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

Thank you, Senator Birmingham from South Australia. Thank you, Senator Polley from Tasmania. The people we can trust on this issue are very, very significant people who care about their country as much as senators in this Senate chamber—and I will come to that in a moment. As a triumph of parliamentary democracy, this is a good outcome. If the law changes, it falls on each and every one of us to stand up and condemn ignorant comments. These things are very important.

If we do not want to trust senators in this place, who can we trust? When I was researching this issue back in 2013 and early 2014, I was pleasantly surprised to hear that it was Justice French, the immediately past High Court chief justice of our country, who supported reform. I was surprised to see that it was well-known leftist legal mind Julian Burnside QC who supported reform. As the debate developed in our community, others came to the argument as well, supporting the case for reform. I think what changed in the minds of ordinary Australians were two things. As much as the debate in this chamber and other places was important, two things changed the attitudes of ordinary Australians, took the issue out of the academic and theoretical sphere and brought it into their lived experience. That was the experience of the QUT students in Queensland and the experience of Bill Leak, the cartoonist for The Australian. I hear from lots of people that this is not an important issue—that this is not an issue that people are talking about at their barbecues and their local pubs. I disagree. I do not believe that people are standing at pubs and barbecues talking about 18C. I do think that people are standing at barbecues and pubs talking about protecting their values, protecting their way of life and wanting to stop this political correctness that constantly seeps into everything we do in our country. That is what people talk about at barbecues. That is what people talk about at pubs, and 18C is the technical expression of that issue. So this is important; this is a live issue for Australians.

Let me just share with you what Justice French had to say about this important issue. He said—and it was noted in what was called the Bropho case of the former Human Rights and Equal Opportunity Commission:

The lower registers of the preceding definitions [in 18C] and in particular those of ‘offend’ and ‘insult’ seem a long way removed from the mischief to which Art 4 of—

Covenant on the Elimination of Racial Discrimination—

is directed. They also seem a long way from some of the evils to which Part IIA [of the RDA] is directed as described in the Second Reading Speech

That is Justice French, not then the Chief Justice of the High Court—he later became the Chief Justice of the High Court—arguing that the law needed to be reformed.

Julian Burnside QC, a prominent human rights lawyer, publicly stated:

The mere fact that you insult or offend someone probably should not of itself, give rise to legal liability.

My personal view is that 18C probably reached a bit far so a bit of fine-tuning would probably be okay.

Indeed the Australian Human Rights Commission itself said in 2014 in its submission to the Attorney-General's Department on the original exposure draft of the freedom of speech repeal of section 18C bill of 2014 that it considered that:

… the legislation could be clarified so that it more plainly reflects the way in which it has been interpreted in practice.

In addition to that, Sarah Joseph, Director of the Castan Centre for Human Rights at Monash University goes on to say:

… the prohibitions on that which offends and insults, even on the basis of race, go too far. Feelings of offence and insult are not serious enough to justify restrictions on the human right to freedom of speech ... It is true that the terms, 'offence' and 'insult' have been interpreted so that they mean more than 'mere' offence and insult. It is arguable that judicial interpretation has saved these provisions from actually breaching the right to free speech. However, the law should mean what it says. If 'offence' and 'insult' do not mean what they say, the prohibitions should go.

Everywhere you turn in this debate, I would argue that the case for reform has got stronger and stronger and stronger. It has got stronger amongst indeed those at the highest levels of our legal profession. I would argue that across the community the case for reform has got stronger and stronger. Indeed the case of the QUT students and the cartoonist Bill Leak has added to that strength. I would also note that it is not true to say that opponents of reform are to be found in Australia's ethnic communities—that is not true. What is offensive is this idea that Australia's ethnic communities are homogenous in their view to free speech. I would argue that some of those people who have come to Australia as new Australians understand better than we do the importance of free speech and have probably shown much more courage than we ever will in standing up for free speech, in fighting tyranny in their own countries and now they come to a country with such great democratic values as ours, with such a strong parliamentary democracy.

To suggest that people from ethnic communities do not understand the merit of free speech, I think, is offensive. You have only have to look at the record to find out what they say and you will discover that leaders of ethnic communities, members of ethnic communities, are divided, and why shouldn't they be? We are divided. Communities have different points of view—that is okay–but to argue that ethnic communities are united in their opposition is just not true.

Warren Mundine, prominent Indigenous man in our country, supports reform. Members of the Jewish community in our country support reform. Members of many other ethnic communities support reform. It might be harder to find their opinion, but it does not mean that they do not have an opinion and it does not mean that they have not had the opportunity to put their view on the public record. Again, that is why the parliamentary inquiry process has been so important, because it has given everyone an opportunity to put their view on the public record, and a body of evidence has emerged.

Like I said, I have spoken many times on this bill. I congratulate senators and members of the Parliamentary Joint Committee on Human Rights for the way that they conducted themselves during the inquiry. Whatever happens tonight, whatever happens tomorrow, there is a substantial body of evidence that says that reform is necessary, that reform can be done. I would argue that this has been the right process. I am proud to have been involved thus far, and of course whatever reforms we agree to tonight will be tested—will be tested in the Human Rights Commission, will be tested more broadly in the community—but we can have faith that Australians can live up to the very, very high expectations that we have enjoyed around the issue of free speech in our parliamentary democracy.