Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

I hate racism and bigotry. I cannot understand how someone can look at the colour of someone's skin, their gender or their ethnic background and make broad, sweeping assumptions about their moral virtue, their suitability for a role or whether they should be part of an organisation or grouping. But, unfortunately, the reality is that racism and bigotry have been part of the world in which we live for a very long time. That said, I also know that one of the great things about modern Australia is that, while these kinds of attitudes are still around, they have become increasingly isolated and rare.

There were certainly challenges in growing up here in Canberra for me, coming from a non-English-speaking background and with a name like Zdenko Seselja, but for the most part I did not feel too different. The isolated incidences of bigotry I experienced did hurt, but in a significant way they are memorable because they did not happen all that often. I will come back to that. Mostly what I saw was that my neighbourhood and school community were relatively cohesive, with people of many different backgrounds working hard and getting along pretty well.

I remember growing up with people both like me and unlike me. There were people from southern Europe, such as the Croatians, Greeks, Italians and Macedonians, and there were my best friends through the years, who came from Malaysia, the US, Sri Lanka and New Zealand. I got to know a refugee family from El Salvador, whom my family welcomed and assisted. I even remember the half-Zambian kid who grew up around the corner and went on to captain the Wallabies. Through growing up with these people, I formed the view as a young boy and then a young man that people should be judged by who they are—the content of their character, if you will—rather than judging them based on where they or their parents might have been born or on the colour of their skin.

Of course, it was not perfect, and there were times that I experienced bigotry. I still clearly remember going off to Croatian lessons and being ridiculed for being different. I remember being called 'wog' or 'dago'. I had much darker skin then, compared to now, and I vividly remember being called 'black' as a derogatory term. Most of these instances were just kids being kids, though it did not make them hurt any less.

In considering the merits of section 18C of the Racial Discrimination Act, I have reflected on my experiences as well as the experiences of many others who have gone through much worse than I did. It struck me that this section of the act came into force when I was a teenager. I cannot help but wonder: would it have made any difference to my experience growing up? Could or should the act have been used to help schoolkids like me, who were dealing with bigotry? My answer to these questions is no.

There are a number of reasons for this. Above all, I passionately believe in free speech, even speech which I find offensive. That is central to our democracy. I believe it is an absolutely fundamental right, and it is from the right to life and free speech that all other freedoms flow. And, if free speech really is a fundamental right, then the bar needs to be set very high before a law can outlaw any form of speech. Section 18C in its current form sets the bar too low.

In my maiden speech, I talked about the experiences of my family, particularly of my uncle, who came from the former Yugoslavia where he was imprisoned for exercising his right to freedom of speech and freedom of religion—things that we have to work very hard to guard.

There are some who argue in the context of section 18C, 'Well, what about defamation? What is the difference between a defamation action and an action under the Racial Discrimination Act?' In my opinion, the line is clear and significant. A defamation action needs to show that an individual has been damaged by the speech. A person must clearly show that the defamatory statement, to be actionable, has resulted in them being viewed in a lesser light by a reasonable person and that the statement was not true. However, under the Racial Discrimination Act, we have a completely subjective test applying to anyone identifying with a particular ethnicity or nationality—a 'hurt feelings' test. This can and does have a particularly chilling effect on free speech. In looking at this issue, I have also considered how different ethnic groups in the past responded to prejudice—not through the law but with humour. Wogs Out of Work and Acropolis Now were some of the responses of southern Europeans to the negative labels that they sometimes received. Well-known Australian comedian Vince Sorrenti has often used, to great effect, this type of humour.

I also make the point in passing that much of the ethnic ribbing that was part of my life growing up was a good natured two-way dig—part of a longstanding Australian irreverent character which most immigrants to this country have adopted and embraced. But, again, sometimes the labels did hurt. But when I consider the question of whether a law like 18C of the Racial Discrimination Act could have been used for me or others growing up—even if I had wanted to—my answer again is no, and that is because, like with many laws of this type, you have to have significant means and ability to bring such a matter to court. That means you get laws being used by activist organisations and lobby groups to score political points, rather than helping real day-to-day vulnerable people. Also, it seems to me that, by encouraging individuals and groups to settle their differences in court over this issue of offensive speech, we further entrench divisions in our community between ethnic and racial groups, rather than creating an atmosphere where we settle our differences with open debate, goodwill and even humour. A law designed to unite, can in fact divide.

History and experience show that you only get meaningful, long-lasting cultural change when it comes through evolving community standards rather than the threat of legal action. Outlawing speech does not stop the bigotry in people's hearts; it simply pushes it underground. It is better to bring such thoughts to light and have them discredited by rational debate. We only have to look at recent examples in the United States, where free speech is protected in the constitution yet community standards often do the job of dealing with offensive speech. We saw this in the case of Donald Sterling, then owner of the NBA team the LA Clippers, who made highly offensive racially-based comments. The sanction by the public and the other NBA owners was swift and brutal. There was no need for a lawsuit against the behaviour—the community spoke out, and the issue was dealt with. More importantly, in that case the Racial Discrimination Act would not have even applied, as his comments were made privately and were recorded.

