Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

A letter has been received from Senator Moore:

Pursuant to standing order 75, I propose that the following matter of public importance be submitted to the Senate for discussion:

The fortieth anniversary of the Racial Discrimination Act 1975.

Is the proposal supported?

More than the number of senators required by the standing orders having risen in their places—

I understand that informal arrangements have been made to allocate specific times to each of the speakers in today's debate. With the concurrence of the Senate, I shall ask the clerks to set the clock accordingly.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Speaking about the Racial Discrimination Act in 1975, Prime Minister Gough Whitlam said:

The main sufferers in Australian society—the main victims of social deprivation and restricted opportunity—have been the oldest Australians on the one hand and the newest Australians on the other. We stand in their debt. By this Act we shall be doing our best to redress past injustice and build a more just and tolerant future.

Gough Whitlam's words are just as relevant today as they were 40 years ago.

The Racial Discrimination Act was given assent on 11 June 1975. It was then, and remains today, a landmark piece of legislation. The act prohibits racial discrimination in our nation. It makes it unlawful to discriminate against people based on their race, colour, descent or national or ethnic origin. It makes it unlawful to impair any person's human rights or freedoms in the political, economic, social or cultural spheres, or in other fields of public life. It prohibits acts of racial vilification in public, including through the media, and it provides legal remedies against acts of discrimination.

The Racial Discrimination Act implemented the obligations which Australia took on when we ratified the International Convention on the Elimination of All Forms of Racial Discrimination. It paved the way for many significant milestones in contemporary Australian history. The validity of the act was challenged by Queensland's Bjelke-Petersen government, leading to the High Court's Koowarta decision affirming the Commonwealth's external affairs power—an important and far-reaching decision in Australian constitutional law. The Racial Discrimination Act has played a significant role in ensuring the native title rights of Australia's indigenous people were recognised—more than 200 years after Europeans arrived on this land.

In 1982 Eddie Mabo and fellow representatives of the Meriam people commenced legal proceedings against the Queensland and Commonwealth governments. They sought declarations that they held traditional native title over the lands and waters of the Murray Islands, in the Torres Strait. The Bjelke-Petersen government responded in 1985 by passing the Queensland Coast Islands Declaratory Act, a piece of legislation that retrospectively extinguished native title rights without compensation. The High Court then held that this piece of legislation was invalid, because it was inconsistent with the Racial Discrimination Act. That decision, in the Mabo No. 1 case, opened the way for the High Court's ruling in Mabo No. 2 that:

…the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.

It was a ruling that overturned the legal doctrine that Australia was terra nullius—an empty land—when the British arrived. It was a decision that led to the recognition of native title in Australia, and it would not have happened but for the Racial Discrimination Act. The year after that landmark decision, the Keating government's Native Title Act was passed in this parliament. It is an example of how fundamental reforms work their transformative effects on society. It is an example of how progressive reforms can build on one another, and how tackling injustice in one area extends the remit of justice into new spheres.

But it is important to remember that this act has not only contributed to historic breakthroughs like Mabo and the native title legislation—the big news stories that have been in our headlines in years gone past. Every day of the week, in every community around this country, this legislation protects ordinary people from the poison of prejudice, bigotry and discrimination. Last week Australia's Race Discrimination Commissioner, Tim Soutphommasane, launched the book I'm Not Racist But … 40 years of the Racial Discrimination Act.In the book, he gives three examples of discrimination:

A man of Sri Lankan background works at a warehouse but finds other employees of Anglo-Celtic background receiving better hours and pay rises; his co-workers frequently subject him to derogatory racial comments and harassment.

Second:

An aboriginal man makes arrangements to rent a room in a boarding house but is told by the caretaker when he arrives: 'We don't take anyone who is aboriginal because there have been problems in the past. This is management policy.

Third:

A woman of Asian background comes across an anti-immigration website on the internet: using inflammatory language involving racial epithets, it encourages people to abuse and attack Asians they encounter on the street.

As Commissioner Soutphommasane explains, these examples are drawn from actual complaints made under the Racial Discrimination Act. They are real life examples of what still does happen in Australia. In each case, the act provided a remedy: damages for the abused worker; an apology and compensation for the Aboriginal boarder; and the taking down of the abusive anti-Asian website.

There are some, including some in this place, who have tried to argue that the Racial Discrimination Act is some kind of gag on people simply expressing their opinions. I suspect that is the view of those of those who almost certainly have never experienced racial prejudice or discrimination. Speaking 20 years ago, on the 20th anniversary of the Racial Discrimination Act, Prime Minister Paul Keating made that point eloquently:

Legislation like this does not spring from any utopian vision of society or human nature. It springs from recognition of the less than perfect reality. And it doesn't spring from a wish to punish the perpetrators of racism, but from a desire to protect its victims.

