Dean Smith (WA, Liberal Party) Share this | Hansard source

The bill that we are discussing here this afternoon is a triumph for our parliamentary system of government, a triumph for the Senate, a triumph for the Senate committee process and, indeed, a triumph for the joint committee process of our parliament. Free speech is an issue I have taken a lot of time exploring. Indeed, much of my parliamentary time over the last two years has been spent on this issue—as well as other issues. This is my eighth speech on the importance of free speech in this country and reform to our free speech laws.

People would not be surprised to learn that people in this Senate chamber have different views about the suitability of the government's amendments to free speech laws in our country. That is actually not important, that is actually not a surprise. What is important, and what we can put our faith in, is the fact that there was a contentious issue and the government, in its wisdom—and I will come to the reasons for this in a moment—did decide to trust the parliament, through the Joint Parliamentary Committee on Human Rights, to explore this issue and canvass the breadth of issues and people's attitude to them.

I note that Senator McKim is in the chamber, as he often has been when we have been debating these points. What happened was that we had a very civilised process—and Senator McKim is nodding his head—where the community got to put their views. I would argue that, during the course of the parliamentary joint committee inquiry, the tempo of the debate subsided a bit, became a bit more civilised, became a bit more rational because people had a forum through which to impart their views. And then the committee—comprising government members, opposition members, the Australian Greens and independent members of the Senate and the House of Representatives—came to a report. Again, people should not be surprised that there were differences of opinion in that report. There should be differences of opinion, because our system of government is a parliamentary democracy, not a totalitarian regime. And what is interesting is that, in that body of evidence that was presented to the committee, there were many things that were actually agreed to by the committee. That is my first point. What the committee report found for itself, based on a substantial body of evidence, was that there was cause for reform of the Australian Human Rights Commission complaints processes. Tick. That was a very good and important outcome—reforms that are broadly endorsed.

Less surprising was that there was a difference of opinion about how the issue of free speech, through the lens of provisions 18C and 18D of the Racial Discrimination act, should be reformed. The government came to a view that reform is necessary. And that is where we are today. We are in the Australian Senate debating the suitability of these reforms because the parliament applied itself to the task, invited community opinions, a body of evidence emerged and, on the basis of that, the government is bringing some proposed reforms to the Senate and we are debating them here and we will get an outcome in the next day or two. That is a triumph for our parliamentary democracy.

Those of us who, like me, have been champions of reform do feel satisfied that, no matter what the outcome is today or tomorrow, a proper process has endured, a substantial body of evidence has emerged and the parliament, being a representation of the people in our community, in the Senate, will make a decision.

I would like to share with the Senate and put into the Hansard some paragraphs of a letter that I wrote to the Attorney-General in October last year, when I advocated for a parliamentary inquiry, when I specifically sought the government's endorsement of the Parliamentary Joint Committee on Human Rights to conduct that inquiry. By way of background, in the previous parliament I had the honour of being the chairman of the Parliamentary Joint Committee on Human Rights. I have some of the scars and some of the bruises to prove my tenure as chairman of that committee. I would not have established a Parliamentary Joint Committee on Parliament Rights had I been in the parliament at the time of its creation. I do not think it is necessary, because I think there are other forums in which to debate and discuss issues around civil liberties in our country—namely, the Senate Scrutiny of Bills Committee. But that is a debate for another time.

In arguing my case to the government that the issue was worthy enough for a parliamentary inquiry and that the Parliamentary Joint Committee on Human Rights was the right forum, I had this to say to the Attorney-General: 'Over recent months, there has been a broadening of community calls for the greater protection of free speech in Australia. This debate has been given added impetus by the prosecution of university students in Queensland on the basis of alleged racial discrimination for comments made on social media, as well as a decision by the Australian Human Rights Commission to launch an investigation of cartoonist Bill Leak and The Australian newspaper on the grounds that the cartoon was allegedly racist. Now, more than ever'—and I was writing at the very end of October last year—'it is appropriate to fully test community attitudes to whether our current laws are adequately protecting freedom of expression in Australia. I am writing to urge the government to give serious consideration to a parliamentary inquiry into the rights and responsibilities that arise from the exercise of freedom of expression in Australia and what improvements could be made to our current laws to optimise freedom of expression in our country.'

That is an important paragraph because what has been missing in this debate is this point: it is not enough just to change the law. That is the easy part, but, if the law should change, it is then beholden on all of us, most particularly those like me, who have been reformists, not just to champion free speech but to jump to the defence of people and condemn those things that could be said or might be said by ill-informed, unwise people trying to do harm. This is not just about giving people a capacity to act more freely with their speech; this is putting a responsibility on each and every one of us to stand up and condemn stupid things and hurtful things when they get said, not just in defence of that free speech. What makes the country stronger and more harmonious is not that people hide behind a law but that people step forward themselves as fair and decent-minded Australians and condemn stupid comments. That is what makes the country stronger, not black-and-white laws in legislation.

Whether or not this piece of legislation is successful today or tomorrow is yet to be seen, but my underlying premise is this. It is not that I think Australians are racist—not at all. I come from the position that I believe that Australians are fair minded, are decent, understand the great merit that multiculturalism has brought to our country and welcome new Australians to our country to start a new life, particularly those who are fleeing from political and religious persecution. The good things and the virtues about our country are the things that make me a free-speech advocate and wholeheartedly support these reforms.

For the record, let me read what the bill will do and what the government is seeking to do:

The Bill will amend Part IIA of the RDA—

the Racial Discrimination Act—

to redefine conduct prohibited by section 18C, to ensure that the defined conduct more accurately encompasses the notion of racial vilification. The words 'offend, insult, humiliate' will be removed from paragraph 18C(1)(a) and replaced by the word harass'. The word 'intimidate' will remain. The Bill will also introduce the 'the reasonable member of the Australian community' as the objective standard by which contravention of section 18C should be judged, rather than by the standard of a hypothetical representative member of a particular group.

The government believes:

The law should provide protection from racial vilification. It should do so in a manner which is consistent with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD). However, this protection needs to be consistent with the right to freedom of speech, which is fundamental to the strength and health of our liberal democracy. Effective protection against racial vilification need not curtail freedom of speech. However section 18C in its current form potentially does so, without providing any extra protection from racial vilification. As well, section 18C fails to protect against racial harassment—an essential element of protection against racial vilification.

I do not expect people to trust Senator Smith from Western Australia, necessarily, nor do I expect them to trust—

Senator Polley interjecting—