Another crucial reason why 18C, as it stands, is an unreasonable restraint to free speech is that it does not deal with the more subtle forms of racism and bigotry that we see. In my opinion, it is this sort of racism that is far more pernicious. Who could forget the South Australian Labor Party running election ads against Liberal candidate Carolyn Habib? The ads simply asked 'Can you trust Habib?' Blind Freddy could see that the ad was designed to appeal to an anti-Arab sentiment, but it is subtle enough to never attract the sanction of the law. It is better, in my opinion, to speak out and call this what it is—bigoted—and condemn it and highlight the hypocrisy of those who are putting out bigoted ads while arguing against amendments to the Racial Discrimination Act, rather than to draft a new law to try and deal with a more subtle form of racism.

This was a reform I publicly supported, and, in my maiden speech, I commended the efforts of Senator Brandis and his commitment to free speech. Indeed, for some time the coalition has been making the case for this reform. In August 2012, a year before the election of the coalition government, Tony Abbott said:

Let's be clear: insulting, humiliating or intimidating others on any grounds, racial or otherwise, is deplorable. It should be everyone's goal to elevate the standards of public debate, not lower them, and to demonstrate respect rather than disdain for the various components of our community. Still, a "hurt feelings" test is impossible to comply with while maintaining the fearless pursuit of truth which should be the hallmark of a society such as ours.

Then, after the election, the Attorney-General said:

… never again in Australia will we have a situation in which a person may be taken to court for expressing a political opinion. But we know that the government made the decision to put this reform to the side. Through that, I remained consistent in my views believing that this was an important reform to continue to pursue. Then, when Senator Day proposed an alternative compromise for reform of the act that simply struck out the words 'insult' and 'offend' the then Communications Minister, now Prime Minister Turnbull, said he was 'very comfortable' with the proposal and did not foresee 'any negative impact'.

So it is clear there has been substantial support in this parliament for this reform over the last few years, but we haven't matched those words with deeds. As the now Prime Minister went on to say about Senator Day's proposal … the reality is with change like this you've got to do it very delicately and you've got to bring people along with you.

Well I believe the time to bring people along is now. Section 18C does not unite us; in my opinion, it has the tendency to do just the opposite.

It has been less than a year since the tragic massacre of cartoonists and writers at Charlie Hebdo in France—a massacre that took place because of cartoons and words. The response of many at the time was to lament the horrible murders as part of a physical attack on free speech. As Human Rights Commissioner Tim Wilson made clear at the time, while Charlie Hebdo would likely have been a legal publication in Australia, there is no doubt it would have faced constant legal challenges under the Racial Discrimination Act. Wilson argued:

18C would have been used against Charlie Hebdo because it sets a low bar to restrict free speech. Administratively, 18C also makes it easy to take action; all you need is an aggrieved party and an arguable case.

Wilson went on to say:

The Charlie Hebdo massacre is a tragedy, and it should be a reminder that we need to defend free speech even when speech offends and insults.

Offence and insult are subjective, emotional responses to the actions of others. Individuals can be offended and insulted by just about anything, even when it is not intended. For that reason, a law that prohibits speech that merely offends and insults sets the bar too low. Instilling these principles in law ultimately leads to self-censorship.

So this is not a trivial bit of policy; this matters, and we have seen recently how much it matters.

Reform of Section 18C of the Racial Discrimination Act is a policy that we advocated for before the last election. It is a policy that we took to the election. It is a policy the leadership of the government has spoken about and clearly supported, and it is a policy that I believe should be supported. I support this bill because I believe freedom of speech is one of the centrepieces of our democracy. Without it, we do not have real freedom. I support this bill because I have lived a life where I have occasionally experienced bigotry firsthand, but I know that punitive legal action ultimately will not result in the real lasting cultural change which leads to greater respect. I support this bill because this is what I said I would do when I was elected and it is what the coalition said we would do in opposition and in government. I commend it to the Senate.

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

I do not know how someone can stand in this place and say that they are opposed to vilification and then try to water down the Racial Discrimination Act: the two are mutually exclusive concepts. The last time an amendment to the act raised its ugly head I received many emails from concerned Australians about the watering down of the act. We saw community organisations across the country come out and speak against the watering down of the act. Many were community organisations who, unfortunately, deal with racism every day—the experts, if you like; those at community level who hear the offence and witness the pain it causes.

This is a time in Australia when tolerance should be at its highest, following the tragic and horrific shooting of Mr Curtis Cheng. There has been an outpouring of grief by thousands of Australians who did not know him but who were moved by his death to act in a kind and tolerant way. Tolerance should be at the forefront of our actions when we confront the fact that his death was carried out by a 15-year-old boy and when we are told by law enforcement agencies that children as young as 12 are being groomed by adults. Of course, we need strong law enforcement. Of course, we need vigilance and new strategies. What we do not need is an amendment to the Racial Discrimination Act which allows people to be bigots, to offend and to insult. This is exactly what the Racial Discrimination Amendment Bill 2014 seeks to do. It is not about free speech; it is about offending and insulting.

This is an amendment that the Turnbull government wants—only this time it is using the backdoor, through a private senator's bill. Of course, the bill is co-sponsored by two Liberal senators—one a former minister and one a deputy whip. They are two liberals who have held and continue to hold senior positions within the Liberal Party. This is Prime Minister Turnbull pandering again to the wishes of the bigots in his own party, who want to push through these changes under the guise of a private member's bill. Make no mistake: nobody is fooled by this action.