I think that this is the essential point: we come to understand the necessity for this kind of legislation when we put ourselves in the position of the victims of racial discrimination or vilification or worse.

I would ask members and senators of this parliament to heed those words: put yourself in the position of the victims of racial discrimination or vilification, or worse.

The symbolic message sent by the Racial Discrimination Act goes well beyond words in legislation. This act sent a message to Australian society that our parliament believes that discrimination on the basis of someone's race, colour or national or ethnic origin is unacceptable. It shows any Australian who experiences racial vilification or discrimination that we stand beside you. We understand the pain that you, or your children or your grandchildren experience when you are victimised simply because of the colour of your skin or because of your ethnic origin.

In large part, the history of this act has been characterised by a measure of bipartisanship between the main political parties. In large part, that is its history. In large part, this act has a bipartisan history. It is a shame that in the past few years we have seen a break from that shared acknowledgement in this place of the importance of the Racial Discrimination Act.

We in this nation enjoy a remarkably tolerant, democratic and multicultural nation. We have chosen, over our history, to give collective expression to the values that underpin that tolerant, democratic and multicultural nation. The achievement of that fact is not by accident; it is because we have seen community leaders collectively articulate values consistent with this. We have given collective expression to these values in many ways, and I say to this place that the Racial Discrimination Act is one of these. It is a collective expression of our Australian values, a collective expression that Australians ought not be discriminated against on the basis of their race, and it is our collective agreement that we will, together, stand against bigotry and prejudice. For 40 years this act has been part of our collective expression of these important Australian values. I look forward to many more anniversaries of this act into the future.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

It is significant that on the same day that we came together at the reception this morning in the Great Hall in this place to celebrate the 800th anniversary of the Magna Carta—the 'great charter'—we are here today to discuss and to recognise the Racial Discrimination Act 40 years on. I would like to associate myself with many of the comments made by Senator Wong in opening this debate. One of the absolutely fundamental pillars of the Magna Carta which has survived through the 800 years to today is the fact that—then—no man; I will say, no person, is above the law. The Racial Discrimination Act is a most interesting piece of legislation, which draws attention to that precept of Magna Carta from so many years ago.

It was on 13 February 1975 that the then attorney-general in the Whitlam government, the late Kep Enderby, introduced the Racial Discrimination Bill to the House of Representatives. It was passed in June 1975, received its royal assent on 11 June that year, and came into force on 31 October—so it is appropriate that we are recognising this on 15 June, the first sitting day following the fortieth anniversary of its assent on 11 June 1975. Acting Deputy President, what does the act prescribe against? It is against the law to discriminate in areas including employment, and when seeking employment—and we heard an example given by Senator Wong of the Sri Lankan gentleman. It is against the law to discriminate, for example, in land, housing or accommodation, when buying or renting. It is against the law to discriminate in the provision of goods and services when buying an article or a service, applying for credit, or using banking services; when seeking assistance from government departments, from legal services or from doctors in hospitals; or when attending recreational or catering facilities such as restaurants, hotels or entertainment venues. The act prohibits discrimination in access to places and facilities for use by the public—parks, libraries, government offices, et cetera—and I want to come back to that in the context of our country contrasting with another. In advertising for a job, stating that people from certain ethnic groups cannot apply for a job or join a trade union, and certain other offensive behaviour, will be found to be discriminatory, if it is likely to 'offend, insult, humiliate, or intimidate'. That is an area that has been the subject of debate in this place and no doubt will go on to be further debated in the future.

It is interesting that the act does require certain behaviours by people. But the way that it has been framed in the first instance is not about punishing racism but about protecting people against prejudice—that is, that conciliation rather than coercion be the overriding principle. It is also interesting that, in the 40 years that the act has been in operation, and with more than 6,000 complaints having been resolved, as of last year only three per cent were required to be finalised in the Human Rights Commission. As we all know—and as was alluded to by the previous speaker—in the time that has elapsed since 1975, the states and territories around this country have themselves enacted anti-discrimination legislation. Here in the Commonwealth, we have extended the legislative framework to include sex discrimination, disability discrimination, and discrimination based on age—all of which are critically important.

