David Bushby (Tasmania, Liberal Party) Share this | Hansard source

I rise also to contribute to the debate on the Human Rights Legislation Amendment Bill 2017. I will be the first person to rise in recognition of the advances so plainly manifest in all levels of equality and personal liberty in Western civilisation. No longer is gender, race, religion, creed or any other identifying personal characteristic a significant barrier to aspiring to the heights that one may set oneself in our Australian society.

I also recognise that some gaps still exist which may limit personal liberty and aspiration. It remains incumbent on all citizens and government to be vigilant in narrowing these gaps until they are no longer visible. However, the one area of diversity that is in risk of decline is diversity of opinion or, more precisely, the freedom to express such an opinion without fear of personal recriminations or, as we sadly see all too often, intellectual assault or even bullying of an individual by sections of our society who have disproportional capacity to complete these character assassinations.

In the proposed preface to George Orwell's seminal masterpiece Animal Farm, he wrote:

If liberty means anything at all it means the right to tell people what they do not want to hear.

I am not proposing that the government should embark on radical changes to the statute with regard to protections against discrimination, libel and human rights beyond those proposed in the bill that we are considering today. But I firmly believe that these laws should be appropriately administered to advance and protect the cause of personal liberty in the sense proposed by Orwell and more broadly and that this bill helps to achieve that outcome.

As Nelson Mandela said:

For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedoms of others.

Senators, we live in politically correct times. However, political correctness should never be used as a crutch to stifle the most basic freedom that underpins and underwrites our liberal democracy: freedom of speech. Freedom of speech is the fundamental freedom that provides the ultimate protection against tyranny and against the creeping loss of other rights and freedoms. It is hard to identify any nation that has moved from a free democratic society into an autocratic, tyrannical or dictatorial state without the right of freedom of speech first being encroached.

Freedom of speech ensures that those whose rights are infringed, those whose liberty is curtailed and those who are being victimised have the opportunity to speak out against the injustices being done to them and just as importantly, or even more importantly, allows others to speak up for them. In this place, we should be the exemplar of embracing freedom of speech.

I am sure that all senators support the rule of law, which in its simplest form means that individuals should be governed by generally applicable and publicly known laws and not by the arbitrary decisions of kings, presidents or bureaucrats. Such laws should protect the freedom of all individuals to pursue happiness in their own ways and should not aim at any particular result or outcome. The primary importance of the rule of law is the emphasis it places on certainty, generality and equality in the legal system and on an underlying reciprocity between the state and the citizen. Ultimately, the inherent prize delivered by the rule of law is that it protects citizens from tyranny in that the law is above the tyrant. It is also a key element in a working democracy in that it delivers freedom, which is the essence of democracy.

The most important aspect of the rule of law is freedom of speech. From freedom of speech flows all other freedoms. The ability to speak one's mind, to challenge the political orthodoxies of the time, to criticise the policies of the government without fear of recrimination by the state is the essential distinction between life in a free country and life in a dictatorship. US Supreme Court Justice Benjamin Cardozo, who served from 1932 to 1938, wrote of free speech that it is 'the matrix, the indispensable condition of nearly every other freedom'.

I acknowledge that in Australia decisions that are made from time to time that have the effect of restricting freedom of speech are motivated often if not always only by the best of intentions and not by any sinister agenda to deliver tyrannical outcomes. No doubt the motivations behind the enactment of our current human rights legislation were genuinely well intended, seeking to provide real, needed and appropriate protections against racist actions by some that would cause harm to others. But just because the motivations were pure and the outcomes that the actions seek to deliver are desirable does not mean that the vehicle used to seek to deliver those outcomes is the right one or the perfect one.

I note that the Labor Party has indicated it will oppose these amendments when they come to a vote. The Labor Party's form in recent years has not been good on freedom of speech, as I heard noted by Senator Ryan. Who can forget their proposal under Prime Minister Kevin Rudd mark I to licence and regulate the media? To subject the press to the restrictive powers of a licensor is to subject all freedom of sentiment to the prejudices of a bureaucratic or, worse, political decision-making process and to make that process the arbitrary and infallible judge in all controverted points in learning, religion and government. It removes the right of every free man or woman to publish their opinion and confines that right to just such a person as the government-appointed process may deem proper. I doubt I need to stress the risks to democracy of restricting the freedom of the press and subjecting that freedom to the discretion of government.

