Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

At the request of Senator Dastyari, I move:

That the Senate notes that the Prime Minister (Mr Turnbull) has repeatedly said making changes to section 18C of the Racial Discrimination Act is "not a priority" but has refused to rule them out.

As you well know, Madame Acting Deputy President Reynolds, in this parliament in the last sitting the particular issues around the Racial Discrimination Act were heard many times in discussion—even, I would think, in serious debate many times. In my opinion, that is a very good thing. I think that having more people who really understand the way our legislation operates and who question the way our legislation operates can only make the legislation stronger and also community education more effective. So, whilst I sincerely disagreed with many of the people who emailed me and many of the people who talked to me at community events about their views about section 18C and, not so often but sometimes, section 18D of the Racial Discrimination Act, I was pleased that they felt that they could have the conversation.

Whilst having that conversation in the last parliament, we had an outpouring of concern around any attempt to make change to this legislation. The legislation has been on the books for 20 years, and I am not sure whether, in that 20-year period, anyone had really talked about it too much. But certainly, as a result of some issues being raised in the previous parliament, they did, and it became almost a cause celebre in many ways because there was seemingly an argument in our community about the right to free speech.

I do not think that there is anyone in our nation who does not believe that Australians do have the right to free speech. It is something that we sometimes take for granted. However, the issue that caused so much concern in the last parliament was whether this issue of free speech came alone or there were any responsibilities that came with having open, free speech. I believe that many people in the community agreed that, whilst we do have free speech because that is a democratic right, that right of free speech is very much countenanced by responsibilities.

The Racial Discrimination Act, over 20 years ago, did put some responsibilities around our right to free speech. Specifically it said, in section 18C, that free speech could not in any way hurt, offend or abuse. I think that continues to be the key question. For me, there is a question for all of us and particularly for those people who now again have brought out their concerns about 18C in our current situation. I just want to know, from people who question 18C, what hurt, offence or abuse they believe should happen in our community. I strongly believe that the people who framed the legislation really meant to ensure that we could balance the right to say whatever we wanted to say with another, equally important right: what we wanted to say should not be framed in a way that would cause hurt, offence or abuse to other members of our community.

What was hoped to be achieved 20 years ago in the RDA was that we would build a strong community that was based on respect. The reason that that legislation was brought forward is that we had ample evidence in our community that there was insufficient respect—that there was not a sense for everybody in our community that they felt safe, secure and respected. For people who are going to be involved in further discussion around the issues in section 18C of the Racial Discrimination Act, it would be useful to go back and see what caused the framers of 18C to make the legislation.

For those of us who remember—and, whilst I was not in this place 20 years ago, I was certainly in the wider community, and I had an interest in issues around discrimination—we had a series of pieces of legislation and a series of community reports, Senate reports and also statements that highlighted, to our shame as a community, that there was effective discrimination based on race that was occurring in our community and had occurred historically. People would remember the National Inquiry into Racist Violence in Australia and the Royal Commission into Aboriginal Deaths in Custody, and we will be absolutely privileged to hear a first speech in this place this afternoon from a man who was deeply involved in that process. I look forward, as I am sure we all do, to hearing Senator Pat Dodson make his first speech in this parliament.

Senator Dodson, in his capacity as a commissioner many years ago, was active in raising awareness in our community about the horrors, the hurt and the damage of unfettered free speech that would attack people on the basis of their race. The Royal Commission into Aboriginal Deaths in Custody set down a baseline which said, 'This is what has occurred in our history; this is what is still occurring'—at that time—'and we must put into place many recommendations.' As you would remember, many recommendations came out of that seminal inquiry, which was publicised widely across our country, but part of those recommendations was to ensure that we would look at the way we would operate as a community. We would identify behaviours and actions which would cause offence, and we would work together as a community to respond to that.

So, as to other things: we had another inquiry that was done by the Law Reform Commission, a group that I respect deeply and whose reports I value reading whenever they come out. At that time, they released a report on multiculturalism and the law which highlighted the way people from different backgrounds were being treated by our law and how they felt as though they had some restrictions on their ability to access legal justice.