I mention Australia's situation with regard to discrimination and I contrast it with that of my experience residing in the United States of America, where discrimination across state boundaries and between different states in the United States is there for everyone to see. I particularly refer to African Americans. My experience teaching at the University of California was that African Americans were evident in the university system as undergraduates, as graduate students and as academics, who would certainly have been housed in the same housing with equivalent levels of wealth and with equivalent levels of access to society—and then I drove from California to Lexington, Kentucky, where I had the opportunity as an academic visiting that great university for three months, and I saw the absolutely radical difference in the approach of the wider community to African Americans in that location, and I saw also that African Americans themselves in their own attitudes were absolutely profound in their difference. Then we look at Hurricane Katrina in New Orleans and—for those people who have visited that city and have become aware of the problems that have occurred as a result of discrimination, I can only say this: in what we have observed in Australia in contrast to the United States, how different has been the story. I would like to draw on the comments of our Governor-General, Sir Peter Cosgrove, when he was marking the anniversary on 19 February this year—and he is speaking here of those who put together the Racial Discrimination Act in the first place. He said:

Its authors, advocates and early administrators foresaw its critical role in guiding a maturing nation. They were among the pioneers of Australian human rights law for whom we can be forever grateful for their unapologetic insistence on the formal recognition of dignity, respect, equality and freedom as fundamental human liberties.

He went on to make the point that this is not a static process. It is an emerging and evolving process. He makes the point that those with responsibility in this area must have the ability to intelligently read and respond to changes in Australian society and to the attitudes of those of us who make up Australian society.

In the Governor-General's presentation that day, he referred to the statement of Martin Luther King:

… it may be true that morality cannot be legislated, but behavior can be regulated … the law may not change the heart, but it can restrain the heartless.

I think it is a fantastic circumstance that in this country we do have legislation which, of course, commits us to freedom, which enables us to enjoy freedom of speech, freedom of religion and the other traditional rights and liberties that we have all come to expect. In this country we want to reserve the right to speak our mind. But of course, at the same time, we must beware of our responsibilities. There is no place for racism among any in the Australian community. We recognise in this country that to enjoy all of our rights and freedoms people must be able to do so free from discrimination, and that our policies are designed to secure these objectives.

In the few minutes left, I want to draw the attention of the chamber to a term that we use very widely, and that is the term 'bigot'. Indeed, I wonder whether all of us who use it and throw it around have an understanding of the definition of a bigot. It is simply a person who is utterly intolerant of any differing creed, belief or opinion; a person whose intolerance is devoted towards the opinions and prejudices of somebody else. I make that point because, if you were to take some of the robust discussion and the differences across this chamber at different times, a person looking in from the outside might accuse us of being guilty of the same.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to contribute to this motion on the 40th anniversary of the enactment of the Racial Discrimination Act in June 1975. The enactment of the Racial Discrimination Act was a critical turning point in Australia's history because of the role it played in signposting Australia's commitment to protecting and promoting what were internationally recognised and universal human rights. The Racial Discrimination Act was the first time that Australia had directly incorporated the language of an international human rights treaty into our domestic law. This was then upheld by the seminal High Court Koowarta case, which confirmed that the Commonwealth has external affairs powers that can be in the Constitution that can be used to implement our international obligations in domestic legislation. That decision then paved the way for other seminal legislation to protect against discrimination on other grounds such as gender, disability or age. Without those developments, it is unlikely that we would then have had the other nation-defining High Court decisions such as the Tasmanian dams case or the Mabo case.

It is true to say that the Racial Discrimination Act did not have an easy birth. There were strong debates about whether Australia needed laws to protect against racism, even arguments that suggested that if racism existed in Australia it should be valued as a type of character-building experience for minorities. But pass it did, and now, here, 40 years on, the Racial Discrimination Act still raises controversy and strong opinions, as we have seen in relation to attempts to remove or amend provisions such as section 18C. The principles of equality, fairness and respect for human rights embodied in the Racial Discrimination Act still require vigilant defence and protection. So, along with many others around Australia, I have strongly defended the current version of section 18C. I have been motivated by the many Australians who have shared with me their very personal stories of racial abuse and discrimination, sometimes obvious, sometimes subtle, but often devastating in its impacts, and not defensible. I have also been motivated by the many, many Australians who see section 18C as part of a broader legal and moral commitment to racial equality and respect that speaks about who we are and what we stand for as a people.

So it is that we must use these people and their voices to inspire us. The Greens will continue to speak out and amplify those voices in our parliament. In particular, we will remain vigilant defenders of the Racial Discrimination Act. We will be open to ways to improve its effectiveness, but we will always be guarding against any moves that would risk eroding the protections that it provides.

Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source

I rise to contribute to this 40-year anniversary of the Racial Discrimination Act. Over the last 40 years, Labor has delivered a framework of human rights law that reflects Australia's rich and diverse multicultural society. Labor introduced the Racial Discrimination Act in 1975 to make discrimination on the basis of race unlawful. In the 1990s, Labor added to these protections by banning racially charged offensive, insulting, intimidating and humiliating speech that leads to racial hatred.