In June of this year the act celebrated its 40th anniversary. It was introduced under the Whitlam government in 1975, but from its inception right up until now a long succession of Liberal governments have tried to water it down, and this backdoor attempt by the Turnbull government follows that legacy. It is useful to reflect once again on the words of Kep Enderby, who, when he moved the bill, said: 'This bill was a significant step in the development of policy and the promotion of human rights in Australia' and also on the words of the great Gough Whitlam when he said in relation to the bill:

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.

This amendment, like all previous Liberal government amendments, seeks to radically change that meaning and that intention of the Racial Discrimination Act. Last year, when the Attorney-General tried to move a very similar amendment to water down the Racial Discrimination Act, we saw thousands of submissions flood in in response to government consultation that almost universally panned the Attorney-General's exposure draft for a watered down 18C. There were rallies. There were petitions. There were delegations of community leaders to this place. Australians of all backgrounds spoke out against the government's divisive proposal. Australians from many organisations who would not normally agree with each other on a number of significant matters agreed that the watering down of 18C was not in anybody's interest. They showed that their principles were based on tolerance—tolerance that they can accept one another's positions and tolerance that they can disagree. They all came out supporting the original intention of the act.

Mr Abbott—as we know, the old management—eventually abandoned the government's attack. He humiliated the Attorney-General by making him backflip on his signature policy. So now they are trying the backdoor approach. Now the Turnbull government is trying to hide what it really wants by co-sponsoring a private senator's bill. We will see Liberal senator after Liberal senator stand up and say that they do not support racist comments, they do not support bigotry—and maybe that is true—but they cannot stand in this place and make those comments and also support this bill. So there is something else going on here, because they are mutually exclusive points of view.

I do not stand for racism. I do not stand for bigotry. I am a feminist; some over there think that is a dirty word. I do not stand for the watering down of the Racial Discrimination Act, to take out the words 'insult' and 'offend' and to say that it is okay in this country to insult and offend people. Australians do not stand for that. Last year, when the Liberals tried to water down 18C, we saw a very, very strong reaction from Australians. A private senator's bill is a sneaky way to try and achieve exactly the same thing, because it does not have the currency of a bill that the government is promoting. But we all know on this side, Labor senators know, that it is the Liberal government, the Turnbull government, that is really promoting this bill. You would not see the Labor Party—the Labor senators or Labor members of parliament—co-sponsoring this bill, because, yes, we stand for free speech, but we do not stand for insults and offence. That is not what the Labor party stands for. We are proud that in 1975 Gough Whitlam had the foresight to introduce such a bill to say that Australians are inclusive, to say that we support free speech but not speech which insults and offends.

This year we saw the outrageous reaction to a dance that Adam Goodes performed on the football ground. Who would want to make all of those insults and offences that Adam Goodes received legal? Who would want to say that is okay? Let me tell you, as an Australian, I say that is not okay. I do not stand for insults and offence. I stand with Adam Goodes and other people who demonstrate their culture or their beliefs in a way that is not offensive, who should not have to stand and cop the sorts of racist comments that he has copped almost throughout his football career. You can stand here and say, 'Yes, I've been bullied. Yes, people have made racial taunts to me.' This is not okay, because those comments are painful and they leave a scar. Anyone who thinks they do not is kidding themselves.

The last time I defended this act I told the story of my granddaughter, and I think it is worth telling again. She is 11. She is Gidja. She lives in Geraldton. She went into a shop and she told me that the shopkeeper followed her and her mother around. When I asked Charlee why that happened, she responded by saying, 'Because I'm Aboriginal.' That is offensive. Who wants to make that legal? What happened to Charlee and the lesson she has learnt at the tender age of 11 she learnt many years ago.

I am often appalled when my fellow senator Nova Peris shares with me some of the emails that she receives. They are disgraceful. They use terms that went out in the 1960s—terms that I would not even repeat in this place because they are so offensive. This is because of the colour of her skin. What a disgrace! She is an Olympic hero and she puts up with that. If Nova Peris cops that, imagine what ordinary people cop on the street if they look a little different to me. It is a shame that my 11-year-old granddaughter has learnt that lesson at such a tender age—that the colour of her skin somehow makes her different to other people and causes other people to be suspicious that she might steal something from a shop. Well, I do not stand for that. I certainly do not stand for this Liberal Party amendment wrapped up in a private senator's bill.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

If Senator Lines is interested, and I am sure she is not, I am offended and insulted by her comment that all Liberals are bigots and racists. Does that mean that I should sue Senator Lines in a court of law for her view—inaccurate though it might be—of what members of the Liberal Party are? That was an appalling speech, I have to say, from Senator Lines. She is talking about free speech but she just runs out the mantra of the Labor Party that is dictated to her by the union movement, which represents no more than 17 per cent of all Australians. The Labor Party do not have free speech here or anywhere because if they cross the party line, as a number of government senators do regularly, and may well do in relation to this bill, they are expelled from the Labor Party. How is that for free speech, which Senator Lines so loudly claims she is in favour of?

I want to commence my contribution by congratulating Senator Day on bringing forward a bill which I thought my party was going to bring forward. It is something that we flagged prior to the last election as being an important issue that we would address following the election. The people of Australia still voted for us in large majorities right across the nation. Clearly, our indication to the Australian public that we supported this approach or this policy was not something that caused people to vote against us. I would assume, from the majority that we got, that most people supported all of our policies, which included that.

