Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise today to speak to the Human Rights Legislation Amendment Bill 2017 that has been tabled in this parliament and that we have spent the last few days debating. It strikes me that this piece of legislation is an awful waste of time for this chamber, seeing as we know that the government does not have support to get this legislation through and we know that it is purely an exercise to appease the right-wing rump on the Prime Minister's back benches. We know that this bill is causing a lot of concern, anxiety and worry to people right across this country.

The Racial Discrimination Act is a law that is meant to protect people. It is meant to ensure that members of our community feel safe, by protecting them from racial vilification, from being humiliated because of who they are, where they were born, their family background and who they are as a human being. It is meant to protect people from feeling lesser than others. It strikes me, listening to the debate in this place over the last few days, that this bill has been put forward not to make people feel protected or safe in our communities but to somehow protect the people who want to spew hatred. The debate has been absolutely backwards. It has all been about the right for people to behave in ways that are pretty nasty and to belittle others. Somehow giving rights to the racists is more important than protecting a piece of legislation that is designed to ensure that every person in our community can feel safe—safe in who they are and safe to catch a bus without thinking that, just because they happen to have a Greek, Italian, Chinese, Malaysian, Fijian or Muslim family background, they may be vilified in public.

I think it is a really sad day for this parliament that we are going to be sitting late into the night because there are some people in this place—some people on this Prime Minister's government benches—who desperately want to take away people's right to feel safe and secure in their own communities. It is, sadly, an indictment of this parliament that we are allowing hours and hours of debating time to give rights to a bunch of racists, to people so they can be meaner and nastier—to say, 'That is okay. That is the type of society that people want to live in.' Well, it is not.

Australia has such a rich history of embracing multiculturalism, and we have done it very, very well. When you travel to other parts of the world, one of things that really stick out when you tell people that you are from Australia is what a successful multicultural country we are seen as. Rather than debating a piece of legislation that appeases the trolls, we should be finding ways to strengthen and embrace the richness of our multicultural diversity. Why on earth are we spending hours debating what rights racists and bigots should have, instead of what we can be doing to support, and show empathy and compassion for, those who are already feeling pretty under fire in our communities right now?

Let us be totally honest about what has dominated this debate to date. It is about a bunch of people who want to vilify, in particular, Muslims—and we know that because we heard Senator Roberts, only two days ago, say some of the most disgusting and awful things about people just because they happen to be of Muslim faith. He is a man who has particular privilege. He is in the Senate; he gets to stand up here and say the awful things he wants to say, and no-one can do anything about it. That is what privilege looks like. But with privilege comes responsibility. We have a responsibility as leaders in this chamber and in this parliament to stand up for people who do not have a voice—to ensure that somebody who is being vilified or feels under fire in our community does not become alienated just because of who they are, where they were born or who their parents are, or whether they wear a headscarf or not. The anti-Muslim crusade that has been spewed by One Nation, from that corner of the chamber, over the last week has been revolting. The truth is that they can say anything they want because they have parliamentary privilege.

We are seeing hours and entire days of this chamber dominated by a bill that is entitled 'Human Rights Legislation Amendment' when it really should be 'trolls amendment bill'. This is about appeasing a bunch of privileged, nasty racists and giving them more protections, and weakening the protections of people who genuinely, and worryingly, need more protection.

I have met a lot of young Muslim women in my time as a senator in this place—16- and 17-year-old Hazara girls from Adelaide, or university students who have come to Australia with their families because their dads and their mums believe their daughters have the right to a good education and want their daughters to get a good education. They want their daughters to be able to succeed at university. They move their families to Australia so that their girls can be the best they can be and do what it is they want to do. What I talk to these young women in my home state and in other places around the country, their stories of how they feel, living in our communities, are horrifying. They cannot catch a bus without being concerned that someone is going to abuse them because they are wearing a headscarf, or walk down the street without somebody in a car yelling at them. They get home to find abuse on their Facebook page.

The people who behave like that do not need any more protection. They do not need any more rights. We should be finding ways to embrace diversity and look after those people who are already under fire, who are already feeling vilified and isolated. The trolls have been well represented in this place over the last couple of days, and it has not been a very pleasant thing to have to deal with in this chamber.

Senator Hanson yesterday challenged people to explain why she is referred to as a racist. She is upset that people call her a racist. You know what? If you say racist things, people are going to call you out for it. If you do not want to be accused of being a racist, don't say racist things. If you do not want people calling you out for it, keep your mouth shut. If you do not have anything nice to say, don't say anything. This is not about the thought police; this is about basic humanity and decency.

