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

Senator Back, the simple answer to the first part of your question is: because the inclusion of the word 'harass', which is a grievous shortcoming in section 18C as it currently stands, is intended to overcome that shortcoming. The concept of harassment, which is very commonly used in antidiscrimination statutes, both in Australia and overseas, captures the notion of conduct which impinges on a person in an unwelcome manner so as to limit or restrict their freedom. It is in a sense broader than 'intimidate', because the concept of intimidation involves causing fear in the person to whom it is directed. It is possible to imagine conduct that constitutes harassment but does not constitute intimidation, because not every person who is harassed is made fearful, but that does not mean that their freedom, their amenity, their life is not in some way vexed or annoyed or a nuisance is made to them by the conduct concerned.

In relation to your second question, Senator Back, it is not an element of this provision that the offender, the person whose conduct is prohibited, has any particular motive. There is no requirement, as in the criminal law, of a guilty mind, as it were. There is no requirement of malice. There is no requirement that the conduct be other than conduct which meets the definitions of 'intimidate' or 'harass'. But the reaction of the person who is the victim—and this goes, so far as 'harassment' is concerned, in part to Senator Bernardi's question—is relevant, so that, if a person, for example, were oblivious to or unaware of conduct, it would be difficult to see how that were harassing if it had no effect on them, or intimidatory if it did not cause fear in their mind.

Anyway, the overall answer to your question is: we are trying to bring this statute more closely into conformity with discrimination law best practice, with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. Section 18C, regardless of the rhetorical claims made by those who oppose what the government is trying to do, does not do that. These amendments make section 18C a more fit, suitable and better expressed protection against racism.