I am pleased that Senator Day had the courage to bring forward this bill. As a result of that, and I heard Senator Day speaking yesterday, he has been vilified by members of the Labor Party simply for doing what parliamentarians are supposed to do—that is, bringing forward legislation that they believe the people they represent support. And yet Senator Day's thanks for doing that was the sort of vilification we got from Labor senators yesterday. So I congratulate Senator Day on having the courage. I suspect he knew that he would be subjected to abuse and vile language. I can only guess at the number of horrendously vile emails that Senator Day would have received.

Senator Lines was suggesting that people get vile, hateful email. Gee whiz! I get them all the time. Should I be suing Senator Ludlam and his nasty little band of people called GetUp! for the emails they orchestrate to send me? Perhaps I do not have Senator Ludlam's great knowledge of Twitter. Perhaps I did not have Senator Ludlam's or Labor Party senators' advantage or privilege of attending expensive private schools and going full time to university and perhaps occasionally I get things wrong. That then leads Senator Ludlam and his nasty little band of GetUp! people to fill my email with what you could call hate mail—only I do not like to use that term. It is just insults, which says more about the people who are not only sending them but organising people to send them.

Australia has always been a very egalitarian and a very laid-back country. In fact, with the coming of modern Australia, one would think—and genealogists would perhaps give a better explanation of this—that a lot of the psyche, and a lot of the way we are as Australians, comes from the fact that we were established as a penal colony. The people who made our country, who pioneered our country—the modern Australia—had been subjected to transportation from European countries. Part of our psyche is that we are laid-back, we can roll with the punches, we can laugh at ourselves, we can deal with issues and we do not need governments to legislate to tell us when we can be offended and insulted.

Senator Day's amendment bill is very carefully and, I think, wisely drawn to remove the words 'offend' and 'insult' but to leave the act so that it would read:

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

The law as it would stand, should this bill be adopted, would still make it illegal to humiliate and intimidate anyone by making racist comments. I think that is fair, and I think most parliamentarians, indeed, most Australians would probably agree with that.

As it now stands if you offend or insult someone, which is a very subjective test, you can be subjected to quite substantial criminal penalties. Although it is not always based on race, if offending and insulting becomes a criminal act in Australia, we have lost one of those very valuable icons that define the Australian people. We are that laid-back group, we are that group that accepts everybody into the country. We are a group that has been made up, over a long period of time, of people from all nationalities, races, different colours and ethnic origins. That is what is so wonderful about the Australian psyche. To make it a criminal offence to offend and insult, as I said, is a very subjective thing and is, in my mind, just nonsensical.

Senator Cameron once said to me—and I am not quoting him exactly—'You're not fit to be a Scotsman's shoelace,' or something like that. Well, there is a racial comment against me, and perhaps I should have been offended and insulted by that. When I told Senator Cameron the other day that he should learn to speak English properly, he did not worry too much about that. I do not think he was offended and insulted. He certainly was not humiliated or intimidated by it but, of course, some people in his party thought they could make a little bit of an issue about it and got on their high horses. I am sure that Senator Cameron was not offended or insulted by that comment. If he was, well, so what? That is what Australia is about. If he was humiliated or, if me saying that to him had, in some way, intimidated him and made him want to resign from parliament or cut his wrists or something, then perhaps that is another issue. I am sure saying that would not be classed as humiliating or intimidating.

I find that the furore created by this bill difficult to understand. The subjective test of 'offend and insult' is not something that should attract criminal penalties in whatever way the offence or insult is given, whether it be in relation to race, political beliefs or age. I get a bit of comment because of my age from people who say that they are not bigoted, racist, ageist or gender critical. They say that, and you then see how things come out. Nevertheless, if people want to offend and insult me, that is fine; I am not going to slit my wrists. That is how I have found people right across Australia to have been in what has now turned out to be a long life.

I grew up in the immediate post-war period in a place called Stanthorpe where there was a big cohort of principally Italians who had been there for some time. During the war they had sided with the Germans and they were a bit ostracised. I can still remember people who may have been treated a little bit differently in those days. They were part of Australia. They had come to Australia, as most people do, because of the way we are as Australians, because we can have a go at each other. When I was starting school, people who may have been singled out because they were Italians are people who are now leaders of the community. They have worked hard and have built up their assets, and they are now leaders in every aspect of our community.

I remember my good friend Senator John Panizza was one of them. I might say, the Labor Party in this chamber used to laugh at him when his English was not quite as good as it should have been. I was always absolutely disgusted at the way Labor Party senators used to do that. Senator Panizza is a great example of the types of people who would have had a difficult life when they first came to Australia. They wore different clothes, they did not quite speak the ocker language, but they worked hard and they succeeded and ended up very wealthy, as Senator Panizza did. He became a leader of his community. Where I live now, in Ayr in North Queensland, the Italian, Spanish, Greek and Southern European cohort of third and fourth generation is the group that, as I say, have worked very hard and have done very well. They are now, absolutely, community leaders. They are in that situation because they came to Australia because of what we were. They have contributed to what Australia now is.