The Racial Discrimination Act 1975, also known as the RDA, was introduced by the Whitlam Labor government to make racial discrimination unlawful and to combat racial prejudice. The RDA makes it unlawful for anybody to discriminate against a person based on their race, colour, descent or national or ethnic origin. It also gives effect to Australia's international human rights obligations under the UN Convention on Elimination of All Forms of Racial Discrimination. In accordance with these obligations, all people are guaranteed equality before the law without distinction as to race. It also provides that, regardless of ethnic background, people have a right to equal access to places and facilities, land, housing and other accommodation, goods and services, trade union membership and opportunities to work and find a job. The RDA also creates a process for mediation and conciliation of discrimination complaints, a process that is now undertaken by the Australian Human Rights Commission.

'Legislation has a vital role to play in the elimination of racial discrimination,' Labor's Attorney-General Kep Enderby said to parliament in February 1975. As the 20th anniversary of the Racial Discrimination Act approached, three major inquiries found serious gaps in the protections provided by the law. The National Inquiry into Racist Violence, the Australian Law Reform Commission report Multiculturalism and the law, and the Royal Commission into Aboriginal Deaths in Custody all argued in favour of an extension of Australia's human rights regime to explicitly protect the victims of extreme racism.

In 1992 the National Inquiry into Racist Violence found that, while state and territory criminal law punishes the perpetrators of violence, it largely is inadequate to deal with conduct that is a precondition of racial violence. That conduct includes racially charged offensive speech. In response to these findings, Michael Lavarch, the Attorney-General in the Keating Labor government, introduced the Racial Hatred Bill 1994, which added a new part to the RDA. The new part IIA included a civil prohibition on racially motivated hate speech and a variety of defences to protect free speech. 'Racial hatred provides a climate in which people of a particular race or ethnic origin live in fear and in which discrimination can thrive,' said our then Attorney-General, Michael Lavarch, in his speech to parliament in November 1994. Racism and bigotry, wherever expressed, are wrong. No-one has a right to be a bigot, particularly if they hurt someone. A bigot restrained will never suffer more than a victim shamed.

Last year, Senator Brandis seemed to accept that racially motivated attacks are part and parcel of the 'intellectual freedom' Australians expect—despite there already being broad exemptions under section 18D from current laws where people make infringing statements in good faith. The Attorney-General consistently justified his belief by referring to the unfortunate Andrew Bolt, found by the Federal Court to have made racist comments in bad faith. Indeed, Mr Bolt knowingly published errors of fact and distortions of the truth. If he had a sincere intellectual point to make, it would have avoided infringement of section 18C.

Unlike the current law, legislated by a Labor government, which protects views offered in good faith, the government proposed to give a free pass to people who vilified ethnic and racial groups, as long as they could link their comments to any 'political, social, cultural, religious, artistic, academic or scientific matter'. That means comments in an online newspaper or in a political or art blog making incendiary, racist comments. It would include a sign threatening perhaps a Jewish group at a neo-Nazi rally against immigration. It remains very difficult to imagine any conduct that falls outside these exemptions put forward by Senator Brandis.

In August last year, Senator Brandis was told by the Prime Minister to backflip with pike and abandon on that disgraceful plan that he had to water down the protections afforded by section 18C. Sadly, this decision was not motivated by any overdue realisation that the government had made the wrong judgement call on 18C. Rather, the point eventually came where the Prime Minister could no longer ignore the enormous chorus of community anger about the government's plans, and what a large chorus it was. Australians from all walks of life joined together and walked together to oppose the government's racial discrimination changes—something so strong in our community that the government could not ignore it. People attended community forums to demonstrate their support for tolerance, social inclusion and multiculturalism and to affirm their opposition to bigotry and racism. They organised on Facebook, Twitter and other social media. They wrote and called their state and federal members of parliament. Australians marched in the streets to demonstrate their support for retaining protections against racist hate speech.

But, rather than listening to the voices of the Australian community and admitting that he made a wrong captain's call on 18C, the Prime Minister explained he was changing course simply because 18C had become a 'complication' for the government. And the Prime Minister did not rule out proceeding with plans to repeal 18C in the future, if the political environment were more favourable for him to do so. Australians, in the Senate and in the street, can and do use the avenues open to them to call out racism when they see it. We use the rules to defend what is good and to show that hatred and hate speech are out. We do not accept excuses that racially motivated vilification is an ordinary and acceptable part of living in our democracy. It is not.