As well, we had our international commitments. Australia, as we know, has been a leader in signing up to a range of international treaties. We go back to the actual formation of the League of Nations and then the United Nations, where Australia has always been a leader. We signed up to a range of international treaty obligations, including the International Convention on the Elimination of All Forms of Racial Discrimination; we have clearly identified that we, as a nation, would be part of that treaty obligation. And when you read that treaty you will see that we accept that we will work to eliminate any form of behaviour or action which would cause discrimination to people on the basis of their race. And part of that, I believe, was the introduction of the racial discrimination legislation, in which are sections 18C and 18D. In those, we balanced this ability in our nation to celebrate our freedom to speak freely with the responsibility—aware of our history; aware of the indication of where hurt and concern was caused—to moderate that right. That is still the situation now.

So again I say: what hurt, offence, abuse, elimination and discrimination do people want to use their speech to cause? And when I ask that question of the people who are saying that they need to go back and rescind this legislation, they are nonplussed. If they go to define what they want to say publicly, they are nonplussed as to saying how that would impact on another. And when we cause people to get together and work through that process, I think that we will achieve what the people who wrote the Racial Discrimination Act would have intended us to.

We, together, can identify what in speech causes offence, what in speech causes people to feel unsafe and what in speech causes people to feel unworthy. And if, by our free speech, we have that effect, I think we should be seriously thinking about how we are using free speech.

In these discussions, we often talk about the individual and the individual impact, and, coincidentally, amongst all the emails that I have at the moment, as we all do, on issues that are important to our nation, there was one from a young man in my state—and I am not going to use his name because he emailed me, and I do not think he wanted his particular name known. His opening cry in the email simply was: 'Please do not change 18C.' To begin with I was pleased that a young man knew what 18C was. But then I went on to read his email, and it was gut-wrenching. He talked about the fact that he was from another country—he and his family had come over here—and he had been subject to bullying and also abuse, linked to the way he looked, the way he spoke and the way he behaved. He said in his email that, when he talked to people about how he felt—and it took him a while to have the courage to talk to other people about how he did feel hurt, offended and excluded by what people in some ways thought could have been a bit of a joke—he was made aware that, in Australia, under the racial discrimination legislation, what was happening to him had been declared to be wrong.

He did not take any particular grievance up. He did not write a submission to the Human Rights Commission claiming that he had been vilified. But becoming aware that this legislation was in place gave him strength to be able to build his response to the people who were bullying him and causing him harm. So, in many ways, that sums up for me the argument as to why this legislation is important. It means that people who are damaged know that our nation has said that that is inappropriate.

Some of the people who have contacted me on the other side, who claim that they should have completely unfettered free speech, indicated that they felt that this piece of legislation was stopping the activities of operations in our nation. So I then went back to check with the Human Rights Commission to see how many complaints had been received by the Human Rights Commission under this particular clause. To begin with, the number was extraordinarily small—and I know that my young man in Queensland was not one of them. But the numbers of people who took their concerns to the level of putting in an actual complaint was very small. Then I went further, to find out what happened when these complaints were received by the commission, and I looked to see how much legal action there was and how much the courts were being damaged by the number of complaints that have been put forward. What I found out from talking with the commission was that, even for most of the claims that got as far as someone making a complaint—having the strength, I believe, to put in a complaint about what they felt was wrong—most of those situations were resolved by having mediation. The people involved could sit down together and work through what the complaint was and what the impact of the complaint was and what caused the action to occur. Thankfully—and, I think, most successfully—most of these actions were mediated and there was no further action but an agreement that a process had occurred and that there would be no further action taken. Some—and I have not got the numbers with me—did go through to much further action, though not many. Unfortunately, they are the ones we see in the media—the ones that get the highlight in that process.

Nonetheless, as I said about the issue with the young man in Queensland who felt vindicated and strengthened by the fact that they had some protection under legislation, I believe one of the true values of the clauses in the Racial Discrimination Act that look at free speech is that it causes people to know that there is an understanding in our community and an understanding under law that it is not appropriate and not right to use free speech to hurt or abuse or harm.

I know that we are going to hear much more about this issue over the life of this parliament. I genuinely hope for the response that we had in the last parliament, which was such a strengthening and gathering of people across the community from a wide range of multicultural groups, churches and community activists who got together to say that they did not want to have this legislation changed, that they wanted to ensure that people understood that, in Australia, our right to free speech is effectively balanced by a protection: that people should not have freedom to harm, freedom to abuse, freedom to offend. In that process I am hoping that that same community reaction will occur again.