Senator Hanson said she did not believe that she was a racist. Well, when she said, 'I believe we are in danger of being swamped by Asians,' and, 'They have their own culture and religion, form ghettos and do not assimilate,' in her maiden speech in 1996, that sounded pretty racist to me. Of course, only last year she said:

… we are in danger of being swamped by Muslims, who bear a culture and ideology that is incompatible with our own.

The theme continued. Only this month she said:

… we have a disease, we vaccinate ourselves against it …

… Islam is a disease; we need to vaccinate ourselves against that.

This is pure hate coming from the mouth of one of our own senators sitting here in this place, someone who should be speaking up for decency and humanity, and all we get is the opposite.

In 2006, Senator Hanson said:

We're bringing in people from South Africa at the moment. There's a huge amount coming into Australia, who have diseases; they've got AIDS …

… They are of no benefit to this country whatsoever; they'll never be able to work.

… And what my main concern is, is the diseases that they're bringing in and yet no one is saying or doing anything about it.

Pauline Hanson is a racist. All you need to do is listen to her own words. But it is not people like her who need more protection; it is the people that she wants to spew hate on.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Hanson-Young, just resume your seat, please. On a point of order, Senator Fawcett.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Two points of order, Mr Acting Deputy President: (1) to require the senator to address other senators by their correct titles and (2) imputation.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Hanson-Young, I remind you that we refer to senators by their official title. In terms of imputation, I do not see a point of order, Senator Fawcett.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I was, of course, referring to Senator Hanson. This bill has been debated in this place in such a way that it is the rights of people to be racist and nasty versus the rights of others in the community to be safe. There is a lot of talk about the rights of racists and, apparently, the need for them to have more protection; not much talk about how we work to unify our country. Laws are made to protect people, not to protect the perpetrators. Australia is better than this—much, much better than this. That is why I am thankful that, despite the waste of time on this nasty, pathetic, small-minded piece of legislation today, it will be rejected because, deep in their hearts, most members in this chamber understand that Australians do not accept this.

Australians would prefer that we were debating things that really matter, such as the unemployment rate. We have record high youth unemployment at the moment. Where is the debate on that? We have growing inequality in this country. Where is our genuine discussion about that? I do not think there is any Australian—I do not know anyone—who works all day, picks up their kids after school, gets home, cooks the dinner, sits down and says: 'Oh, you should've seen what happened to me today. I just couldn't be a racist. What is this country coming to?' No-one in their right mind who believes in this country being the best it can be thinks that we need to weaken our laws. No-one believes that except the people who want to continue to get away with spreading hatred and stirring hatred for their own political gain.

One of the worst things about this piece of legislation is just how bitterly disappointing the Prime Minister has been in all of this. The Prime Minister has put this piece of legislation up purely for internal politics. He was prepared to give a space where we had Senator Roberts stand up and vilify whole swags of the Australian Muslim community. He gave Senator Roberts—as a middle-aged white guy—a platform to stand here and say all of these awful things under the privilege of the parliament. The Prime Minister allowed that to happen, all because he is worried about his own internal political fight in his own party. He is bitterly disappointing on this.

This bill never should have been brought to this parliament. The fact that this is a piece of government legislation that we are debating in government time says so much about the character of the Prime Minister, Malcolm Turnbull: weak, under siege and spineless. The leader of our nation is meant to be somebody who unites people, who talks about what makes us a great country, but instead he has provided an entire week of debate where we have seen members of our Australian community denigrated and vilified in our chambers of parliament. And our Prime Minister has sat by and said, 'Oh, this is what I want my last week of this sitting period to be dominated by.' He is weak, he is spineless and this is not a human rights amendment bill; this is Malcolm Turnbull's appeasement to the trolls bill. That is what is in this chamber today. That is what has to be voted down tonight.

I do not want to hear over and over again when we get to committee stage that we have to have more rights for people like Senator Hanson and Senator Roberts to stand in this place under privilege, kick members of other cultural groups and communities just because they do not like them and then have the gall to say that somebody might dare call their senators and their party a bunch of racists. If you don't want to be accused of being a racist, don't do it.

Jane Hume (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise this afternoon to speak on the government's Human Rights Legislation Amendment Bill 2017. As we all know, this bill contains three elements. It contains reforms to section 18C of the Racial Discrimination Act 1975, it amends the complaints-handling processes of the Human Rights Commission under the Australian Human Rights Commission Act 1986 and it also makes minor amendments to the Australian Human Rights Commission Act specifically sought by the commission to enhance its operation and its efficiency.

Let's first deal with the issue of amendments to the complaints-handling process. These amendments give effect to the majority of recommendations of the Parliamentary Joint Committee on Human Rights in its report on freedom of speech in Australia tabled in parliament less than a month ago. The bill also amends the Australian Human Rights Commission Act in line with the recommendations made by the commission itself, and these will have the effect of reducing its regulatory and administrative burden, reforming reporting requirements and clarifying the commission's conciliation process and governance arrangements. The commission wanted and in fact requested these specific changes.

