George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

This has been a very important debate. I want to wind up the second reading debate by turning to first principles—because although most of this bill is about process issues, about how the procedures of the Australian Human Rights Commission can be reformed, most of the debate on the second reading has been on the question of the government's reforms to section 18C. So let me begin my contribution to the second reading debate by addressing the question of why the government does feel that it is important to reform section 18C.

It is a hallmark of a free and democratic society that all of its members have the right to voice their opinions. That is what freedom of speech means. That freedom of speech is integral to the operation of a liberal democracy has been recognised by the High Court when it recognised that freedom of political communication was a necessary implication of Australia's Constitution. In 2004, Justice Michael Kirby, in Coleman v Power, put it this way:

In Australia, we tolerate robust public expression of opinions because it is part of our freedom and inherent in the constitutional system of representative democracy. That system requires freedom of communication. It belongs as much to the obsessive, the emotional and the inarticulate as it does to the logical, the cerebral and the restrained.

Yet, as we know, people have widely differing views. As the great American judge Oliver Wendell Holmes said more than a century ago in his famous opinion in Lochner v New York:

A Constitution … is made for people of fundamentally differing views.

As both Michael Kirby and Oliver Wendell Holmes recognised, every citizen of a democracy, whoever they may be, wherever they may stand on any given issue, has an equal and fundamental right to hold and to express their views. And, however fundamentally or profoundly others may disagree with or disapprove of those views, we all, as citizens of a democracy, have an obligation to respect the equal right of every other citizen to hold and express their views. As our greatest Prime Minister, Sir Robert Menzies, said in one of his Forgotten People speeches in 1942:

Let us … remember that the whole essence of freedom is that it is freedom for others as well as for ourselves: freedom for people who disagree with us as well as for our supporters; freedom for minorities as well as for majorities … Most of us have no instinct at all to preserve the right of the other fellow to think what he likes about our beliefs and say what he likes about our opinions. The more primitive the community the less freedom of thought and expression is it likely to concede.

The history of liberal democracy is the history of the struggle for freedom, and that struggle has many heroes. In fairly recent memory, one of those heroes was the novelist Salman Rushdie. This is what he said:

… one of the problems with defending free speech is that you often have to defend people that you find to be outrageous and unpleasant and disgusting.

But that is the price we pay to live in a free society. We cannot demand for ourselves a greater right to express our opinions than we are prepared to concede to any other citizen, regardless of how objectionable their opinions may be to us. In the words of Noam Chomsky, a great hero of the left whom I am not often given to quoting:

If we don't believe in freedom of expression for people we despise, we don't believe in it at all.

That is why I said, in the first speech I ever gave in this chamber:

… a liberal society is only worthy of the name if its citizens enjoy an absolute right to hold, and to express, opinions which other members of society find outrageous. Any attempt to limit that right, whether by actual censorship of opinions or by the insidious new cultural tyranny sometimes called 'political correctness', is a fundamental violation of a free society. For as long as I sit in this place I will defend the absolute right of all citizens to the free expression of their opinions—no matter how unfashionable, ignorant or offensive those opinions may seem to others.

That is where I stood 17 years ago and that is where I stand tonight.

We see the clash of fundamentally different views on display every day here in the Senate. The very purpose of parliament is to bring those views together, as representative of the whole Australian people, and engage in a contest of ideas as we debate the great issues of the day. Sometimes, as we debate those ideas, we will say things that are offensive to others, or insulting, or even humiliating. That is partly because one person's ideas may themselves be offensive to a person who has a completely different point of view, and sometimes because in making our case we use words that may hurt the feelings of others. That is the way democracies work. That is why we proudly describe our democracy as robust. In a democracy, it should never be a reason to censor somebody's participation in debate that others may feel offended, insulted or humiliated by what they say.

What political cartoon, for instance, does not humiliate its subject? That, in a sense, is its very purpose—to make a point, sharply, wittily and memorably. That is the essence of satire. That is something that the late, great Bill Leak, whose spirit, in a sense, presides over this debate tonight, knew better than anyone, which is why his cartoons were so penetrating and so effective. It was something the cartoonists at Charlie Hebdo knew too, which is why they were the target of authoritarians and fanatics, who slayed them because they dared to exercise their right to free speech.

Yet section 18C of the Racial Discrimination Act specifically prohibits the expression of views merely because they may insult, offend or humiliate. It is political censorship, pure and simple. A law like that has no place in a free country. It is not to the point that section 18D provides certain carve-outs or exemptions. There should not need to be exemptions from a prohibition on free speech, because free speech is a fundamental human right which should never be censored in the first place. And, of course, whatever the exemptions, the very existence in our law of a provision like section 18C has a chilling effect on freedom of speech which can never be measured but is, inevitably, harmful.