This idea of trying to legislate against offence and insult is just not what Australia is about. Sure, if it goes further and humiliates and intimidates, perhaps that is something that a parliament should legislate about. But this amending bill, of course, continues the criminality of humiliation and intimidation. I support free speech in Australia and that is something that this country should be very interested in.

I have heard much better prepared and much more intellectual speeches from some of my colleagues here. I particularly noted Senator Seselja's fine contribution to this debate earlier. I agree entirely with nearly all of what he said. I think the furore that has been raised by the Labor Party, for whatever political purposes they might think are appropriate, is just ridiculous. Again, in itself it is un-Australian. I again congratulate Senator Day and those other senators who co-sponsored the bill. I am not a co-sponsor but I have indicated all along that I believe that the bill is the right way to go. It will receive my support. As I say, it is what my party took to the last election. Most Australians were aware of our party's position on this, and it certainly did not impact upon the very large majority that my party received at the last election.

This idea that government should legislate to prevent people being offended or insulted is, quite frankly, ridiculous. I repeat, as others have said, offence and insult is a very subjective test. What people say to one person may offend and insult, but they may say exactly the same thing to another person and it will not offend or insult. Government should not be legislating to define or to make criminal words that offend and insult people on the grounds of race, colour, national or ethnic origin or anything else. Why not have a law in case I am offended or insulted because someone says I am old? Why don't we make that a criminal offence? It would not worry me, I might say; I do not care if people offend and insult me because I am old. But are we going to legislate to stop that? Perhaps as an older person I am in a minority. Are we going to legislate to protect this minority, of which I am part, because I might be offended by what someone says about that?

I think this is a most uncontentious bill. I think it could almost be passed as a non-controversial bill, if people were thinking clearly about it and not following the party line. Perhaps some in the Labor Party see some political merit in making an issue of this. Australia is a wonderful country. We cherish our free speech. We cherish each other. We cherish people from all nationalities who have made Australia what it is today. We, as a nation, do not need government legislation to prevent us from offending and insulting one another. I strongly support the bill and again congratulate Senator Day for bringing it forward.

Jenny McAllister (NSW, Australian Labor Party) Share this | Link to this | Hansard source

This is really quite exquisite timing because on 31 October this year we will mark 40 years since the Racial Discrimination Act came into effect. We should be commemorating what was one of Whitlam's most enduring achievements. Instead, we have to defend it. It is a shame that some in the Liberal Party think it necessary to water down the race hate protections in the act. We hope that the new Prime Minister shows the strength necessary to stare down the less tolerant parts of his party. But we do not have much reason to hope because the Prime Minister himself has said to Andrew Bolt that he is 'very comfortable' with the measures in the bill. I am not comfortable with the measures in this bill, and neither are the Australians of all backgrounds who spoke out against the government's divisive proposal—Indigenous Australians and the most recent of migrants, Jewish people and Arabic people, and people of all political persuasions.

It might be that some opposite need a history lesson on why it is that we have the Racial Discrimination Act in the first place to understand why it is that we should not be watering it down. It is true to say that Australia has long struggled with racism, but it is probably fairer to say that Australia's minorities have long struggled against racism because it is they who have borne the consequences of prejudice. Unhappily, it is the case that the White Australia policy was one of the first pieces of legislation passed by this parliament after Federation. Prime Minister Edmund Barton argued in support of the bill, saying:

The doctrine of the equality of man was never intended to apply to the equality of the Englishman and the Chinaman.

And for the next 60 years, the doctrine of equality was not applied in Australia. All sides of politics share the blame for the discrimination that was entrenched in Australian life. Racism was not a minority view, nor was it a quiet one. In 1948, for instance, 57 per cent of respondents to a Morgan Gallup poll thought that the immigration of 'coloured peoples' should be stopped. These 57 per cent were not all bad people. They simply grew up in a time when racist beliefs were not just acceptable but could be passed off as a mark of civilisation. Nor was Australia alone in housing these beliefs. Racism has been and still is a global struggle.

None of this, however, made racial discrimination any easier to bear for those who suffered it. We will never know the cost of having turned away people because of their race. We do not know how many brilliant minds we turned away nor how many humble people who would have lived honest lives. What we do know, however, is the indignity and harm wrought on those of different backgrounds who made it to Australia, people who were denied jobs or education because of the colour of their skin, immigrants and their children who would hear families just like their own vilified on TV or in the papers simply because of where they had come from—the national shame of the stolen generation.

Forty years ago, this parliament looked at this past and said 'no more'. It was not a unitary effort; Australia's racist policies had required the connivance of both sides of politics, and dismantling it likewise required their cooperation. The Racial Discrimination Act was passed with bipartisan support. This did not mean universal support, however, far from it. Paul Keating later described the act as a 'very brave piece of legislation'. Only as brave a Prime Minister as Whitlam could have made it law.

It is instructive to recall what was said in this chamber when the bill was debated. One popular view was expressed by the senator who remarked:

Sometimes people have an aversion to others either because of personality, race, creed or whatever it might be. Does that mean it is such a bad thing? ... The fact of somebody having a racial attitude towards a person should not worry that person.

Or, to give it a more modern phrasing, people have the right to be bigots. I guess that, 40 years on, some things have not changed. But other things have changed and that is why it is so important to oppose this bill.