These amendments will restore public confidence in the commission's processes and thereby restore confidence in the commission itself. They will bring certainty to both complainants and respondents to complaints of unlawful discrimination and they will ensure that all parties to a complaint are accorded procedural fairness.

But procedural amendments are clearly not enough. The language of section 18C of the Racial Discrimination Act has lost all credibility. The government now seeks to replace that language to better reflect the intent of the legislation, to make the Racial Discrimination Act clearer, to make the Racial Discrimination Act stronger and to make the Racial Discrimination Act fairer. The bill will amend the Racial Discrimination Act to redefine conduct prohibited by 18C to more accurately reflect and encompass the notion of racial vilification. It does this by removing the words 'offend', 'insult' and 'humiliate' and replaces them with the word 'harass', making it a prohibited act to harass or intimidate anyone on the basis of race. The bill also introduces an objective standard in which a reasonable member of the Australian community would judge that an act of harassment or intimidation validly occurs rather than the standard of a hypothetical representative of a particular group.

The Racial Discrimination Act 1975 is a law that was developed with good intentions. It was developed to defend the vulnerable, to articulate the principles of a successful multicultural society and to reflect our values of inclusion and acceptance. They are values that we hold dear. Australia is arguably the most successful multicultural nation on this earth. We value not just tolerance but acceptance, not just inclusion but immersion. Our migrant heritage has allowed our great nation to flourish economically and culturally. In 2017 you would be hard-pressed to find an Australian without friends, colleagues or extended family members who hailed from other countries and other cultures. And by far the vast majority of Australians treat those who hail from near and far with respect, with dignity and often with great admiration. The vast majority of Australians decry racism and denounce those who vilify others on the basis of race or behave menacingly towards those we embrace. This was the intention of the Racial Discrimination Act.

But what has become apparent is that the Racial Discrimination Act is a law that gave practical effect to making it unlawful to hurt people's feelings. The only sensible course of action is to redirect 18C towards more serious conduct. The law should provide protection from racial vilification and it should do so in a manner that is consistent with Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. However, this protection needs to be consistent with the right of freedom of speech, which is the cornerstone of a strong and healthy liberal democracy. Effective protection against racial vilification need not curtail freedom of speech. However, section 18C in its current form potentially does so and at the same time does not provide any extra protection from racial vilification. The amendments that have been proposed have a dual purpose: they provide stronger and clearer laws about what constitutes racial vilification of freedom of speech.

Strengthening the Racial Discrimination Act by removing the subjective terms 'offend', 'insult' and 'intimidate' and replacing them with the word 'harass' has a dual effect. Removing the words addresses the disconnect between the ordinarily understood meaning of these terms and the way they have been judicially interpreted, and the concept of 'harass' in section 18C will be clarified in the bill to also include a single act. It can include, for instance, a person who is verbally attacked on a bus, as Senator Hanson-Young expressed, purely on the basis of their race. That single act will constitute an act of harassment.

Australia's legal community has made it very clear that the act in its current form renders the law vulnerable to a High Court challenge, a concern that the Australian Law Reform Commission clearly stated in its 2015 report. I will quote directly from that report:

The inclusion of the words 'offend' and 'insult' raises a possibility that the High Court, in an appropriate case, might read down the scope of section 18C, or find it invalid.

But it is not just the Australian Law Reform Commission that has called for urgent reform to the Racial Discrimination Act. Countless others of varying political persuasions have been united in their concern over the ramifications of a law that limits free speech. Tony Morris QC was the barrister for two of the QUT students in the Prior versus Queensland University of Technology case. Tony Morris said:

For far too long, 18C’s wording has misled complainants, feeling en­titled to object to the slightest insult or offence (the QUT case is an example par excellence), and respondents, imagining they are liable even for trivial discourtesies.

Section 18C has been the only law in Australia and perhaps the only law in the world by which liability is determined exclusively from the standpoint of would-be victims. Indeed, Warren Mundine, the former president of the ALP, told The Australian that the low bar of the existing law meant that we were not capturing the real racists, but catching normal everyday people like the Queensland university students and cartoonist Bill Leak.

Mr Shorten said that the proposed changes would open the gates to racists and take advantage of their new green light to insult, offend and humiliate. But Mr Mundine, a man I know you deeply respect, Mr Acting Deputy President Sterle, said:

I don't agree because I am a person who believes in free speech.

He said he was very supportive of the changes to 18C because it had become a big stick and there were lots of people who had been beaten with that stick. It stifles debate on confronting real issues.