Although I noted this as an aside, it does flow into the overall debate surrounding the application of section 18C as it stands, which impacts on the freedom of expression. The notion of freedom of expression is intimately linked to political debate and therefore the practice of democracy. One of the most notable proponents of the link between freedom of speech and democracy is Alexander Mieklejohn. He argues that, since democracy is self-government by the people, an informed electorate is a necessary prerequisite. In order to be appropriately informed, there must be no constraints on the free flow of information and ideas. Mieklejohn says that 'democracy would not be true to its essential ideal if those in power are able to manipulate the electorate by withholding information and stifling criticism'. He acknowledges, as I have already canvassed, that the desire to manipulate opinion can stem from altruistic motives but argues that, even then, 'choosing manipulation negates, through its means, the democratic ideal'. If he is right—and I will contend that he is—it is incumbent on those of us in this place and the other place to fight to protect the right of Australians to discuss complex and challenging issues which may at times include subject matters or even opinions which may be controversial or even offensive to some.

We may take a dim view of a person's opinion on a matter or even find that opinion abhorrent, but that is not in itself a reason to restrict the right of that person to hold or express that opinion. Any perceived detriment from not permitting such a person to do so must be balanced against the desirable outcome of protecting his or her freedoms and liberty and that of the wider community.

Within the spectrum of political correctness, sections of the media, our public institutions and our educational institutions run the risk of falling within the narrow bandwidth of an almost singularity of expression to the exclusion of all other views. I am saddened by the fact that the prevailing so-called 'progressive' view seems too fragile to withstand the robustness of diversity of opinion. All too often we witness seek-and-destroy missions launched against individuals who feel strongly enough about an issue to speak up against the cold winds of the left agenda.

Senators, in this place above all others we must demonstrate the strength of character to allow a diversity of opinion to be expressed. In his Indictment of Socialism (#3), 19th-century author John Basil Barnhill wrote:

Where the people fear the government you have tyranny. Where the government fears the people you have liberty.

And it is liberty above all else that we must strive for.

Almost every major change in our society, whether that be social, economic, scientific or otherwise, comes from dissenters who challenge the existing paradigm. The strong voices of individuals like William Wilberforce rose up against the prevailing majority and ultimately led to the abolition of slavery in Great Britain and her colonies. Whilst I am not a proponent of such theories, the Keynesian revolution led to a radical change in the methods utilised by policymakers seeking to redress the problems of underemployment and underinvestment. Almost every national government has maintained some level of vestigial Keynesian theory in their macroeconomic policy settings.

In scientific discovery we have seen a plethora of paradigm shifts, all possible only because authentic scientists know that we should never fall into the trap of believing that the science is settled. It never is and never should be. If the science were settled, paradigm shifts such as the transition to Mendelian inheritance from pangenesis, the transition to Einsteinian relativity from Newtonian physics and quantum mechanics replacing classical mechanics would never have occurred and the subsequent advances we are all beneficiaries of would not be improving our daily lives. In the case of each of these scientific advances, new scientific endeavour brought about by questioning existing science will inevitably move the realm of human knowledge further into understanding now beyond our comprehension or even imagination. In the same way, sometimes it takes the strong leadership of a minority view to prevail against the dismantling of institutions which have proven to serve our society so well.

The purpose of my comments in the context of the debate on ensuring that the provisions of our human rights legislation are properly focused on fully addressing racially discriminatory behaviour that should be outlawed is to reinforce the imperative that all such laws which inherently impinge on our freedom of speech must be balanced against that freedom and the benefits that it undoubtedly delivers. As Ronald Reagan once said:

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same …

Many of the complex challenges we face in Australia are complex by nature, and by that nature require debate and discussion. Section 18C as it stands can asphyxiate such discussion and, in doing so, frustrate the best intentions of many in our community and, in doing so, undermine the very harmony in Australian society that we all strive for and, indeed, that the legislation seeks to deliver. Let me now turn to the details of the bill.

The Human Rights Legislation Amendment Bill 2017 contains measures that are intended to reform section 18C of the Racial Discrimination Act 1975 to amend the complaints handling processes of the Australian Human Rights Commission under the Australian Human Rights Commission Act and to make minor amendments to that act sought by the commission to enhance its operation and efficiency. The amendments in relation to the complaints handling processes give effect to the majority of the recommendations of the Joint Committee on Human Rights, which examined this in its report on freedom of speech in Australia, which was tabled last month. The bill will amend part IIA of 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 and 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 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.