We are truly a multicultural nation today. The last census revealed that almost one in four Australians was born overseas and more than 43 per cent of us have at least one parent who was born overseas. The bill that is before us today is a product of a mindset that cannot even countenance tolerating difference let alone celebrating it. What I think we need to do, however, is value this diversity for what it is: our country's greatest competitive advantage in a global market place.

We are a successful, multicultural country with an educated multicultural people. This is something that the old economies of Europe do not have. They remain largely a monoculture and their migrant populations have very different educational and community profiles from ours. We cannot rest on our laurels in this respect. There is much to be done in ensuring that people from different ethnic backgrounds are able to enjoy the success they deserve.

There has been much discussion recently about a bamboo ceiling that prevents people from Asian backgrounds from reaching the management and leadership positions that people with similar or even lesser qualifications and experience are able to reach. It is a huge mistake if we do not capitalise on the raw human talent that we have.

This is the century of the south. We have heard from the government ad nauseam recently about the importance of trade linkages with China and other countries in the Pacific. Well, the people in Australia who are in the best position to help us take advantage of these opportunities are the well educated people with cultural understanding and links to these nations—in other words, the very people that this government slaps in the face.

It is difficult to conceive of this bill as anything other than an insult to ethnic communities in Australia. What is startling is the urgency with which it has been brought on. This is a government, we should remember, that thought that it was too busy with other matters to debate same-sex marriage and would not let that private member's bill onto the floor—no time for love, but when it comes to people's right to be bigots, this government clears a smooth passage onto the floor of the chamber.

The question we need to really ask is: why is this so important? Why is it so important to allow people to offend or insult people of other backgrounds? What are the situations where people have a legitimate debate fouled because of these provisions? That is what I think we should hear from the other side—a list of the types of racist and insulting statements the supporters of this bill have in mind that currently cannot be said because of the bill as it stands. It is all well and good to talk in esoteric terms about the freedom of speech, but what we are really talking about here is speech that is on the margins, speech that has the ability to poison the tenor of public debate, speech that is toxic to our community.

It is worth remembering why the original bill, the government's bill, was withdrawn by former Prime Minister Tony Abbott in the first place. He thought that the divisiveness of the government's attack on race-hate protections was distracting from national security issues. You do not need to make an instrumental argument against race hate and divisiveness. You can oppose it on its face. And you should.

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

I rise to support Senator Day and his co-sponsors' Racial Discrimination Amendment Bill 2014. I commence with a quotation from the French philosopher Voltaire:

I disapprove of what you say, but I will defend to the death your right to say it.

The principles of the French republic, the three pillars—liberty, equality and fraternity—go to the absolute essence of what we are discussing in this chamber today. Voltaire ,1694 to 1778, a writer, historian and, of course, philosopher wrote:

I disapprove of what you say, but I will defend to the death your right to say it.

If I can stay with the historic quote for a further moment and that of the first president of the United States of America, George Washington. I quote Washington's comment because it is relevant to our discussion in this place today. He said:

If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.

Washington was acclaimed as probably the most famous and influential of the presidents of the United States, which of course he led into independence.

I have heard a lot of debate and discussion but I have not heard too many definitions. I propose now to place on the record the commonly accepted and indeed dictionary definitions of some of the words that we are debating here today. The bill proposes to remove the words 'offend' and 'insult' from section 18C of the Racial Discrimination Act 1975, which currently makes it unlawful to 'offend, insult, humiliate or intimidate another person or a group' on the basis of their 'race, colour or national or ethnic origin'. That is what we are addressing today.

I applaud Senator Day for his initiative in bringing this bill before this chamber, which surely must rest at the base and the root of Australia's democratic system. Because if we cannot debate it, if we cannot come to the conclusion as to what is free and what can be said in this country then the courts have got no basis upon which to make their statement, so I do now want to put onto the record the definitions. The first word is 'humiliate'. The definition of humiliate: to humiliate is to injure the dignity of self respect of a person or a group, to embarrass or to put them down. As I understand from Senator Day's bill, there is no intention to remove the word 'humiliate' from section 18C as amended. The second is the word 'intimidate'. It is defined as to frighten or to overawe, especially in order to subdue or influence. A further definition: to threaten. And, again, unless I am mistaken, there is no intention within Senator Day's amendment to section 18C to have any effect, to leave 'humiliate' and 'intimidate' in the amended bill.

I now want to go to the definition of the two terms that are proposed in this bill to be deleted or to be limited and they are 'offend' and 'insult'. The definition of the term 'to offend': firstly, to cause offence to or resentment in, to upset; secondly, to displease or to cause anger; thirdly, to do wrong or to transgress. And that is one of the two words that are proposed in the Day bill to be removed. The second is the term 'insult', which refers to speaking to or treating a person with scornful abuse, to make an insulting remark or an insulting action or something that is so worthless or contemptible as to be offensive.

Whilst we are on the topic, since it has been thrown around—although it is not included in the words of 18C now and not included in the intended amendment by Senator Day and his cosponsors—I will introduce the term 'bigot'. A bigot, by definition, is an obstinate believer in religion, a political theory or similar who is intolerant of others and who tries to impose his or her views on others, a person who is prejudiced. That is what the definition of a bigot is. I would venture the opinion that on many of the occasions when we are speaking in this chamber, when we are countering the views of others who have spoken before us, we certainly express a level of intolerance to the view of others. We certainly in the words that we use would, in the view of the listener or an observer, be considered to be trying to impose our views on others. That is what the term 'bigot' means.