Professor George Williams, a former ALP preselection candidate and the current dean of law at the University of New South Wales, also said:

Despite its limited operation, there is a good case for amending section 18C … the law should proscribe extreme forms of speech such as racial vilification and incitement to violence. Section 18C goes too far in applying to more minor forms of speech, in particular words that offend or insult.

I know that David Marr has been quoted in this chamber numerous times in this debate, and that is because he truly is a lion of the Left. As a journalist for The Guardian, on March 15 this year, he wrote:

I want 'offend' and 'insult' taken out of section 18C of the Racial Discrimination Act. I don't think the law should engage at that level. But I can't see that this country would be a better, freer place if 'humiliate' and 'intimidate' went too.

Dr Sev Ozdowski, the former Human Rights Commissioner, also said:

There should be no right to not be offended.

That is a quote from The Australian. He also said:

There is no doubt in my mind that racism needs to be curtailed, but I am yet to see solid empirical evidence that the insertion of section 18C into the act in 1995 diminished racism.

He also said to the Parliamentary Joint Committee on Human Rights:

… I have seen the chilling effects of that legislation on the discussion of any cultural characteristics. Questions about cultural practices are risky to ask. It also builds resentment and distrust. It creates a 'them and us' attitude. In my view, it may put multiculturalism at risk. It also creates enormous repercussions that damage the respondent to a complaint, regardless of whether the allegation is proved or not. Being accused of racism is a similar thing to being accused of sexual violence. It is having a very negative impact on people who are accused of racism.

And I note that Senator Hanson-Young did that very thing in this chamber this afternoon, which was very disappointing. Sue Gordon, who is a Western Australian magistrate and also an Indigenous community leader said:

Gagging people from fairly and legitimately held opinions is censorship. It is a basic denial of freedom of speech …

The underlying problem with the ill-considered effects of Section 18C is that if someone says they have been offended or humiliated, who is to challenge them? That is not what freedom of speech and the right to fairly voice your opinions is about

Clearly, section 18C is stymieing legitimate debate that is potentially useful and healthy. It is stopping that, not necessarily because the conduct would contravene section 18C, but because of the fear of legal action and the untold reputational, financial and often personal damage that might ensue from that. Importantly, what is the point of a law that does not do the exact thing it was meant to do? What is the point of a law that does not capture those who genuinely vilify, harass or intimidate? Our current law as it stands with 18C is not capturing those who abuse and menace a stranger on a bus, as Senator Hanson-Young pointed out.

Those people on a bus are certainly not protected by 18C now. A woman on a bus who gets abused purely for wearing a niqab or for being of a particular race or a particular colour is not protected at all by 18C. The current law is not capturing those who participated in the Cronulla riots or the anti-immigration protests in Melbourne or Sydney, wearing bandannas and anonymously menacing those of other races. Instead, it is capturing students, who were doing nothing more than decrying the unfairness of an Indigenous-only computer lab on social media. That is a very minor slight indeed. Instead, it captures cartoonists like Bill Leak, whose very role is to satirise.

The quote I find most compelling and most chilling in this debate is from the son of the late Bill Leak. In The Australian on 22 March, Bill Leak's son said:

If the supporters of section 18C of the Racial Discrimination Act, such as Bill Shorten and Tanya Plibersek, want to know what real vilification looks like, they need only look at what happened to my Dad and our family. It was genuinely offensive and placed him under enormous stress.

Justice Ronald Sackville said during the joint parliamentary inquiry:

…   …   …

That is exactly what this bill prescribes—the standards of a reasonable member of the community at large.

Rabbi Chaim Ingram is quoted as saying that the Rabbinical Council of New South Wales:

… would have very much welcomed a free and frank discussion on why we feel that certain sections [of the existing legislation] are preventative of free speech in as much as rabbis can’t get up and make a pronouncement on certain moral issues, that might insult [someone].

If rabbis are prevented from speaking on certain moral issues because of the Act, then it would be good to change that Act.

That was in The Australian Jewish Newson 10 April 2014.

We are a proud nation of migrants. We are a mature nation. We are mature enough to hold free-thinking, free-speaking debates. We know what is right and we know what is wrong. The vast majority of Australians stand up for those who are vulnerable. We self-regulate our own behaviour and we lead by example. We value our heritage, our diversity, our prosperity and our progress, but we are also a nation that values our freedoms, and freedom of speech is fundamental, elemental, to all other freedoms. We are a nation that shuns political correctness and rejects the scourge that encroaching identity politics has inflicted on our national conversation.

