Cory Bernardi (SA, Australian Conservatives) Share this | Hansard source

I do not mind standing here and saying unashamedly that I am a freedom lover. I believe that there should be less government. I believe there should be lower taxes. I think there should be more self-reliance by every member of our community, that we should have freedom of thought, freedom of worship and freedom of action. But action, of course, has consequences. That is why we have the rule of law. But some laws are just plain wrong, because when they were considered no-one anticipated how they would be misused and abused to corrupt the original intention. Section 18C of the Racial Discrimination Act is one of those examples. In fact, it is the quintessential example of bad law, of law that, no matter how well intentioned when it was formed and brought in, has been misused because it is subjective and it is oppressive and because the process attached to investigating it is absolutely rotten to the core. So I support the government's changes contained in the Human Rights Legislation Amendment Bill 2017. Belatedly, the government has been dragged—kicking and screaming, I should say—to dealing with the misuse of section 18C of the Racial Discrimination Act.

The key offence of section 18C is that it creates an offence for insulting or offending someone else. It means that the complainant does not even have to be insulted or offended for themselves. They can take insult and offence on behalf someone else. That is simply preposterous. It is akin to me saying, 'I am sorry, I am going to lodge a complaint and drag someone through a tribunal, court or legal process because I think you might be offended by what someone else has had to say.' I regret to say that I could not do that through section 18C of the Racial Discrimination Act, because apparently it only applies to some races. It does not apply to everyone, because we have had Senator Leyonhjelm lodge a complaint about being called an angry white man, but that was dismissed. I can only imagine if, instead of white, there was another colour used or if it was about a woman that would find its way into the complaints tribunal. I do not have any doubt about that. Even the process attached to these complaints—spurious complaints and subjective complaints—is rotten, because it only applies to certain people in our community. That much is very, very clear.

We have to ask ourselves how we can justify the misuse of section 18C of the Racial Discrimination Act, which has been applied in such a blunt and unjust fashion in recent times. I have heard no-one in this place or out in the broader community who is able to justify its misuse in the case of the students from the Queensland university. No-one can justify it, because it is rotten to the core. We had a circumstance where some students walked into an unoccupied computer lab in a Queensland university. They were told to go, because their skin colour and ethnicity were wrong. They then went onto Facebook, where one wrote, 'Fighting segregation with segregation.' Someone else said something along the lines of 'where's the white supremacists' lab?' They may be comments that people do not like, but the person who kicked them out decided to this was a path to profit and lodged a complaint saying they felt insulted and defended, and seeking $250,000 worth of compensation for booting some white kids out of an Indigenous lab. That is an injustice, and the fact that it was entertained by those people in the Human Rights Commission for many years—they did not even tell the people who were the subject of this complaint for about 14 months—is an indictment of the process. It is an indictment of Professor Triggs and her comrades in the Human Rights Commission, who have done an unbelievable disservice to people in this country. And still they appear at Senate estimates doing the Pontius Pilate: washing their hands of it and saying, 'We've done nothing wrong.' They have done a heck of a lot wrong. They have done an unbelievable disservice. The simple fact that these students, the ones who did not pay to Ms Prior the $5,000 compensation which was her price for go-away money, had to engage lawyers and fight this fight and battle for three years and had to go to court to have it dismissed. Those on the other side of this chamber say, 'That proves the process works.' Clearly, they have never had to fund their own court defence. Clearly they have never been dragged through the courts, have never had to enter into mediation and engage lawyers on such spurious actions. It is debilitating. It can destroy people's confidence. In the case of one of these Queensland university students it destroyed his desirable career, because he thought he would be forever labelled a racist.

Everything that is wrong with section 18C has been demonstrated by that case. Yet those on that side of the chamber do not want to know a thing about it. They are in denial, and that is part of the problem we have in this country. We have a group of people who are using laws like section 18C, their own denial and their own compartmentalisation of politics as a method of shutting down debate, of shutting down discussion and freedom of speech, of denying freedom of choice. I lay this directly at the feet of the left side of politics, not in a partisan political manner but by saying that their desire to pursue identity politics and not to see Australians as one homogenous group but to compartmentalise them into people broken down by differences of race, religion, gender or sexuality has done our entire country an enormous disservice. They have cultivated a culture of victimhood, an ideology where there is a grievance industry perpetually looking to be outraged, to stifle others from pursuing what I think are very reasonable contributions to public debate.

