Barry O'Sullivan (Queensland, National Party) Share this | Hansard source

Whilst we spoke about many things, including matters of politics, the question of 18C did not dominate any of the conversations. It is only as a result of it being elevated here in this place in a political sense that I have been caused to think through the issue.

My first experience with the question of free speech was in or about 1985, when I had the privilege of spending nine months in the United States, four of which were at the FBI Academy in Quantico, south of Washington, where I was occupied with looking at the issue of serial offenders on behalf of the police forces of Australia. In the course of that, I came across my first experience with an organisation called NAMBLA, the North American Man/Boy Love Association, which was a public group who occupied offices in both Washington and New York. They were funded, obviously, by demophiles and paedophiles. Through their right to exercise free speech, they were able to operate with impunity to advocate for sexual relationships between adults and children who were in puberty—so we are talking about young men. Indeed, they also made the case where young women were concerned. They were promoting that when a youth turns 10, 11 or 12—in that sort of time zone—they should be allowed to have carnal relations with an adult or another individual of an age not specified.

I have to tell you that, as a young fellow from Queensland, whilst I had not lived a sheltered life—I had by then been a detective for almost seven years—I found it abhorrent, so much so that I did a speech. International students were invited to do a speech in the auditorium on Wednesday nights before the movie. There were about 800 seats in the auditorium, and they were always occupied. I still have a copy of that speech where I spoke about freedom of speech. As far as I was concerned, I did not think that it extended to the NAMBLA organisation. As you might appreciate, the speech was provocative. Many of my fellow students at the academy decided to share their views with me, most of them very strongly in favour of freedom of speech, notwithstanding that they recognised the abhorrent nature of this particular organisation.

That was the first occasion in my life where I turned my mind to the subject of free speech. I came to understand this principle that I can violently disagree with almost everything that someone has to say, yet we in a free society have an obligation to fight for the right for them to say it in the first instance. I get the freedom-of-speech thing.

I have to say that, as I grew up and in my life's experiences generally—except for exceptions as a young student and the juvenile behaviour of some with their language—I have not been exposed heavily to events of racism, notwithstanding that I was an active police officer for 15 or 16 years. I suspect that has much to do with the fact that most of my service was in country and remote parts of my home state of Queensland. I have never lived in the city. I have always lived in regional parts of my home state and country areas. I have been largely associated with communities and with societies and active economies that have to do with rural affairs.

I had a lot of friends as I grew up who were young Aboriginal men. I married a girl from Barcaldine, where there is quite a significant Aboriginal population. In the many, many dozens of occasions that I was out there I had the privilege of meeting and becoming friends with many of the friends of my father-in-law. They were Aboriginal men with whom he had been droving and shearing—and I imagine that was your experience too, Senator Williams—over a long period of time. There was often banter. It was banter that would, I think, attract the attention of the existing legislation prima facie, but it was not banter that offended. It is the subjective nature. I have often been referred to as fat and ugly. It has been frequent. Due to the fact that I am fat and ugly, it was difficult for me to take offence to the notation, but there may be others who would.

What attracted me, as I considered the circumstances of these changes in the legislation, was this subjective test. No matter what else we might think about these changes being proposed by our government, we are going to at least transition to a more objective test, the test of reasonableness, which is a word not foreign to the judicial system. It is used as a standard to validate in criminal cases. Here is an area where for 16 years I had an obligation to present evidence to courts to prove beyond reasonable doubt any fact that I wanted to rely upon as an element of a charge of a prosecution, so I am very familiar with this question of 'reasonable'.

That goes to the very heart of why we have juries with 12 people. The courts will educate them in situ on what this term 'reasonable' means. The standard is, at least in our country, that all 12 of them have to agree after they have each individually—separately from each other—applied their test of reasonableness. It is not just a case that seven find that a reasonable proposition and five do not; all 12 of them have to find that. This process, whilst not perfect, has served this nation and its criminal justice system well, and indeed it is in most Western societies. It is a system that we inherited from the mother country, and it still applies there.

There is a lovely old saying that an empty Coke bottle to one person is an empty Coke bottle, but to the other person it is 5c. That is what subjectivity does to somebody. There is no room for that, as far as I am concerned, in a judicial system, in this case.

Imagine if we were to get a bit sensitive in this place. There would be complaints between the hours of 2 pm and 3 pm most days. I think that, on an active day when I am on my game, there could be 30 to 50 complaints lodged about me, and I am not one of the more active offenders.