The changes proposed by the coalition to the Racial Discrimination Act are not something we should fear; they are something we should embrace. A liberal democracy demands no less and a parliament that truly represents its people must do no less. We need a clearer law, a stronger law, a credible law and a fairer law. Most importantly, we need a balanced law that will defend free speech and protect Australians from genuine racial discrimination.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I rise to speak on the Human Rights Legislation Amendment Bill 2017. Weakening section 18C was debated for a long time before reform was introduced into this parliament, but I still do not believe that the case has been made for reform. Section 18C functions well as it is. It strikes the right balance between freedom of speech and a legal incentive to protect victims of verbal or written abuse. Section 18C cannot be read in isolation; it needs to be read alongside section 18D, which has the exemptions to section 18C and protects freedom of speech. Section 18D says:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

So it is clear that, if you have good and appropriate intentions, your right to freedom of speech is protected under section 18D.

But why should this area be regulated by law? The debate has clearly shown that one person's opinion is another person's hate speech. This debate has shown that in a world that is made up of a variety of people with different experiences, backgrounds, make up and different levels of resilience, we need a benchmark to let Australians know what is and is not appropriate. Section 18C does not restrict freedom of speech; it is about providing a benchmark for human decency.

While I believe it is important for parliament to undertake moments of self-reflection, to examine the culture it is creating, this debate is less self-reflection and more a political football for all parties involved. I am sympathetic to the pressures Prime Minister Turnbull has to deal with within his party, but the Liberal Party's issues of disunity should not be played out on the Senate floor at the expense of legislation that impacts the day-to-day lives of everyday Australians, small to medium businesses, veterans, pensioners, families and students.

The legislation that impacts on these groups, the majority of Australians, is what must be given priority in the Senate chamber. If the changes to the pension asset test were given the same amount of airtime as section 18C, the same amount of consideration within the Liberal Party and the same amount of opposition by Labor, perhaps hundreds of thousands of pensioners would not have had their fortnightly payments cut this year. If the freeze to the family tax benefit last week had been given the same amount of airtime, the same amount of consideration within the Liberal Party and the same amount of opposition by Labor as section 18C, perhaps hundreds of thousands of families would not lose almost $2 billion from their payments.

We have a budget coming up—our economy is in dire straits, according to the Liberal-National party—and instead of governing you are kicking around issues that are of no value for families and pensioners, who no longer know how they are going to put food on the table. The Liberal government is not running the country. The Liberal government, once again, through its own self-interest, is just wasting time.

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

The bill that we are discussing here this afternoon is a triumph for our parliamentary system of government, a triumph for the Senate, a triumph for the Senate committee process and, indeed, a triumph for the joint committee process of our parliament. Free speech is an issue I have taken a lot of time exploring. Indeed, much of my parliamentary time over the last two years has been spent on this issue—as well as other issues. This is my eighth speech on the importance of free speech in this country and reform to our free speech laws.

People would not be surprised to learn that people in this Senate chamber have different views about the suitability of the government's amendments to free speech laws in our country. That is actually not important, that is actually not a surprise. What is important, and what we can put our faith in, is the fact that there was a contentious issue and the government, in its wisdom—and I will come to the reasons for this in a moment—did decide to trust the parliament, through the Joint Parliamentary Committee on Human Rights, to explore this issue and canvass the breadth of issues and people's attitude to them.

I note that Senator McKim is in the chamber, as he often has been when we have been debating these points. What happened was that we had a very civilised process—and Senator McKim is nodding his head—where the community got to put their views. I would argue that, during the course of the parliamentary joint committee inquiry, the tempo of the debate subsided a bit, became a bit more civilised, became a bit more rational because people had a forum through which to impart their views. And then the committee—comprising government members, opposition members, the Australian Greens and independent members of the Senate and the House of Representatives—came to a report. Again, people should not be surprised that there were differences of opinion in that report. There should be differences of opinion, because our system of government is a parliamentary democracy, not a totalitarian regime. And what is interesting is that, in that body of evidence that was presented to the committee, there were many things that were actually agreed to by the committee. That is my first point. What the committee report found for itself, based on a substantial body of evidence, was that there was cause for reform of the Australian Human Rights Commission complaints processes. Tick. That was a very good and important outcome—reforms that are broadly endorsed.

Less surprising was that there was a difference of opinion about how the issue of free speech, through the lens of provisions 18C and 18D of the Racial Discrimination act, should be reformed. The government came to a view that reform is necessary. And that is where we are today. We are in the Australian Senate debating the suitability of these reforms because the parliament applied itself to the task, invited community opinions, a body of evidence emerged and, on the basis of that, the government is bringing some proposed reforms to the Senate and we are debating them here and we will get an outcome in the next day or two. That is a triumph for our parliamentary democracy.

Those of us who, like me, have been champions of reform do feel satisfied that, no matter what the outcome is today or tomorrow, a proper process has endured, a substantial body of evidence has emerged and the parliament, being a representation of the people in our community, in the Senate, will make a decision.