I would like to commend the Race Discrimination Commissioner, Tim Soutphommasane, for his book, I'm Not Racist But… 40 Years of the Racial Discrimination Act. I also thank the other contributors to that book: Christos Tsiolkas, Alice Pung, Maxine Beneba Clarke, Bindi Cole Chocka and Benjamin Law.

To build a society where people of different racial and ethnic backgrounds feel able to fully participate and where people can live, work and play side by side, we need to defend our right to speak freely but fairly

The Racial Discrimination Act is integral to this. We have a wonderful, multicultural nation thanks to the laws and instruments that permit such a nation to flourish. I think Senator Wong articulated it very well when she said that the Racial Discrimination Act:

…is a collective expression of our Australian values, a collective expression that Australian's ought not be discriminated against on the basis of their race, and it is our collective agreement that we will, together, stand against bigotry and prejudice.

I would like to commend all of those who, day in and day out, stamp out racism in our community and those leaders who also do so—especially Adam Goodes, the Sydney Swans player, who has been an inspiring ambassador for the Racism. It Stops with Me campaign. I would like to thank the AFL for its ongoing stance against racism and all those in the community who continue to support a strong Racial Discrimination Act.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

Today is indeed a very auspicious day. We are here this afternoon talking about the 40th anniversary of the Racial Discrimination Act. Some of us earlier today commemorated the 800th anniversary of Magna Carta. Time does not allow me to elaborate on the links between the Racial Discrimination Act and Magna Carta. In the last parliamentary sitting week, the President of the Senate was joined by the current Clerk of the Senate to launch the second edition of Australia's Magna Carta. It includes a chapter from the former and now late Clerk, Harry Evans, which is entitled 'Bad King John and the Australian Constitution'. Before turning to the importance of the motion before us, I would like to quote a little from his chapter, where Mr Evans made the following suggestion:

I want to suggest that Magna Carta has a significance which is not dependent on its content. This is its contribution to the history of constitutionalism, and, in particular, to the development of the concept of a constitution.

In order to appreciate this significance, it is necessary to realise that many concepts and institutions of government which we now take for granted and which we regard as obvious developed extremely slowly over a long period and in very small accretions. Even the most simple ideas and institutions have been a long time in developing. It is also necessary to appreciate that there are very few really new ideas or institutions. The modern epoch has made very few original contributions to government.

They are very wise words, indeed, from the former Clerk of this place. Finally, he goes on to say:

So perhaps after all we may gaze upon our copy of Magna Carta with some awe and reverence, not because of its content or for its legal significance but for the contribution it made to the development of the written constitution and the concept of rights of the citizen. In a sense, all written constitutions, including our own, and all declarations of rights, are its descendants. Remembering that, and other aspects to which I have referred, may help us a little on our way into another century.

It is particularly important to think that a document that originated 800 years ago is the origin of the democratic institutions that we in this nation enjoy and others in other nations enjoy as well.

There is an important point that is worth observing in the context of this debate on the 40th anniversary of the Racial Discrimination Act. For the most part, the contribution of other senators this afternoon has been a very worthy one and, for the most part, I add my sentiments to their sentiments. Fortieth birthdays are significant milestones and I would argue that those of us who have turned 40—I do not want to be rude, Mr President, but I cannot see anyone who would not be 40—would almost certainly have used the occasion as an opportunity to reflect and make an assessment about those four decades. If we are honest with ourselves in looking back, we do make assessments about those things that have gone well and those things that could have gone better. In my view, that should be no different for legislation. In marking the 40th anniversary of the passage of the Racial Discrimination Act 1975 there is, indeed, very much to be proud of. Multiculturalism—I often wonder why it is not called 'cultural pluralism'—did not begin with Gough Whitlam, as much as some in this place would like to believe that to be the case.

The passage of the legislation in 1975 represented an important milestone in Australia's evolution and in our transition to becoming a more multicultural society. Likewise, racial tolerance did not simply come into being with the passage of the Racial Discrimination Act. What the legislation did, however, do was crystallise values of tolerance that were already alive in the Australian community. In effect, in passing the legislation, the parliament was giving formal notice of the Australian community's desire to be an open and racially tolerant society. The legislation has not been static for 40 years, and Senator Singh alluded to that in her contribution. There have been amendments over the years, most notably, I would argue, amendments to section 18C, which have now moved beyond the original intention of the legislation and have upset the delicate balance between protection from discrimination and freedom of speech.

