Stirling Griff (SA, Nick Xenophon Team) Share this | Hansard source

It bothers me that I even have to speak today on such a confected problem. We are debating a bill that has, at its heart, a change that is simply not necessary, as our courts have proven time and time again. The government is proposing to amend section 18C of the Racial Discrimination Act 1975, to allow people to offend, insult and humiliate others on the basis of their race, religion or skin colour, because it thinks the current laws set the bar too low—that boggles the mind. How does this government feel it is appropriate to, in effect, sanction the public humiliation of another person? Instead, it wants to set the bar to what it believes is a more appropriate standard of harassment and intimidation.

In the government's eyes, it is not enough that someone is made to feel like a lesser human and have their dignity and self-worth stripped away by insulting slurs and hateful words and actions—there has to be some higher level of fear and torment. Imagine how that plays out. Imagine being a new migrant, for instance, and being publically humiliated by a person spewing racial or religious hate, who verbally attacks you in front of your young children—children who see you as a hero. The sense of powerlessness and shame this creates would last a lifetime. Imagine the anger that would burn in you when you revisit that moment in your mind. Imagine how unwelcome it would make you feel in your new homeland.

Australia has always prided itself on its multicultural cohesiveness. We are a land built on migration where people of different nationalities, ethnicities and religions have come together to build a modern and peaceful nation. Underpinning this has been, in essence if not always in practice, a respect and tolerance for each other. The very same people who champion free speech and want to change 18C would no doubt also demand that migrants assimilate and take on Australian values. And yet, how can any vilified migrant do this when that vilification only serves to create a sense of exclusion that inhibits them from freely participating in community life? This pointless and mean-spirited attempt to diminish 18C sends the message that a cohesive multicultural nation is no longer important and that the relative harmony we enjoy is not worth protecting. It fails to recognise that free speech is not a hate-filled free-for-all. The message it sends is that it is okay to strip away civility and to insult, offend or humiliate another person without repercussions, and that anyone who thinks otherwise is politically correct or overly sensitive. Frankly, this can only ever be the view of someone who has never experienced vilification based on their race, religion or skin colour, and who is in the convenient position of never having had to seek the protections of 18C.

What has been largely ignored in this debate is that exemptions in section 18D are a very broad and strong defence to claims brought before section 18C. This begs the question, in what ways have the courts, guided by the current laws, failed us? They have repeatedly shown that they do not tolerate vexatious claims. You cannot sue over hurt feelings. So, I ask again: how have the current laws failed us?

In his 2014 PEN essay on the freedom of speech and Australia's Racial Discrimination Act, the Race Discrimination Commissioner wrote:

Any debate should also be based on a sound understanding of how the Racial Discrimination Act in fact operates. There are numerous points of misunderstanding—for instance, the oft-made claims that racial vilification laws criminalise hate speech or involve a form of state censorship. The law as it currently exists involves neither of these things. Moreover, courts have interpreted the law only to apply to those acts that cause profound and serious effects, as distinct from hurt feelings.

The case for changing the Racial Discrimination Act has not been made. There is no compelling evidence that the law has a chilling effect on freedom of expression in Australia. A weakening of racial hate speech laws may have the effect of emboldening a minority of Australians with bigoted views. To those who would champion a right to be a bigot, we should ask: must this supposed right outweigh a right to be free from the effects of bigotry?

The Human Rights Legislation Amendment Bill 2017 also seeks to add the objective test of whether an act is reasonably likely to harass or intimidate a person, or group of persons, as assessed by 'a reasonable member of the Australian community'. It completely ignores that the courts have been applying the law according to a much more sensible objective standard, which is to assess the offending act in light of how reasonable members of the same community would feel, not some blokes down at the pub who might just think, 'Toughen up, mate.'

The Human Rights Law Centre put it so eloquently in their recent submission to the Senate Legal and Constitutional Affairs Legislation Committee, where they said:

It is racial and ethnic minority groups that suffer the impacts of racism, not the Australian community as a whole. We cannot, and should not, expect a reasonable member of the Australian community, who has never had the distressing and degrading experience of being called a 'coon', a 'black—

and I won't say the word because it would be in breach of the standing orders—

a 'terrorist' or being told that 'Hitler should have finished you', to understand the impact of such statements and the fear and sense of exclusion they create.

Both the Law Council of Australia and the Human Rights Law Centre argue that the current test is an adequate one and changing it could have unintended consequences such as reinforcing prejudice, particularly against unpopular racial minorities.

As I have said, the courts have shown that they will not entertain a case that is brought by an overly sensitive person or group. This has been amply demonstrated in the QUT case, where the Federal Court decided the three university students had no case to answer for their flippant comments and Facebook post, and that the Human Rights Commission should never have pursued it. What this highlighted for us, however, is that there are flaws in the system before cases even get to court. This is where we should look to change. My colleagues and I want to see strong reforms to the process because the process has, in effect, become the punishment.