I would like to share with the Senate and put into the Hansard some paragraphs of a letter that I wrote to the Attorney-General in October last year, when I advocated for a parliamentary inquiry, when I specifically sought the government's endorsement of the Parliamentary Joint Committee on Human Rights to conduct that inquiry. By way of background, in the previous parliament I had the honour of being the chairman of the Parliamentary Joint Committee on Human Rights. I have some of the scars and some of the bruises to prove my tenure as chairman of that committee. I would not have established a Parliamentary Joint Committee on Parliament Rights had I been in the parliament at the time of its creation. I do not think it is necessary, because I think there are other forums in which to debate and discuss issues around civil liberties in our country—namely, the Senate Scrutiny of Bills Committee. But that is a debate for another time.

In arguing my case to the government that the issue was worthy enough for a parliamentary inquiry and that the Parliamentary Joint Committee on Human Rights was the right forum, I had this to say to the Attorney-General: 'Over recent months, there has been a broadening of community calls for the greater protection of free speech in Australia. This debate has been given added impetus by the prosecution of university students in Queensland on the basis of alleged racial discrimination for comments made on social media, as well as a decision by the Australian Human Rights Commission to launch an investigation of cartoonist Bill Leak and The Australian newspaper on the grounds that the cartoon was allegedly racist. Now, more than ever'—and I was writing at the very end of October last year—'it is appropriate to fully test community attitudes to whether our current laws are adequately protecting freedom of expression in Australia. I am writing to urge the government to give serious consideration to a parliamentary inquiry into the rights and responsibilities that arise from the exercise of freedom of expression in Australia and what improvements could be made to our current laws to optimise freedom of expression in our country.'

That is an important paragraph because what has been missing in this debate is this point: it is not enough just to change the law. That is the easy part, but, if the law should change, it is then beholden on all of us, most particularly those like me, who have been reformists, not just to champion free speech but to jump to the defence of people and condemn those things that could be said or might be said by ill-informed, unwise people trying to do harm. This is not just about giving people a capacity to act more freely with their speech; this is putting a responsibility on each and every one of us to stand up and condemn stupid things and hurtful things when they get said, not just in defence of that free speech. What makes the country stronger and more harmonious is not that people hide behind a law but that people step forward themselves as fair and decent-minded Australians and condemn stupid comments. That is what makes the country stronger, not black-and-white laws in legislation.

Whether or not this piece of legislation is successful today or tomorrow is yet to be seen, but my underlying premise is this. It is not that I think Australians are racist—not at all. I come from the position that I believe that Australians are fair minded, are decent, understand the great merit that multiculturalism has brought to our country and welcome new Australians to our country to start a new life, particularly those who are fleeing from political and religious persecution. The good things and the virtues about our country are the things that make me a free-speech advocate and wholeheartedly support these reforms.

For the record, let me read what the bill will do and what the government is seeking to do:

The Bill will amend Part IIA of the RDA—

the Racial Discrimination Act—

to redefine conduct prohibited by section 18C, to ensure that the defined conduct more accurately encompasses the notion of racial vilification. The words 'offend, insult, humiliate' will be removed from paragraph 18C(1)(a) and replaced by the word harass'. The word 'intimidate' will remain. The Bill will also introduce the 'the reasonable member of the Australian community' as the objective standard by which contravention of section 18C should be judged, rather than by the standard of a hypothetical representative member of a particular group.

The government believes:

The law should provide protection from racial vilification. It should do so in a manner which is consistent with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD). However, this protection needs to be consistent with the right to freedom of speech, which is fundamental to the strength and health of our liberal democracy. Effective protection against racial vilification need not curtail freedom of speech. However section 18C in its current form potentially does so, without providing any extra protection from racial vilification. As well, section 18C fails to protect against racial harassment—an essential element of protection against racial vilification.

I do not expect people to trust Senator Smith from Western Australia, necessarily, nor do I expect them to trust—

Senator Polley interjecting—

Simon Birmingham (SA, Liberal Party, Minister for Education and Training) Share this | Link to this | Hansard source

I do!

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

Thank you, Senator Birmingham from South Australia. Thank you, Senator Polley from Tasmania. The people we can trust on this issue are very, very significant people who care about their country as much as senators in this Senate chamber—and I will come to that in a moment. As a triumph of parliamentary democracy, this is a good outcome. If the law changes, it falls on each and every one of us to stand up and condemn ignorant comments. These things are very important.