The point I am making is this: that in the same way as the Magna Carta, which we are celebrating today, has had 800 years of influence over our parliamentary democracy and our traditions we should be open to the fact that the Racial Discrimination Act, which was passed 40 years ago, should be open to discussion, should be open to change and should be open to reform. I am proud to say that in this place I am one of those people who believes there are some elements of the Racial Discrimination Act that can, and should be, reformed. It is not new news to senators that I and a number of other senators have proposed the evolution of the Racial Discrimination Act, particularly in regards of section 18C, to better promote freedom of speech in our country and, importantly, to transfer the burden from legislation to every individual in this country to challenge discrimination and abusive and offensive things whenever they are said and heard.

Just briefly, I am proud to say that I am not alone. Senator Bernardi, Senator Leyonhjelm and Senator Day have a similar view to me.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

All the Tea Party senators.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

If Senator Cameron was well schooled in this issue, he would know that my views are shared by the Chief Justice of the High Court.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Oh, wow!

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

If Senator Cameron had respect for the law, he would be curious to know what the Chief Justice of our High Court had to say.

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

And I'll bet he doesn't.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I was waiting for an invitation, but you are quite right, Senator O'Sullivan.

Senator Cameron interjecting—

Senator Lines interjecting—

John Williams (NSW, National Party) Share this | Link to this | Hansard source

Order in the chamber! Continue, Senator Smith. We have been going very well up until now.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I will continue in that spirit, Mr Acting Deputy President. What did Justice Robert French, the Chief Justice of the High Court now, say in regards to the Racial Discrimination Act and particularly in regards to section 18C? Justice French said:

The lower registers of the preceding definitions [in 18C] and in particular those of 'offend' and 'insult' seem a long way removed from the mischief to which Art 4 of CERD is directed. They also seem a long way from some of the evils to which Part IIA [of the RDA] is directed as described in the Second Reading Speech.

Let me abbreviate that for you, Senator Cameron. The Chief Justice is saying that the words 'offend' and 'insult' are not working in the way that was originally intended.

Would you like to hear from the esteemed human rights lawyer Sarah Joseph about her attitude to whether or not section 18C should be reformed?

John Williams (NSW, National Party) Share this | Link to this | Hansard source

Order! Direct your comments through the chair, please, Senator Smith.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

Perhaps another name that might be more familiar to Senator Cameron and, indeed, Senator Lines is Julian Burnside QC, a prominent human rights lawyer. What has he said in regards to reforming section 18C? He said:

… the mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability. My personal view is that 18C probably reached a bit far so a bit of fine-tuning would probably be OK.

The point is a simple one. Legislation is not static. This place should be brave enough to embrace, discuss and debate reform and change.

Senator Wright is absolutely correct: reform of 18C is a contentious issue. It has brought strong opinions to this place. But this is what the Australian Senate is for. I am sure that every one of us, including you, Senator Cameron, has it within us to engage in a mature debate to bring forward a proper and healthy discussion about whether or not the Racial Discrimination Act should evolve.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

My contribution to this debate and the fact that we are marking this very important anniversary of the Racial Discrimination Act is to bring into focus Aboriginal and Torres Strait Islander peoples. I would argue that the act, while it has done some great things and we have made some progress, is still not protecting Aboriginal and Torres Strait Islander peoples from prejudice or, in fact, racial abuse. It is very important to note that the only time that the Racial Discrimination Act has been set aside has been to enable legislation to impact on Aboriginal and Torres Strait Islander peoples. The Northern Territory intervention was an unfortunate example of where the Racial Discrimination Act was set aside. The intervention was exempted from the operation of that act. While I disagreed with many other things that the Labor government subsequently did in the Northern Territory with the intervention, one of the good things they did was restore the operation—although not quite fully—of the Racial Discrimination Act to that particular piece of legislation.

The law, as we know, makes it so you cannot lawfully discriminate and so you can protect people against prejudice. The point that I made earlier is that this act has not done that. If you go and talk to any Aboriginal community, they can recount occasion after occasion where they have been subjected to prejudice and racial abuse. When we were carrying out the hearings on constitutional recognition, we constantly heard that. Just a couple of months ago in South Australia a young man gave us an account of the abuse and prejudice he suffered at school. So we still have a long way to go. It is worth celebrating, but we in this country have more to do.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

I want to go back to the words of Gough Whitlam on the proclamation of the Racial Discrimination Act in 1975 when he said:

There is nothing in the Constitution, or any other document, to entrench or even give expression to the rights of citizens and the democratic ideals on which our society is based. Unlike the United States, we have no bill of rights; unlike the US, our Constitution says nothing about civil liberties. There is a need to spell out in an enduring form the founding principles of our civilisation, and in particular the principle that all Australians, whatever their colour, race or creed, are equal before the law and have the same basic rights and opportunities.

When Mr Kep Enderby moved the bill, he said: 'It should have happened many years ago.' The bill was a significant step in the development of policy and the promotion of human rights in Australia.