I turn, as indeed others have, as indeed Acting Deputy President Bernardi has, to the comments of many people in this debate in terms of where they stand on freedom of speech and the words 'offend' and 'insult'. If we take the commentary of Mr David Marr, a person who, as you said, I believe, in your contribution, Acting Deputy President Bernardi, and—I will repeat—a person who would not agree with most areas or positions that we would take. He said:

…in a free and energetic society, giving offence is necessary.

'Offending' and 'insulting' are the two terms that are proposed to be deleted. Marr goes on to say 'offence and insults are the everyday reality of free discourse' in a free and open and democratic society.

I imagine even some of the young people looking down on us today would certainly in their conversation in the classroom or the playground on occasion have said things of offence to others or, indeed, may have insulted a classmate or friend. Should they, in their maturity beyond the age of 18 years, be dragged before a court and be the subject of an action under the Racial Discrimination Act? Of course they should not. In fact, as Marr said:

Hurt feelings should never attract the law as they do now under section 18C.

I wonder if the young people who are listening to what is being said today are aware that, once they reach the age of 18 years and possibly even younger, if they do hurt the feelings of another, they may in fact attract the law under section 18C.

Professor James Spigelman, a former Chief Justice of the Supreme Court of New South Wales and Chairman of the ABC, made this comment:

I am not aware of any international human rights instrument or national anti-discrimination statute in another liberal democracy that extends to conduct which is merely offensive.

He goes on to say:

The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.

I was very impressed with the first speech of our Western Australian Labor Senate colleague Senator Bullock. He said:

To be tolerant of your views I do not need to pretend that you are just as right as I am but rather to accept that you have a perfect right to hold a view I believe to be wrong, even if I find your view offensive.

I look forward to robust discussions with Senator Bullock at different times on different topics in which we will be in disagreement and indeed as we have been. If he finds my words offensive or insulting, he has the perfect opportunity to retort and to come back to me in the way in which he wants to.

I will defend strongly the continuation of the words 'humiliate' and 'intimidate' to be held within 18C. They are deeply offensive to anybody. The fact that somebody tries to injure the dignity and self-respect of others, to put others down as either an individual or a group—the concept of someone trying to frighten, subdue, influence or threaten a person or a group of people—is deeply offensive in Australia. It is absolutely counter to the fundamental that created the essential Australian system of mateship. It is the absolute anathema of mateship that one would attempt to humiliate or intimidate.

Since mateship probably had its origins in the battlefields of Gallipoli and other places, you had better believe that there would have been plenty of rejoinders that somebody listening from the outside indeed may have seen to be offensive or insulting. The term 'bastard', as we know as Australians, will have many different meanings depending on the context in which it is used. Somebody from another country may think that a person is being deeply insulting or offensive to use that term when indeed they may actually be using it as a term of endearment. But of course we would never relate that term to humiliation and intimidation in the context of mateship as I speak.

In considering my contribution to the amendment proposed by Senator Day I reflected on some of the feedback I get to some of the contributions I make in this place and outside it. I have spoken at different times, for example, in terms of hormonal balance within the foetus. I have indeed made the observation that maleness is suppressed femaleness in the embryo and the foetus. I have drawn attention to you, Acting Deputy President Bernardi. I remember in one contribution making the point that, foetally and embryologically, you in fact were female before you became male. I received a lot of emails at that time which I would certainly regard as having been offensive. Indeed, I don't know if they might not have been from some members of your family! Or they may have been insulting.

I have made other comments about embryologic development in the animal species and the human species and I have incurred the wrath of people who have emailed me. I can assure you that those terms were deeply insulting to me. I am known to be a person who very strongly endorses and promotes the live export of production animals from this country. You would understand and had better believe that over time there have been and will be more communications to me, to my family and to my staff which any reasonable person would say are offensive and insulting—sometimes, of course, as you know, beyond that. Section 18C as it stands at the moment would allow me to drag such a person before the courts because they have expressed their democratic view that what I have said, in their view, is insulting or offensive.

Certainly there has been no attempt in those circumstances to intimidate. If there were, they would have to expect a different response from me. But, as a public person, as we all are, if we express our views openly and freely then we must be the subject of communication from others who would disagree with us. That person must know that they are free of the possibility of being dragged before a court.

I conclude my contribution with the words of the Attorney-General and now our leader in this place:

By making the reasonable likelihood of causing offence or insult the test of unacceptable behaviour … section 18C is a grotesque limitation on ordinary political discourse.

Surely this country was born on the principle of the freedom of political and related discourse. I commend Senator Day for his initiative in proposing this amendment bill. It is reasonable. It leaves those offensive words 'intimidation' and 'humiliation' in, and it removes the words 'offend' and 'insult', which have no place in a modern democracy

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

I rise to speak against the amendments put forward by Senator Day in the Racial Discrimination Amendment Bill 2014 to weaken our racial discrimination laws in this country. I do so because I see these amendments as anathema to the social inclusion and national unity that this country, at this point in time particularly, is so crying out to achieve. In fact, I was very pleased to join with so many faith leaders this week here in Parliament House for the National Day of Unity. Representatives from the Muslim, Sikh, Christian, Jewish, Buddhist, Baha'i—so many different faiths—came here to Parliament House to stand with us, leaders in our own community and members of parliament, to say: 'We stand together against hate speech. We stand together against bigotry. We stand together to celebrate the diversity and mutual respect that we engender amongst each other to foster positive relationships between all faiths and all ethnicities.' Why would anyone want to reduce and weaken that bond that we have? That is how I see an attack on our racial discrimination laws—laws that have served this country for the last 20 years very, very well, laws that provide for freedom of speech.