Senator Williams interjecting—

No, I am quite conservative. Sometimes, Senator Williams, I do get a bit excited, I will admit, but there are others. So you could leave here after question time with a couple of hundred complaints under this act, if we were to deal with 'insult and offend', and apply a subjective test.

The thing that did move me towards these changes—there have been a couple of fairly prominent cases mentioned, and I will be at risk of repeating some of the observations that have been made—was the Cindy Prior case, with the three young students from QUT. Without going to the substantive allegations, which on face value seem to me, even though I have said I have limited exposure to racism, to have been on the extremely low end of the scale, even in my assessment of things. What we saw was that the process in itself became a punishment. Not only that, the process offended the principles of natural justice. These people were under investigation. There were active things happening about them, that were to lead to them finding themselves in a civil suit, and they were not even advised. What makes it even more insidious is that some of the activities were funded by the state. Some of these activities were activities of the Human Rights Commission, which is funded by this very place. I could not think of anything more offensive than that.

When they did become engaged and became aware—I heard Senator McGrath mention that they were represented on a pro bono basis. I have seen estimates from people who think that, even in their circumstances, they would have been confronted with legal fees of about $10,000. I must admit, when I first read that I thought it was light on. I am yet to have an engagement with a lawyer for sub $10,000, I can tell you, and I have needed them in some fairly minor circumstances myself. Let us add this up. If these three students had not had pro bono representation there is a cost of $30,000 to somebody, perhaps even the state—it is state versus the state if someone has attracted legal aid and the Human Rights Commission is on the other side. That is like punching yourself, to be honest. Then these young people, I understand, settled for $5,000. So we are now at $45,000. This is not just about the money, but this story really shows how unreasonable the process is, how impotent the process is—in fact I think the word 'silly' can be applied to it.

I have had my time at estimates with the Human Rights Commission. By jiminy, that is like trying to pull a hair out of your ear with a pair of canvas garden gloves on. You cannot get any information out of that mob. Only the good Lord knows how much they would have spent on the process, but it would not have been cheap. So I think we are well over $100,000 where some students commented on what they saw as evidence of segregation. Indeed, I was astonished to find there are these segregated areas where you need to declare, in this case, your ethnicity, your nationality or that you are Indigenous before you can enter into the space. That place used to be a bar that was reversed. They could not walk in there now. We could not walk in there. This is just stupidity on skates.

I am not going to go over the Bill Leak and Andrew Bolt cases, but I think it was right for those who hold a passion in this place to visit this issue and to revisit it. There have been some people—Mr Acting Deputy President Bernardi, you are one of them—who have championed in this place for a considerable amount of time.

I heard a contribution from one in the Labor Party talking about groundhog day, about how members of our side of the parliament have persisted in this to bring this to something, to bring this to a test, to bring this to a vote in this place. Sometimes in this place I feel like I am in a parallel universe. I was here not three days ago listening to a debate where these people were supporting the head of the ACTU, who said, 'Protest! Be active! Activate yourself and go against laws you do not agree with. Continue! Get the right to vote for women. Get the right for negro citizens in the United States to join us in a bar or on the bus. Fight for it! Continue to fight!' If as a legislator you do not have the courage to continue to fight and test the question around important issues such as this, you should pack your bags and go home. I think part of Senator McGrath's message was that there are people in this place—I could name them, alphabetically—who really fire up in protest when a statement is made, an idea is advanced, a debate is had or a question is tested and they do not like the potential answer. By jiminy, it gets their bloody hackles up. That is where some of my best fun comes. I know exactly what button to push on some of these people, and they will light up like a Christmas tree.

I think that the Leak case, the QUT case and the Andrew Bolt case have magnified the interest in this matter. Without breaching the confidentiality of our joint party room, I have heard passionate arguments on both sides of this question. We have members who live in communities where a high number of ethnic people live, and they hold a strong view about this.

I could talk for a long time on this subject, now that I have taken interest in it, but let me close by saying this. These changes are going to mean that there needs to be active behaviour—not a throwaway line, not a sledge on a football field, not a schoolyard tussle between two kids where some unfortunate statements are made; these changes create a need for activity—for you to be exposed to prosecution under this legislation. The legislation also deals with the process, which is important. I said earlier that the process itself was a punishment. If you were one of those students, it has taken 18 months of your life and will cause reputational damage long after you have left your university. Thirty years later, when your name comes up in conversation, you will not be remembered for your intellect, your power as an athlete, your student politics behaviour or your contributions to the newsletter; you will be remembered as one of the people who was prosecuted on those flimsy circumstances. I think this legislation is important, now that I have had time to consider it. It is legislation I can recommend that my colleagues support in this place.