I would contend that it is hard to contemplate what mischief is intended to be addressed by the Racial Discrimination Act that would not be appropriately addressed by the word 'harass' and/or 'intimidate'. I think the intention of the inclusion of the words 'offend, insult and humiliate' was originally to help eradicate certain behaviours by some of our community which would cause harm to others. Looking at the way the act is written, the reality is that the replacement of 'offend, insult and humiliate' with 'harass', combined with changing the subjective nature that currently applies in the test to a more objective one, will improve the legislation. It will better enable the legislation to ensure that, where there is behaviour that should be outlawed, that behaviour is clear, much easier to understand and better able to be addressed and dealt with.

Particularly on the objective nature of it, we often hear from those on the other side questions like, 'What is it you want to say that you cannot say now under the act?' The reality and the way I see it is that the subjective nature of the test means we just do not know the answer to that. We could be having a debate about complex issues, and there are a number of things in Australian society that are very unfortunate. We see a lot of disadvantage in some Aboriginal communities and poor health outcomes for a lot of Aboriginal people in communities across Australia. We see things that should not happen, and if they were easy to fix we would already have fixed them. They are by nature complex challenges. We cannot fix them easily, otherwise we already would have. In the context of having a discussion about how you move forward to deal with that, people will put forward ideas. We should be in a position where we can have a free and open debate on what is required to actually address these challenges and fix and resolve them. But, in the context of that, it is quite possible that somebody might make a statement which somebody else may subjectively find offensive. That statement may conceivably be a statement which could actually be useful for the debate. But until somebody finds that statement offensive, which is an entirely subjective thing under the act at the moment, we do not know what that statement would be.

In answer to the question, 'What is it you want to say?', you just do not know what people might find offensive, despite the intent of the person saying it, which may be completely altruistic. It might be trying to help, but until that person says it, we do not know if anybody would find it offensive. We need to include a more objective test, one where the standard required to be met before the act is breached would be 'the reasonable member of the Australian community' who is impacted. That way we can create a much more objective standard which people can understand, one which makes it clear to the average Australian when the line is crossed. But if it is completely up to an individual to decide whether they are offended or not, nobody will know where that line is. So I think this is a very worthwhile amendment that should be supported.

Further, the law should provide protection from racial vilification. I agree with that and I have said that already. That is not a problem, and that will remain in the bill. 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. However, the protection needs to be consistent with the right to freedom of speech, as I have already outlined in the first half of my speech. It is fundamental to the strength and health of our liberal democracy. Effective protection against racial vilification need not curtail freedom of speech. That comes back to the balance I was talking about before. However, section 18C in its current form potentially does this, without providing any extra protection from racial vilification. Also, section 18C fails to protect against racial harassment—an essential element of protection against racial vilification. The government considers that the words 'offend, insult and humiliate' do not protect people from racial vilification. Rather, they target the expression of ideas and opinions, particularly those which may be controversial or challenging, as I have already canvassed. Section 18C must be amended to address the disconnect between the ordinary meaning of the words 'offend, insult and humiliate' and the way they have been judicially interpreted.

Why is the government making these reforms? As is widely known now, the government party room has agreed to these reforms because they will strengthen Australia's anti-vilification laws. There are people on the other side criticising us, saying that this is somehow a watering down and is allowing even the removal of hate speech, which is an impression I think some people on the other side are quite happy to allow out there. This is not the case at all. Firstly, this is not about hate speech as such; it is about discrimination. These amendments will strengthen the ability of this act and the Human Rights Commission and those who enforce this act to ensure that harassment and vilification on the basis of race is minimised.

The decision of the party room followed the release of the report into freedom of speech in Australia by the Parliamentary Joint Committee on Human Rights. The government is making these reforms based on certain recommendations of that committee report. It is entirely appropriate that the government introduce legislation following those recommendations, and that is what the government is doing.

There has been a great deal of public discussion. I think this is one of the few subjects in recent times that have been very broadly discussed. It was brought on particularly by the very unfortunate death of Australian cartoonist Bill Leak. That focused the discussion and debate in a way that it had not previously been. That great deal of public discussion has focused in particular on section 18C of the RDA and on the way in which the commission deals with complaints. A number of speakers have already referred to the case of the students at the QUT and the complaint against the late cartoonist Bill Leak, as I mentioned. Both of those were brought by the Human Rights Commission and they brought the issue to greater prominence.

I have already mentioned in my speech that there is a need to strike the right balance. In my view the government's amendments do strike the right balance between protecting social harmony, protecting people from some in Australian society who would seek to do them harm on the basis of their racial background, and mutual respect and the democratic value of freedom of speech, which underwrites our democracy.