There is a problem with that, of course. Those on the left side of politics should be very careful because, whenever you are feeding the crocodile all the things you do not like, eventually you run out of them, and the crocodile of political correctness and victimhood ideology will ultimately consume you too. Within that culture of leftism, where they are identifying victims, there is always going to be a hierarchy of victimhood, and, as I said in my maiden speech in this place, we are going to be forced to choose whose rights trump other people's rights, which rights should prevail. That is exactly what we have got happening here. The culture of victimhood is about some rights subjugating others, and it is doing a disservice to our entire community.

Section 18C clearly needs reform. I have sponsored two bills in this place that were very simple bills to remove the two words 'insult' and 'offend' from the section so that there is less subjectivity. But the government's bill in some ways goes even further, in the sense that it also reforms the process attached to investigating complaints. I think that is a very worthy step forward, but there are also some problems with the government's approach, which I will be seeking to amend during the committee stage. We need to stop section 18C effectively being a 'hurt feelings' test. We need to stop it from being used, or misused, to bludgeon legitimate debate into submission. We need to change it to stop it being used as a method of profiteering by some sensitive snowflakes who claim, whether correctly or not, that they have been upset or offended or insulted by something someone else has to say.

These changes are necessary because of the evidence of the misuse of section 18C in recent years, not only in relation to the Queensland University of Technology students but also in the case of the late cartoonist Bill Leak being taken to the tribunal and having to defend himself. And we had one of the human rights commissioners touting for business, seeking complaints on behalf of the grievance industry. We rightly outlaw touts on the racetrack. I do not think they should be able to tout for the discrimination industry either. That hangs around Mr Soutphommasane's neck. It is a yoke that he will have to wear. He may defend it all he likes, but it is absolutely wrong. So the procedural changes have my support absolutely.

The bill goes even further than I wanted to in respect of the removal of 'insult' and 'offend'. It also wants to take 'humiliate' out and replace it with the word 'harass'. I understand the intentions of the government in this space, and I will support it, but I would like an amendment about the definition of 'harass'. According to the government's definition and some of the things it is putting forward, 'harass' can mean a single instance of a social media post or something like that. I understand that sometimes politicians move in a parallel universe, but I went through a number of international dictionaries, and 'harass' has a slightly different meaning than the one the government is inserting into this bill. It is all about repeated actions. The definition of 'harass' in the United States is: repeatedly making small-scale attacks on an enemy. 'Repeatedly' is the key word there. It is not a single instance, which is where the government has got this wrong. That definition goes on through any other dictionary that is there. It is all about continually or repeatedly having an action take place. So this bill needs to be amended—and I will be seeking to do so in the committee stage—to redefine 'harass' so that the fact that someone has put up an unpleasant Facebook post or said something on a single instance will not constitute harassment. This would bring it much more closely into alignment with a legal definition of harassment, rather than a political definition of harassment.

The second amendment that I will be seeking to introduce is what I am describing as the 'truth is a defence' clause. At the moment, the truth of a statement is not actually considered by the Human Rights Commission, even in the amendments to the process that have been put forward by the government, and nor is it actually part of this act or the Racial Discrimination Act itself in terms of the consideration by those who are rendering judgement in a legal sense. I think we need to have an amendment—which I will be proposing later—that says that section 18C does not render unlawful an act if the person who does the act proves that the act carries an imputation that is substantially true. This will enable someone charged or being investigated under this act to say, 'What I said was substantially true; these things took place; these are the facts surrounding it,' and so the ordeal of the process can be dismissed almost immediately by the proving of those facts, or, if the Human Rights Commission continues to be biased and twisted and seemingly committed to perpetuating the grievance and victimhood ideology, when it gets to a court, a judge can go, 'Thank you; we accept the truth of this defence.'

I think they are very sensible changes, and I hope the government will consider them, because in the end our responsibility is to ensure that our legal system and the framework that we are imposing upon people act in the best interests of our nation.

I close by saying that the reform to section 18C does not give people licence to go out there and egregiously cause offence. It is not designed to allow hate speech, as those on the other side want to characterise it. There are so many times it has been misused by those who are prepared to attack freedom of speech, by making things up, that the whole debate—I have to agree with Senator Moore—has become a bit toxic around this issue because of the alt-Left ideology that is out there and the fake news that they are putting forward. The simple fact is that, until recent times, section 18C was rarely, if ever, used, but now it is being used as a weapon of mass destruction in the battle for freedom in this country.