Laws against racial vilification and racial discrimination should not be contested in Australia, but sadly they are. We are a country with a history of migration which has yet to reconcile, accept and respect that our first peoples, our Aboriginal and Torres Strait Islander peoples, are still not recognised and are discriminated against in Australia. On a day when we celebrate the 800th anniversary of the Magna Carta, WA Chief Justice Martin reminds us that we fail to acknowledge that Aboriginals law is many thousands of years older than that which was created when the English earls and barons bailed up King John on the banks of the Thames near Runnymede. If parliaments are the place which set the example, not only do we need to do more to reflect, in our elected representatives, our multicultural and Aboriginal and Torres Strait Islander peoples; we must do it in the acts we debate in this place.

The Racial Discrimination Act has been under attack by the Abbott government, which sought to repeal section 18C of the act. An overwhelming backlash in the community ensured this attack on the act was dropped. But the record shows that the conservatives have tried to water down the act since it was introduced in 1975—indeed, they sought amendments which watered down the act on its introduction—and they have continued their attack on this act over the last 40 years.

Why is it that when there is a clear need for this act in 2015, as there was in 1975, that conservatives continue to attack this act? We saw the extraordinary outcry just a few weeks ago when Adam Goodes did a celebration dance, a recognition and respect of his culture, a tribute to the Flying Boomerangs, an Indigenous youth program run by the AFL, that many commentators thought was outrageous and frightening. Anyone who watched that surely must have seen the delight on his face as he did that wonderful dance. It shows again that racial discrimination in our country continues, unfortunately, to be alive and well.

Why is it that, in the town of Geraldton, my 11-year-old Gidja granddaughter, on my taking her into a shop, said to me: 'I've been in this shop before and I don't like this shop.' I asked her: 'Why?' She told me that when she went into that shop with her mother, a Gidja woman, they were followed around. When I asked Charlee, 'Why was it that you were followed around by the owner of this shop', she said to me, as plain as anything, 'Because I'm Aboriginal.' That is the lesson that Australia has taught my 11-year-old granddaughter. She learnt that a long time ago—long before she got to the tender age of 11.

The Racial Discrimination Act is a good act. We need it, and we need to enact those principles. We need to enact the principles in the parliament and in our everyday lives, because the act, in and of itself, will not end discrimination. But, on the 40th anniversary of this act, I know, and many of my Labor colleagues know, that this act is as needed today as it was 40 years ago. I commend the act to the parliament—and I will continue to defend its operation.

Anne Ruston (SA, Liberal Party) Share this | Link to this | Hansard source

It gives me great pleasure today to talk about the anniversary of the Racial Discrimination Act 1975. But it is worth reflecting that racism visited Australia long before European settlement. The very first description of an Indigenous Australian was by the English explorer, William Dampier. He observed our continent's first peoples in 1699 and was less than complimentary, to say the least. Dampier was a man, I suppose you would say, of his less enlightened times. But his description of Indigenous Australians, when he encountered them, was miserable, simply because they did not keep livestock and they did not wear clothes like Europeans. I think this demonstrates the narrow prism through which significant difference is too often viewed. Our history, like that of any nation, is replete with these sorts of examples: from the punitive expeditions against local Aborigines, undertaken by the first settlers in Sydney Cove, to the anti-Chinese riots during the gold rush and the first acts of the Australian parliament in 1901 to restrict migration based on race and to deport specific islander labourers—the so-called beginning of the White Australia policy.

As we stand here today, it is not very hard to realise just how far we have come since we first arrived in this place. But it began slowly with the abolition of the infamous 'dictation test' for new migrants in 1958, among other developments. This was followed by the effective dismantling of the White Australia policy in the 1960s and the historic 1967 referendum that saw power given to the government to legislate for the benefit of Indigenous Australians. We learnt to celebrate diversity and difference instead of fearing them. We began to realise the benefits of difference by recognising that, underneath our traditional dress and the colours of our skins, all people are pretty much the same.

I think it is important to note some of those brave activists and trailblazers who championed and forced this recognition: people like Charles Perkins, who organised the Freedom Ride of 1965 to expose discrimination and racism; people like Sir Douglas Nicholls, the first Indigenous Australian to hold a viceregal office as governor of my home state of South Australia; people like Egon Kisch, who embarrassed the Lyons government in 1934 by passing the dictation test in every possible European language, except for Gaelic, and won the right to stay in Australia after the High Court ruled he had been unfairly discriminated against; people like Eddie Mabo—who is a tremendous example—David Passey and James Rice, whose efforts led to the rejection of the false concept of terra nullius and laid the foundation for native title. There were just so many great people, most from groups suffering from some level of discrimination, who made us recognise that, underneath, we are all essentially the same. The formation and creation of the Racial Discrimination Act in 1975 formalised the recognition that these people in our past had put so much hard work into achieving.