Such reforms will go a very long way in dealing with concerns that have been expressed about 18C. It is important to also note in this debate that section 18C is not a new provision. It was inserted into the Racial Discrimination Act 1975 over 20 years ago, in 1995. This was in response to recommendations from major inquiries, including the national inquiry into racist violence and the Royal Commission into Aboriginal Deaths in Custody. These inquiries found that racial hatred and vilification can cause emotional and psychological harm to their targets and reinforce other forms of discrimination and exclusion. They found that seemingly low-level behaviour can soften the environment for more severe acts of harassment, intimidation or violence by effectively condoning such acts.

Since then, the courts have consistently interpreted sections 18C and 18D as maintaining a balance between freedom of speech and freedom from racial vilification. In various decisions, the courts have held that for conduct to be covered by section 18C, it must involve profound and serious effects not mere slights. The courts have also found that section 18C is an appropriate measure to implement Australia's obligations to prohibit racial hatred under the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights.

As the Law Council of Australia president Fiona McLeod told ABC NewsRadio's breakfast program on 21 March this year:

The cases coming before the court have been decided by some of our most senior officers and they decided that the provisions and protections of the various sections; that's 18B, C and D of the Act read together, provide protections against the most profound and serious effects.

The parliament often responds to judgements of the courts that highlight a particular anomaly, flaw or inconsistency with the law. The native title amendment bill is an example of this process in action.

In the case of 18C, the courts have not criticised the wording or said that they do not strike the right balance between freedom of speech and protection from racial vilification—far from it. When taking calls on this issue, some of my staff told me that members of the public would refer to the QUT case and the late, great Bill Leak as to why section 18C needs to be changed. What these callers are witnessing is a result of a flawed process not a flawed law. These cases should never have progressed as far as they did and we are pleased that this bill at least seeks to ensure that the commission's processes will be improved to ensure they are fair to all parties and their claims that have no merit cannot proceed to the courts.

Fiona McLeod in the same interview with ABC NewsRadio said:

… the Human Rights Commission needs a mechanism so that it is able to deal with these disputes early, and we certainly support the strengthening of those provisions which let it, for example, decide that certain cases do not make the threshold of the current provision and to strike them out.

To sum up our position, my colleagues and I believe a case has been made to change the Australian Human Rights Commission's complaints handling processes, but we cannot in good conscience support any changes to the wordings of section 18C. That is why we are moving an amendment to remove schedule 1 from the bill. As the law currently stands, 18C strikes the right balance between freedom of speech and protection from racial hatred.

I note the government has made further amendments to schedules 1 and 2 of the current bill. As we do not support any changes to section 18C, I can indicate that we will not be supporting the amendments listed on sheet HV208.

The amendments listed on HZ118, according to the supplementary explanatory memorandum, address technical issues in the bill to ensure that the government's policy intention in improving the commission's complaints handling processes can be properly implemented and do not impose a disproportionate regulatory or administrative burden on the commission. These amendments will also ensure that complainants, respondents and the commission itself have a clear understanding of their rights and obligations throughout the complaints handling process. They are a welcome improvement but more work certainly needs to be done.

The Law Council of Australia believes that not all the issues have been addressed, and we remain concerned about two key issues. Firstly, the transitional arrangements outlined in the government's amendment apply to complaints made prior to the commencement of the relevant provisions. This is a change from what was originally proposed. It would have an impact on approximately 2,000 complaints that are currently before the commission and would require an unnecessary diversion of the commission's resources. We support the original transitional and application provisions contained in the bill and urge the government to reconsider its approach.

Finally, item 57 of the bill, relating to costs, should be removed. The court already has a discretion as to costs and can have regard to offers to settle. This amendment is unnecessary and should be removed.

We also have other concerns that are not addressed by this bill or the new amendments. My colleague Senator Xenophon asked Professor Gillian Triggs at the Legal and Constitutional Affairs Legislation Committee inquiry into this bill about any confidentiality requirements when complaints are before the commission. We are concerned that there may be cases where a complaint is made, particularly when it is frivolous or vexatious, and the complainant then publicly names the respondent, or vice versa, which would lead to added and unnecessary distress. Professor Triggs took this question on notice and the commission provided further information, which we appreciated. The commission stated that there is currently no obligation on parties not to disclose the fact that a complaint has been made or the details of the complaint. In general, increased publicity tends to make it more difficult for the parties to achieve a conciliated outcome through the commission's processes. The commission considered that there was a potential benefit in Senator Xenophon's proposal that confidentiality be maintained up until the end of the conciliation stage. This is a proposal that we want to explore in more detail but, unfortunately, time is not something we have a lot of this week.

As I said at the outset, the Nick Xenophon Team has been consistent in calling for reforms to the complaints-handling process. The Senate should not rush this legislation through for the sake of political convenience. We need to make sure we get this right.