Joe Ludwig (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I rise to talk about the Australian Law Reform Commission report Traditional rights and freedoms—encroachments by Commonwealth laws. I commend the report as an exceptional document that very much goes through all of the traditional rights and freedoms that are encroached on by Commonwealth laws in a fashion that is both comprehensive and well researched. However—and this is not a criticism of any of the contributions or submissions and all of the people who worked very hard to produce the report—this is what I would call the Bolt report. Ultimately, this was about Senator Brandis, the Attorney-General, trying to justify why Mr Andrew Bolt got it so wrong. The Law Reform Commission do go to that particular issue in the report, and I will come to that shortly.

Before I do, it is worth remembering that in Australia there are limitations on freedom of expression. The Australian Constitution does not expressly protect freedom of expression, although we are a signatory to the International Covenant on Civil and Political Rights. There is many a case where there are clear limitations, and those limitations are across a broad spectrum of legislation—defamation, discrimination and antivilification; classification and censorship; at the criminal end, treason or urging violence, the old sedition type penalties; and disclosure of public information, whistleblowing—for which there are now protections—and public interest disclosure. All of those have legislation in place which provides protections and do not permit unfettered, free speech in that area.

Coming to the whole report, which the government commissioned, there is a section dealing with the Racial Discrimination Act; and, in fairness to the ALRC, who produced this report, they do a comprehensive analysis of the area. They do get to a very telling phrase when they look at section 18C of that act:

Australian racial vilification laws have long been the subject of academic and other criticism.

It goes on:

The ALRC has not established whether s 18C of the RDA has, in practice, caused unjustifiable interferences with freedom of speech. However, it appears that pt IIA of the RDA, of which s 18C forms a part, would benefit from more thorough review in relation to freedom of speech.

This was a report commissioned by the government to uphold their view that section 18C should be changed, notwithstanding that Mr Abbott backflipped on it when he was a Prime Minister and wiped Senator Brandis on it as well. Even this report commissioned by the government does not concur with Senator Brandis's view. He will get some comfort out of it. They have tried very, very hard to throw him a lifeline. But all have thrown him is a cotton thread to grasp onto. It will not support him; I have no doubt about that.

The final report of the ALRC into this matter highlights, I think, that Senator Brandis was on a hobbyhorse and that, wrongly, he was supporting Bolt. When you look at the case that was lost by Bolt, the real kicker is that the section 18C issue is not about Bolt. When you look at how that has worked for almost 20 years, Bolt is a distraction. Bolt was not liable merely because he offended; he was liable because he failed to establish the case.

I seek leave to continue my remarks.

Leave granted.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Like Senator Ludwig, I rise to speak on the Australian Law Reform Commission report Traditional rights and freedoms—encroachments by Commonwealth laws, its final report on this matter. I start by congratulating the commission president, Professor Rosalind Croucher; the other commissioners; and the staff at the commission on the extensive body of work they have undertaken and the rigorous way that they have approached what I have no doubt was a report that required significant time, effort and commitment.

The commission finds, in this report, that 30 laws in Australia require either further consideration or review by bodies such as the Independent National Security Legislation Monitor, the Law Reform Commission, the parliament or the government. It will come as no surprise to many Australians that the vast majority of these laws are concerned with national security, counter-terrorism and the Migration Act.

The report notes that parliamentary scrutiny is not as effective as it could be, pointing out that, since the inception of this parliament's human rights committee, over 50 bills have been passed by this parliament before the committee has completed its review of the specific legislation. In addition, and importantly, it notes that Independent National Security Legislation Monitor recommendations do not receive a government response—which frankly is not good enough. It also notes that the Independent National Security Legislation Monitor Act needs to be strengthened. The Greens could not agree more with that observation.

Since 2002, Australians have faced a massive volume of legislative change made in the name of counter-terrorism and national security. These have often been reflexive and populist changes driven by a desire of governments of both stripes to be seen to be doing something and to be bidding ever higher in the never-ending 'law and order auction' in this country, rather than being driven, as they should be, by a genuine desire to make Australia and Australians safer. Since 2002, we have created 12 new crimes, we have extended legal powers seven times, we have extended police powers or granted police new powers 16 times and we have increased powers to our intelligence agencies 12 times.

Let's face it, in this country we have been trading away the fundamental civil and human rights that tens of thousands of Australians have fought for and, in some cases, died for to protect and enhance. Throughout that period, no evidence has been offered that we are making Australia or our people any safer by trading away those rights. Unfortunately, given the political rhetoric we have seen in the last couple months, it seems that more changes are looming. With an election this year, it is almost inevitable that the coalition and Labor, who for a long time have been in zombie lockstep on this issue, will both put out policy positions that keep the bids coming in the law and order auction.

What we need to do is think about this more strategically, more carefully and more holistically. In the same way that we have a white paper process for defence issues, it is time to revisit a white paper on counter-terrorism as we did in 2010 when the last one was published. It needs to be updated, reviewed, reconsidered and republished. During that process, evidence needs to be offered, if there is any, that trading away these civil and human rights that are so fundamental to the Australian value of a fair go for all our citizens is making us safer. If there is any evidence that it is making us safer, that would be the time to present that evidence.

What we see in this sector from both the coalition and Labor is knee-jerk 'law-mongering'. We need to better assess the difficult but critical balance between safety for our people and our country and freedom in our country and for our people. We have seen some terrible laws passed that limit rights. Unfortunately, Labor has rolled over time after time—on metadata, on new powers to security agencies, on locking up women and children on Manus and Nauru. It is time that we had a serious consideration of these matters. (Time expired) I seek leave to continue my remarks.

Leave granted.