Williams, a former ALP preselection candidate and the current dean of law at the University of New South Wales, also said:

Despite its limited operation, there is a good case for amending section 18C … the law should proscribe extreme forms of speech such as racial vilification and incitement to violence. Section 18C goes too far in applying to more minor forms of speech, in particular words that offend or insult.

I know that David Marr has been quoted in this chamber numerous times in this debate, and that is because he truly is a lion of the Left. As a journalist for The Guardian, on March 15 this year, he wrote:

I want 'offend' and 'insult' taken out of section 18C of the Racial Discrimination Act. I don't think the law should engage at that level. But I can't see that this country would be a better, freer place if 'humiliate' and 'intimidate' went too.

Dr Sev Ozdowski, the former Human Rights Commissioner, also said:

There should be no right to not be offended.

That is a quote from The Australian. He also said:

There is no doubt in my mind that racism needs to be curtailed, but I am yet to see solid empirical evidence that the insertion of section 18C into the act in 1995 diminished racism.

He also said to the Parliamentary Joint Committee on Human Rights:

… I have seen the chilling effects of that legislation on the discussion of any cultural characteristics. Questions about cultural practices are risky to ask. It also builds resentment and distrust. It creates a 'them and us' attitude. In my view, it may put multiculturalism at risk. It also creates enormous repercussions that damage the respondent to a complaint, regardless of whether the allegation is proved or not. Being accused of racism is a similar thing to being accused of sexual violence. It is having a very negative impact on people who are accused of racism.

And I note that Senator Hanson-Young did that very thing in this chamber this afternoon, which was very disappointing. Sue Gordon, who is a Western Australian magistrate and also an Indigenous community leader said:

Gagging people from fairly and legitimately held opinions is censorship. It is a basic denial of freedom of speech …

The underlying problem with the ill-considered effects of Section 18C is that if someone says they have been offended or humiliated, who is to challenge them? That is not what freedom of speech and the right to fairly voice your opinions is about

Clearly, section 18C is stymieing legitimate debate that is potentially useful and healthy. It is stopping that, not necessarily because the conduct would contravene section 18C, but because of the fear of legal action and the untold reputational, financial and often personal damage that might ensue from that. Importantly, what is the point of a law that does not do the exact thing it was meant to do? What is the point of a law that does not capture those who genuinely vilify, harass or intimidate? Our current law as it stands with 18C is not capturing those who abuse and menace a stranger on a bus, as Senator Hanson-Young pointed out.

Those people on a bus are certainly not protected by 18C now. A woman on a bus who gets abused purely for wearing a niqab or for being of a particular race or a particular colour is not protected at all by 18C. The current law is not capturing those who participated in the Cronulla riots or the anti-immigration protests in Melbourne or Sydney, wearing bandannas and anonymously menacing those of other races. Instead, it is capturing students, who were doing nothing more than decrying the unfairness of an Indigenous-only computer lab on social media. That is a very minor slight indeed. Instead, it captures cartoonists like Bill Leak, whose very role is to satirise.

The quote I find most compelling and most chilling in this debate is from the son of the late Bill Leak. In The Australian on 22 March, Bill Leak's son said:

If the supporters of section 18C of the Racial Discrimination Act, such as Bill Shorten and Tanya Plibersek, want to know what real vilification looks like, they need only look at what happened to my Dad and our family. It was genuinely offensive and placed him under enormous stress.

Justice Ronald Sackville said during the joint parliamentary inquiry:

…   …   …

That is exactly what this bill prescribes—the standards of a reasonable member of the community at large.

Rabbi Chaim Ingram is quoted as saying that the Rabbinical Council of New South Wales:

… would have very much welcomed a free and frank discussion on why we feel that certain sections [of the existing legislation] are preventative of free speech in as much as rabbis can’t get up and make a pronouncement on certain moral issues, that might insult [someone].

If rabbis are prevented from speaking on certain moral issues because of the Act, then it would be good to change that Act.

That was in The Australian Jewish Newson 10 April 2014.

We are a proud nation of migrants. We are a mature nation. We are mature enough to hold free-thinking, free-speaking debates. We know what is right and we know what is wrong. The vast majority of Australians stand up for those who are vulnerable. We self-regulate our own behaviour and we lead by example. We value our heritage, our diversity, our prosperity and our progress, but we are also a nation that values our freedoms, and freedom of speech is fundamental, elemental, to all other freedoms. We are a nation that shuns political correctness and rejects the scourge that encroaching identity politics has inflicted on our national conversation.

The changes proposed by the coalition to the Racial Discrimination Act are not something we should fear; they are something we should embrace. A liberal democracy demands no less and a parliament that truly represents its people must do no less. We need a clearer law, a stronger law, a credible law and a fairer law. Most importantly, we need a balanced law that will defend free speech and protect Australians from genuine racial discrimination.