If we do not want to trust senators in this place, who can we trust? When I was researching this issue back in 2013 and early 2014, I was pleasantly surprised to hear that it was Justice French, the immediately past High Court chief justice of our country, who supported reform. I was surprised to see that it was well-known leftist legal mind Julian Burnside QC who supported reform. As the debate developed in our community, others came to the argument as well, supporting the case for reform. I think what changed in the minds of ordinary Australians were two things. As much as the debate in this chamber and other places was important, two things changed the attitudes of ordinary Australians, took the issue out of the academic and theoretical sphere and brought it into their lived experience. That was the experience of the QUT students in Queensland and the experience of Bill Leak, the cartoonist for The Australian. I hear from lots of people that this is not an important issue—that this is not an issue that people are talking about at their barbecues and their local pubs. I disagree. I do not believe that people are standing at pubs and barbecues talking about 18C. I do think that people are standing at barbecues and pubs talking about protecting their values, protecting their way of life and wanting to stop this political correctness that constantly seeps into everything we do in our country. That is what people talk about at barbecues. That is what people talk about at pubs, and 18C is the technical expression of that issue. So this is important; this is a live issue for Australians.

Let me just share with you what Justice French had to say about this important issue. He said—and it was noted in what was called the Bropho case of the former Human Rights and Equal Opportunity Commission:

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—

Covenant on the Elimination of Racial Discrimination—

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

That is Justice French, not then the Chief Justice of the High Court—he later became the Chief Justice of the High Court—arguing that the law needed to be reformed.

Julian Burnside QC, a prominent human rights lawyer, publicly stated:

The mere fact that you insult or offend someone probably should not of itself, give rise to legal liability.

My personal view is that 18C probably reached a bit far so a bit of fine-tuning would probably be okay.

Indeed the Australian Human Rights Commission itself said in 2014 in its submission to the Attorney-General's Department on the original exposure draft of the freedom of speech repeal of section 18C bill of 2014 that it considered that:

… the legislation could be clarified so that it more plainly reflects the way in which it has been interpreted in practice.

In addition to that, Sarah Joseph, Director of the Castan Centre for Human Rights at Monash University goes on to say:

… the prohibitions on that which offends and insults, even on the basis of race, go too far. Feelings of offence and insult are not serious enough to justify restrictions on the human right to freedom of speech ... It is true that the terms, 'offence' and 'insult' have been interpreted so that they mean more than 'mere' offence and insult. It is arguable that judicial interpretation has saved these provisions from actually breaching the right to free speech. However, the law should mean what it says. If 'offence' and 'insult' do not mean what they say, the prohibitions should go.

Everywhere you turn in this debate, I would argue that the case for reform has got stronger and stronger and stronger. It has got stronger amongst indeed those at the highest levels of our legal profession. I would argue that across the community the case for reform has got stronger and stronger. Indeed the case of the QUT students and the cartoonist Bill Leak has added to that strength. I would also note that it is not true to say that opponents of reform are to be found in Australia's ethnic communities—that is not true. What is offensive is this idea that Australia's ethnic communities are homogenous in their view to free speech. I would argue that some of those people who have come to Australia as new Australians understand better than we do the importance of free speech and have probably shown much more courage than we ever will in standing up for free speech, in fighting tyranny in their own countries and now they come to a country with such great democratic values as ours, with such a strong parliamentary democracy.

To suggest that people from ethnic communities do not understand the merit of free speech, I think, is offensive. You have only have to look at the record to find out what they say and you will discover that leaders of ethnic communities, members of ethnic communities, are divided, and why shouldn't they be? We are divided. Communities have different points of view—that is okay–but to argue that ethnic communities are united in their opposition is just not true.

Warren Mundine, prominent Indigenous man in our country, supports reform. Members of the Jewish community in our country support reform. Members of many other ethnic communities support reform. It might be harder to find their opinion, but it does not mean that they do not have an opinion and it does not mean that they have not had the opportunity to put their view on the public record. Again, that is why the parliamentary inquiry process has been so important, because it has given everyone an opportunity to put their view on the public record, and a body of evidence has emerged.

Like I said, I have spoken many times on this bill. I congratulate senators and members of the Parliamentary Joint Committee on Human Rights for the way that they conducted themselves during the inquiry. Whatever happens tonight, whatever happens tomorrow, there is a substantial body of evidence that says that reform is necessary, that reform can be done. I would argue that this has been the right process. I am proud to have been involved thus far, and of course whatever reforms we agree to tonight will be tested—will be tested in the Human Rights Commission, will be tested more broadly in the community—but we can have faith that Australians can live up to the very, very high expectations that we have enjoyed around the issue of free speech in our parliamentary democracy.

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

I rise to proudly oppose the Human Rights Legislation Amendment Bill 2017, which makes significant changes to the Racial Discrimination Act 1975 and to the Australian Human Rights Commission Act of 1986. I do so on the basis of recent polls, which have informed us that 80 per cent of Australians do not want any change; in fact they want the words to stay as they are. So you would have to ask: why are we pursuing a change that so many Australians are opposed to?