Maybe the way to ensure that we understand the rights of free speech is to have someone like Senator Bernardi come forward with the full support of so many other people from the other side of politics to put this on the agenda again so that we will be able to continually in the parliament have a look at the way we believe free speech should be. We would be able to continually challenge our community to see how they believe free speech should happen. We would be able to challenge our community so that they, if they have not been subject to attack, discrimination or exclusively, will have the ability to put themselves in the place of someone who has. If they do take that opportunity, if they do then see how they would personally feel if they were the victim of someone speaking freely in a way that they would find offensive or harmful, would they still champion a change to 18C?

That continues tonight to be my challenge. Have a look at what the legislation says. See what the intent of the legislation was. Have a look at the environment which led to the legislation being developed and genuinely look at what is occurring in our society, in our community today. See if there have been any changes. See whether people are more prepared to abuse others on their racial basis. See whether there is any more preparedness to think that we have the right to hurt.

I truly believe that, once the community understands the legislation, they will begin to challenge anyone who thinks that we have the right to say anything about anyone at any time which could be harmful and particularly if we use their race. Remember we are talking about the racial discrimination legislation. See if it is appropriate to use someone's race in such a negative way that it could be harmful. I believe that we are able to communicate more efficiently and effectively than that.

If I have trouble with somebody else because of their race—and I am trying desperately to think how that would happen, but if it did. You should never say that nothing could happen, but if I were having a difficulty with another person that was linked to their race, I would really hope that I would be able to communicate what was affecting me, what was causing me concern without causing them personal concern, that I would be able to identify what the issues were, explain what I was doing and ensure that I would be freely able to make that comment and, in making that comment freely, I would be aware of the impact of my words. Sometimes in this place we forget that, once the words have been said, they can never be taken back.

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

It is indeed a great honour to be elected as a senator and to participate in our parliamentary debates; there is no doubt about that. What makes the institution of the Senate so important is that those 76 senators that find themselves here come from diverse backgrounds, work tirelessly to get here and work tirelessly to stay here so they can contribute in our national debates. Sometimes, I do not mind saying, it is tiresome to come into this chamber, to witness the relentless politicking, to be part of the relentless point-scoring and partisanship.

In preparing my remarks for this afternoon, I thought that is what I was going to hear from opposition senators, so I am pleasantly surprised by Senator Moore's contribution today, because I do not think we are all that far away from an agreed position in terms of how to move the debate forward. I acknowledge and congratulate Senator Moore's first contribution on this debate this afternoon and hope other senators will contribute in the same vein.

Senator Moore is saying a number of things. Senator Moore is agreeing that there is a debate in the community. I argue there is a debate in the community about this important issue. Senator Moore is suggesting that the Australian Human Rights Commission and the Australian Law Reform Commission have strong views on this. So am I, and in the next few minutes available to me let me explain to you why the Human Rights Commission and the Australian Law Reform Commission agree that review and possibly reform of this law is necessary.

Senator Moore is quite right. I accept that over 20 years ago there would have been some compelling reasons in our community for this law to have been created. What I am arguing is that 20 or so years later it is time to review the suitability of that law, and I argue reform. Others might argue review and no reform, but to move this debate forward we need to step outside of the petty partisanship, step aside from the petty point-scoring and move to a position—

Senator McKim interjecting—

Senator Kim, hear me out.

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

I will.

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

and move to a position where we can have a community discussion about this important issue. That community discussion should be given to the parliament—should be given to this parliament—to do. I will come back to that point in a few moments. But let me just start by saying that when this debate started a number of years ago—and I have only been in the Senate for four years—there was little support for reform, but what has happened is that the arguments for reform have been increased, not just from Senators McKim, Smith and Moore but from esteemed people in our community. Let me start with one of them: a very eminent Western Australian who is now the Chief Justice of our High Court. Justice Robert French has 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.

What the now chief justice, then a justice, was saying is that reform of 18C is defensible. That is the first point. Julian Burnside AO QC, a prominent human rights lawyer not known for his articulation of political values similar to my own or similar to Senator Paterson's, has 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 too far so a bit of fine-tuning would probably be OK.

What I am trying to demonstrate is that there is a wide breadth of argument in the community from esteemed people who, at a minimum, think that this should be reviewed.