We have freedom of speech in this country, and it is provided for within the very piece of legislation that this senator is trying to weaken. As he would be very well aware, it is provided for in section 18D of the legislation. We have gone through this debate. We have gone through this debate tirelessly under the Abbott government. We saw very clearly that, after an immense amount of community pressure and pressure from the opposition, the Abbott government and, embarrassingly, the then Prime Minister Tony Abbott himself, had to tell the Attorney-General that his ideals in trying to reduce our racial discrimination laws in this country were a bad step and he had to withdraw them. Of course, that was welcomed. It was very much welcomed by all of the faith leaders and the community at large, but little did we know that it was going to be temporary. Little did we know that, if a senator from another party were to introduce amendments—changes which look very similar to those that were introduced by the Abbott government—the new Turnbull government would not come out and say: 'No, we dealt with that. We said that we were not going to weaken our racial discrimination laws in this country, and we will not support Senator Day's bill.' That is not what we have had from the new Turnbull government.

Everyone thought that, with a new broom at the top, it was all going to be different. Why doesn't Malcolm Turnbull, the Prime Minister of this country, show that he is different? Why doesn't he show that his government is different and say that the coalition government in this country will not support Senator Day's weakening of our racial discrimination laws? We have had absolute silence from the Prime Minister. Instead, we have had the contributions of a number of his backbench and a number of individuals in this place, particularly, such as Senator Back's contribution just now. Acting Deputy President Bernardi, you have also made clear your support for the weakening of the racial discrimination laws. So who is to know where this government stands? You are completely divided on this—completely divided. You have some who are still standing firm on the previous government's complete rejection of the Attorney's attempt to weaken these laws, and then you have others who are very much in support of the attempt.

That is not good enough. That is not good enough for this country to go forward with. That is not good enough to tell to faith leaders, who need more than ever at this time to know that their government is standing strong and firm with them in support against hate speech. That is what our Racial Discrimination Act provides. It provides very strong and robust provisions, particularly in 18C, that give this multicultural country of ours something to feel strong and proud about. We know that all of those rallies, petitions and delegations of community leaders who came to this place meant something. Those of us on this side listened, but it seems that those in government are now willing to turn a blind eye to all of that support for our racial discrimination laws and to all of that opposition against what the coalition government was trying to do. They are completely ignoring all of those leaders—Indigenous leaders, Jewish leaders, Arab leaders—and trying to bring these awful amendments back through this place.

That is not what you will find from the Labor Party. We stand very firm with all of those faith leaders and those community leaders. We do not want to see racism and bigotry in this country. We do not want to see the likes of Frederick Tobin back preaching his anti-Holocaust rhetoric. We want to ensure that we have decent and fair laws in this country that deal with hate speech. That is what our Racial Discrimination Act has provided for a very, very long time. What on earth is the motivation behind this particular senator and behind those senators who want to weaken these laws? What is your motivation? That is what I ask you. You cannot say your motivation is to have freedom of speech in Australia, because we have freedom of speech in Australia under this particular law, and you all know it—in section 18D, we have it. Of course, all freedom of speech has to have some limits. Do you really want to live in a country where hate speech is on your doorstep, where it is okay to have the likes of Frederick Tobin go out there and preach his Holocaust-denying, awful speech? No, we do not. We do have some limits. But I can tell you: the bow is pretty long when it comes to freedom of speech in relation to race in this country and those provisions are in this law, the Racial Discrimination Act.

I think it is important to remember the reason given by the then Prime Minister, Tony Abbott, for his change of policy. It was in August last year when, in the wake of the emerging crisis in Syria and Iraq, Prime Minister Abbott admitted that the divisiveness that his government had created, the divisiveness of his government's attack on race hate protections, was a distraction from national security issues. That was the excuse he gave for abandoning the weakening of our racial hate laws. In doing so he threw the baby out with the bathwater, so to speak, and that was the end of the weakening of these laws. We now find ourselves in a very similar position. More than ever, we need unity in this country, and the episodes that have occurred in the last week or so in Victoria and in New South Wales prove that more than ever. So why would anyone come into this place right now and try to weaken the national unity that we have in this law, the social cohesion that is provided in this law? Why would anyone come in here and open the gates to hate speech at this point in time? It is beyond me in any circumstances but it is particularly beyond me at this point in time.

Labor stands very firmly against extreme hate speech, which section 18C has covered. The Australian people made very clear their opposition to the coalition government's attack on racial hate speech, so my message to Prime Minister Malcolm Turnbull is: show that you are different from the previous Prime Minister, Tony Abbott. One way you can show that is by rejecting this amendment and standing firm with our faith leaders and our multicultural communities and ensure that this law remains as strong and robust as it has for the last 20 years.

Debate adjourned.