Nor is it to the point that the limitations on 18C apply only to speech that concerns race, colour, or national or ethnic origin. Politicians cannot not loudly proclaim their belief in freedom of speech and, at the same time, ring-fence one area of public discussion—discussion about race or ethnicity—and say that freedom of speech principles do not apply to them. And, yet, that is the very thing opponents of these reforms have sought to do. That was the great vice in the attempt to censor the famous Bill Leak cartoon, which drew attention to an undoubted and severe social problem—the neglect of Indigenous children by delinquent fathers—and yet was said to fall foul of section 18C merely because it related to the question of race.

Indeed, it is the crowning irony of this debate that those who champion section 18C have actually in this very debate attacked those of us who favour reform, because of the colour of our skin. When on Tuesday I said that I did not believe that Australia was a racist nation, what did Senator Bilyk say by way of interjection? 'Coming from a white man,' she said. Senator McCarthy, in her contribution, said that I would not understand the issue because I was 'a white man growing up in Petersham', and Senator Di Natale said that this bill 'has everything to do with allowing a very small group of very privileged, largely older white folk in this place to be more racist than they might otherwise be.'

Those remarks are, of course, deeply offensive and insulting. It is deeply offensive and insulting to me for Senator Bilyk and Senator McCarthy to suggest that the reason I support this bill is because of the colour of my skin. It is even more offensive to everyone in this chamber for Senator Di Natale to say suggest that older white folk in this chamber support this bill so as to allow them to be—in his words—'even more racist than they might otherwise be'. But, surely, it shows how impossibly weak the argument is of those who argue against reform of section 18C that, in order to make their argument, they have to engage themselves in the very conduct which section 18C outlaws: to offend and insult those of a different point of view because of the colour of their skin. And, yet, that is what they have done.

The difference is: I do not seek to censor Senator Bilyk, Senator McCarthy or Senator Di Natale, offensive and insulting though their language is, because, like Michael Kirby and those others whom have I quoted, I accept that, in a robust freedom-loving democracy, it is never a sufficient reason to censor another point of view either because it is offensive or because it is expressed in offensive language.

This is not primarily a debate about race; it is a debate about free speech. Even if it had been a debate about race, it no longer is since the Labor Party has now said that it would seek to broaden section 18C to cover religious beliefs—that is what Dr Anne Aly said only two days ago, and she is not a lone voice. In 2012, the Labor Party Attorney-General Nicola Roxon released an exposure draft of amendments to anti-discrimination law which would have applied section 18C to some 18 so-called protected attributes, including, incredibly, industrial history, political opinion and social origin. How in a free country can we have a debate, if it is impossible to say anything that might offend another person on account of their political opinion? The answer is: if we were to do so, we would not be a free country any more. I am not a great believer in floodgate arguments, but I am bound to say, given that we know where the Labor Party's mind is on this issue and where a future Labor government may take us, the section 18C debate takes on an even more serious and indeed sinister significance.

Coming back to section 18C, as it currently stands, I have explained why the government is moving to remove the words offend, insult and humiliate because they impose an impossible burden upon the freedom of expression, the freedom of speech which, as I say, is a hallmark of a liberal democracy. If there is anyone left in this country who sincerely believes that section 18C should not be reformed, let them ask themselves this question: what kind of racial vilification law fails to prohibit harassment? Those who oppose this reform should ask themselves this question: what is the conduct that they would prohibit which is not already caught by the concepts of harassment and intimidation? It can only be the expression of ideas and opinions. Yet the one thing a free society must never do is to censor the expression of ideas and opinions. Anyone who is prepared to do so, in the name of whatever other value, cannot pretend to be a believe in freedom of speech.

The amendments the government will move will ensure that Australia is better compliant with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. Almost every country in the world—some 178 nations—is party to that convention. Article 2 obliges the states party to 'prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation'. How revealing is it that none of the opposition speakers against this bill have been able to point to a single country whose domestic law contains a provision expressed in the terms of section 18C, prohibiting behaviour merely because it is offensive or insulting? Do you know why? Because there is not one. Not one nation on earth which seeks to protect against racism gives effect to the convention against racial discrimination by the use of that language. Those who foolishly say that this amendment gives a green light to racism need to explain why not a single country in the entire world has a section 18C.

The reforms to section 18C add the word 'harassment' to the word 'intimidate' as prohibited forms of conduct. That does not raise free speech issues. Intimidation and harassment are not exercises of free speech. Rather, they are and have always been acknowledged to be species of unlawful conduct. The fact that that conduct might take the form of spoken or written words is beside the point. To intimidate another person—in other words, to threaten them or to cause them fear—or to harass another person—in another words, to vex, to annoy or to attack them—is to intrude upon the other person's freedom itself. Such conduct has nothing to do with freedom of speech, and its prohibition is entirely justifiable both to protect freedom and to protect social order. That is why I have always believed that there is no inconsistency whatever between effective, appropriately worded racial vilification laws and the robust defence of freedom of speech, and that is the principled reason why the government is moving to reform section 18C and, at the same time, to strengthen its antivilification provisions and to remove its anti-free-speech provisions—not inconsistent objectives but complementary ones. (Time expired)