Let me turn now to the Australian Human Rights Commission, because Senator Moore did use the Australian Human Rights Commission's contribution some years ago in defence of her position. Let me share with you what the Australian Human Rights Commission have said in the last two years. They said that 'the legislation could be clarified so that it more plainly reflects the way in which it has been interpreted in practice'. And, most significantly, what did the Australian Law Reform Commission say? The Australian Law Reform Commission concluded, just last year:

… there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to 'offend'. In some respects, the provision is broader than is required under international law—

to prohibit the advocacy of racial hatred—

broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.

In comparing Australia's section 18C with other common-law countries, the Australian Law Reform Commission found:

The New Zealand and UK provisions seem narrower than the Australian provision … For example, the provisions do not cover offensiveness, and require that the person provoke hostility or hatred against a group of persons defined by race or ethnicity.

The commission also stated that, in 2013, the Canadian parliament repealed a broader provision in the Canadian Human Rights Act—one reason being that the provision conflicted with the freedom of thought, belief, opinion and expression safeguarded by the Canadian Charter of Rights and Freedoms.

I have a strong view on this issue but I accept absolutely that there are other people in the community who have a different view. The idea that we should not take the next step forward and have a proper debate—and I do not like to use the word 'debate'. The word 'debate' in an instant suggests conflict. It does not have to be conflict driven. It can be a parliamentary discussion about the merits or otherwise of reforming section 18C, because people outside of this Senate, esteemed people, have argued that that is the right course of action. The politics in this are tempting. It is easy to whip up hysteria. It is easy to whip up concern. But we have an obligation, as considered people with rights and responsibilities as senators, not to create fear where fear does not have to be created but to give people a degree of confidence that this is a debate, a deep debate, that we can participate in.

I am looking forward to Senator Dodson's contribution in his first speech, which we will hear shortly, as a fellow Western Australian and as someone who spends a lot of time across Western Australia's far North. But I think it is interesting to be reminded of the comments of Mr Warren Mundine reported in The Australian newspaper this week. Mr Mundine did start by opposing the Abbott government's plan to repeal section 18 in its entirety, and that is not what we are talking about. Those of us like Senator Patterson and I, who argue that reform should be possible, are talking about a very, very narrow reform. Mr Mundine has said that he believes that the law needs changing. He has said that he was supportive of removing the terms 'offend' and 'insult' from the section. I quote Mr Mundine now:

"The way things are going at the moment we are seeing people who have been stifled in regards to their conversations, that is the concern I have," he told The Australian. "I do believe it needs changes—not to wipe it completely, but to pull it back a bit."

Again, it just demonstrates the point that there are a variety of opinions in the community. It is beholden on us to conduct the debate carefully, to conduct the debate in adherence with our convictions and values and to accept that different people will have different points of view.

I have an idea about how we can progress that. On many occasions this parliament has demonstrated its capacity to deal with difficult and sensitive issues. A proposition that I have shared with colleagues is that I think it is time—I do think we have the capacity—for a parliamentary inquiry to examine the broader issue of freedom of expression, of which 18C is just one part, and to invite members of the House of Representatives to join in that parliamentary inquiry, because we know that they will have different views as well. We know that the sorts of pressures that are on House of Representative members are different to those that are on senators. It would be a parliamentary inquiry that includes members of the House of Representatives and that is given to an esteemed committee of the parliament—perhaps the Parliamentary Joint Committee on Human Rights, Senator McKim, of which you and I were members in the last parliament. We can step above the partisanship and the point-scoring. But is beholden on all of us to do it in a way that exercises care and caution. And it is beholden on Senator Patterson and me as opponents of reform to make sure that that consensus for reform is as broad as possible. A parliamentary inquiry puts the responsibility on Senator Patterson and me and others to broaden the consensus, to build confidence that this is a positive next step. If it is not a positive next step, we can review that—we can inquire into that. It is just not defensible anymore.

Indeed, in Senator Moore's own contribution she recognised that there is a debate in the community. The Australian Human Rights Commission had a view; I have shared with you why that view is now different. The Australian Law Reform Commission had a view and now that view is different. It is time to take this debate to another level. Rather controversially, let me put out a challenge to my own colleagues: reform is possible, so we must exercise the greatest diligence in making sure that every action, every word we speak, has as its objective building consensus and not distracting from consensus.