We now have an act, despite what has been said by those opposite in some of the more negative contributions that we have heard on this matter of public importance, that will ensure Australians of all backgrounds are treated equally and have the same opportunities. This act makes it against the law for you to be treated unfairly or to be discriminated against on the grounds of race, colour, descent, national or ethnic origin and immigration status. The act also makes racial hatred against the law. We have seen a lot of debate in this place over recent times about the interpretation of that. But, at the end of the day, we must ensure that we are very clear that it is the act of racial hatred that does not happen.

It is a great pleasure to be standing in a parliament at the moment that does not seek to perpetuate the problems that we have seen of the past but to learn of the problems of the past and operate under an act—like this particular act—that gives protection to every Australia, no matter what colour, creed, race or nationality; where they have come from; how they have come here; or when they have come here and, for that matter, those who were here before any of us got here. This act is 40 years old. It should be cause for great celebration that we stand here today and celebrate the fact that for 40 years we have had a racial discrimination act that looks after the people of Australia.

Glenn Lazarus (Queensland, Independent) Share this | Link to this | Hansard source

Forty years ago, Australia implemented one of the country's most progressive and important pieces of legislation: the Racial Discrimination Act 1975. The act aims to ensure that Australians of all backgrounds are treated equally and have the same opportunities. I am proud to be Australian and I am supportive of our commitment to multiculturalism and unexclusiveness; but I know we need to do much more if we are to ensure that everyone in our great country is able to access and pursue the same opportunities and be treated with curtesy, respect and appropriate consideration.

Our very own Australian Human Rights Commission has a mission of human rights: everyone, everywhere and every day. Human rights should be basic rights. Sadly, in Australia this is not the case. In my home state of Queensland, it would seem landholders and farmers have no rights. They have no rights whatsoever. Coal seam gas mining companies can make a way onto farmers' land and commence mining coal seam gas without any approval needed from the landholder. Queensland landholders who attempt to resist CSG mining companies coming onto their land are subject to bullying, harassment and intimidation and are threatened with being taken to the Land Court of Queensland. To make matters worse, landholders then face the threat of court costs and fines for simply trying to protect their lands and their families from the devastating impact of CSG mining.

Communities across Queensland are turning into gas fields. I travelled to regional Queensland to see the devastation firsthand. The way this country is treating farmers and landholders has brought me to my knees. CSG mining depletes the earth of its water, dries up wells and bores, contaminates what little water there is left and poisons the earth. People affected by CSG mining are becoming ill, their children are waking up with blood noses, their animals are dying and the value of their land is plummeting.

When people seek help from the government or the CSG mining companies involved, they are made to jump through hoops or simply ignored. The way this country is treating Queensland farmers and landholders is nothing short of criminal. Communities across Australia are desperate to stop CSG mining. They want CSG miners off their land and off the land around them. There is plenty of gas available via other means. This country should not be allowing multinational companies to rape our land, harm our people and decimate our natural resources all for profits which go overseas.

Last week, Deputy Prime Minister Warren Truss was quoted as saying that what the CSG industry in Queensland had provided was a valuable economic boost to regional areas, as well as revenue for the Queensland government at a time when coal royalties were declining. He was also quoted as saying that the CSG mining industry was now well accepted in rural communities and provided employment in towns. This is the most disgraceful, insulting and ignorant thing I have ever heard. The majority of Queensland communities, or Australian communities for that matter, do not want CSG mining. A quick Google search could tell you this. If Warren Truss seriously thinks that revenue is more important than the health of our people, then he should resign immediately. It is clear that Warren Truss, our very own Deputy Prime Minister, has no regard for the human rights of the people of Queensland, because if he did he would not say such stupid things.

Australia needs leadership. Our country needs to improve our commitment to human rights and the government needs to understand that Queensland landholders and farmers have human rights too. It is not appropriate to turn a blind eye to the damage that is being done to the people of Queensland. Revenue should never be put before the health of our people. This is why I am calling on the government to undertake a royal commission into the human impact of CSG mining, ban fracking and put a hold on any further CSG mining projects. I have a petition that over 60,000 people have signed.

We may be celebrating 40 years of a legislation commitment to human rights, but we urgently need to start understanding that the people of Queensland have rights as well. Human rights should come before money, before political donations from CSG mining companies and before mining revenue. (Time expired)

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

Order! The time for the discussion has expired.