Senator McKim, I think a freedom of expression parliamentary inquiry of which 18C is a part is important. We know that one of the most cherished principles in our country is the freedom of opinion and expression. We know that it stands first amongst equals and its intrinsic worth is the fact that it sits in very close proximity to other liberties that we cherish—the freedom of association, the freedom of assembly, the freedom of thought, the freedom of conscience and the freedom of religion. These are live issues in our debate in our country. I challenge anyone who thinks that they are not. But now is the time to take it to a new level, to a new place, and to encourage and empower parliament to conduct what is a very necessary community inquiry.

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

I thank Senator Smith for his contribution. He is invariably worth listening to closely, I have found, in my relatively short time representing the state of Tasmania here in the Senate. However, Senator Smith, I found some inherent contradictions in some of the arguments you made. Firstly, you spent quite a bit of your contribution calling strongly for a review of, variously, 18C and freedom of speech statutes in this country. However, it is beholden on me to point out that you have actually signed on to change section 18C by removing the words 'offend' and 'insult'. So you do not have a position of wanting review—you have actually signed on to the change, Senator Smith. It is worth my pointing out that in my view, and with the greatest respect, inherent contradiction in your contribution.

The problem the proponents of change have more broadly is that there are a range of other far more grievous constraints on freedom of speech that never get a mention. Our defamation laws, which have extreme constraints, in effect, on freedom of speech in this country, never ever get a mention by those representatives of the Liberal Party and the IPA in this place, because of course they are used by politicians and big corporations in order to stifle freedom of speech. So they are very convenient, and it is conveniently ignored that our defamation laws are a massive constraint on freedom of speech in this country. I refer you also to section 42 of the Border Force Act, which is a massive constraint on freedom of speech for those people who work in the immigration detention centres in our country. If people are truly going to self-style as freedom of speech warriors in this place, or in public debate—I am not suggesting that you are, Senator Smith, but I am suggesting that others in this place have done that—then I want to hear from them objections to section 42 of the Border Force Act. I want to hear from them objections to the significant constraints on the freedom of speech created by our defamation laws. But, do you know what? I am not going to hold my breath, because I do not think those comments are coming because what is driving this debate around 18C is that people want Australians to be able to offend and insult other Australians based on race—based on race; that is the key. Section 18C is in the Racial Discrimination Act. If you want to remove the words 'offend' and 'insult' from the Racial Discrimination Act, logic follows that you want Australians to be able to offend and insult based on race. What reasonable person would want to offend another Australian based on their race? I do not think there is a reasonable justification for offending and insulting fellow Australians based on their race.

I spoke about section 18D of the Racial Discrimination Act earlier today, but it is worth pointing out that, like defamation laws, like section 42 of the Border Force Act, section 18D never gets a mention in this argument by proponents of change. It is forgotten by proponents of change as often as most Australians, including me, forget the second verse of Advance Australia Fair. Section 18D seriously provides massive freedom of speech protections that effectively protect anything said or done in good faith in this country. It is a significant and broad protection.

I also want to point out in the very limited time left to me in this debate that there are many more ominous rights to the threats of ordinary Australians in section 18C. I am going to call people out here, and they are the right wing culture warriors in Australia —I am not referring to Senator Smith, but there are others in this place, including Senator Patterson and Senator Duniam, who is the new Senate for Tasmania—who will take every opportunity to crib their way through our statute books to make Australia a less safe place for people they do not agree with. I have seen this through my life. I say to Senator Paterson and his IPA—he is an agent of the IPA in his place, make no mistake about it—and to Senator Duniam and others that I will not lie down before them and let them crib their way any further than they are able to do. I will defend section 18C to my last breath in this place.

I want to point out to the chamber that threats like the growth in inequality in this place—the gap between the haves and the have-nots in Australia—is a significant challenge to the rights of Australians. Global warming and sea-level rise are significant challenges to the rights of Australians. The ever-expanding surveillance that is done in the national security—which all of those proponents of changes to section 18 C line up to support—is a significant challenge to the rights of everyday Australians. But we do not hear a peep from these people about those things. We simply hear that we need to change 18C so that people can be offensive and insulting on the basis of race in this country. Well, not on my watch!