It is that age-old problem that the Turnbull government has had—that is, that they have got an extreme right-wing backbench who rule the day and they are, again, ruling the day. Because the numbers are so tight in the House, they say, 'Jump,' and our current Prime Minister, unfortunately, asks: 'How high?'

There is no doubt that the government originally intended to try to rush this bill through the parliament. There has been inadequate time for reporting the bill. It was introduced to the Senate on Wednesday, 27 March and referred to the Senate Legal and Constitutional Affairs Legislation Committee the next day for inquiry. But the government, through its numbers, shamefully worked to shut down a proper inquiry and instead demanded that the committee report on Tuesday, 28 March. Labor wanted a proper inquiry, not the sham agreed to by the government and some crossbenchers in this place, and we moved a more sensible and reasonable reporting time of 9 May, which would have allowed for proper consultation, but that was knocked off by the government, with the support of some of the crossbench.

No Aboriginal and Torres Strait Islander Australians or representative bodies were invited to appear before the committee, and that is quite shameful. This is despite the availability of the Aboriginal Legal Service (ACT/NSW), who sought to be heard during the hearing. Government members of the committee denied the Aboriginal Legal Service an opportunity to speak. Why? What was the government afraid of? This is yet another disgraceful example of the arrogance and the out-of-touch nature of this Turnbull government.

What is it that the government believe individuals do not have the freedom to express under the current act? They have never, ever been able to answer that question. The government has failed to provide any compelling arguments for either of the two proposed changes to section 18C as outlined in schedule 1 of the bill. Why is it that the Turnbull government wants to legitimise offence, insult and humiliation, all in the name of supposed 'free speech'? The only response we have heard from the Turnbull government is that they believe Australians who look different will not be attacked. The Prime Minister, his ministers and, indeed, the backbenchers—including in the last speech we heard here—try to pretend that all Australians are somehow are bigger than this. What arrogance! What absolute arrogance! It demonstrates just how out of touch and out of step the Prime Minister and indeed all members of the government are if they genuinely think that we do not have racism in this country and that racism is not on the rise.

I saw firsthand the race hate emails that former Senator Nova Peris received. I considered myself to be broad minded. I thought I was beyond being shocked by what people said or did but, when Nova showed me the emails and social media posts that vilified her simply because of the colour of her skin, I was deeply, deeply shocked and very ashamed. The comments were appalling, they were disgraceful and they were uttered by fellow Australians. Sadly there were not just a few of them; there were many. Somehow the writers of this hate speech thought they were entitled to vilify Nova Peris simply because of the colour of her skin.

Let me put on the record in this parliament once again that I stand for free speech, but I do not stand for the right to offend, insult or humiliate. As a white Anglo-Saxon woman, I have never experienced racism, but nonetheless these proposed changes are personal for me. I have two grandchildren. As with most grandparents, they are the apple of my eye. Aidan is 18 years old. Physically he has brown skin and Asian features. Some time ago, I asked Aidan if he had ever been taunted because of his physical features, I was shocked when he answered, 'Yes, and not just once but many, many times.' That is what Aidan told me—'Many, many times,' he said. Then he named the taunts he had received, disgusting terms which I will not dignify by repeating them here in this chamber. They were words which were clearly offensive, insulting and humiliating. I will never understand why we as human beings are fearful of those who look different to the mainstream, who look different to me, and why we think it is okay to use such insulting terms. Aidan was born in Australia but has even been told to 'go back to where you come from'. His father, my son, also born in Australia but with a Polish last name. has been complimented on his 'good command of English', because he has a Polish last name.

My granddaughter, Charlee, has learnt the lesson of racism at a very young age. When she was living in Geraldton, a regional town in the Mid West of Western Australia, she was about 11 years old, and we were out shopping together in Geraldton. We passed a particular shop, and Charlee pointed that shop out to me. She said she had visited that shop with her mum. Charlee is Kija. She said the shopkeeper had followed her and her mother around, watching them, thinking they might steal something. When I asked Charlee why the shopkeeper may have thought that, she responded by saying, 'Because I'm Aboriginal.' It is a shameful that 11-year-old Charlee has learnt that lesson at such a tender age. Charlee has learnt that the colour of her skin somehow makes her different to other people and causes some people to be suspicious of her

Senator Patrick Dodson said in this chamber on 24 November 2016:

There is nothing wrong with freedom, particularly if you are from the ruling class. There is a hell of a lot wrong with freedom if you have to battle to experience it—if you have to fight for it. I was born before the 1967 referendum, when we as Aboriginal people were not even counted in the census of this country, when this government did not have any power to make laws for Aboriginal people because it was excluded by the crafters of our Constitution in 1901. The whole battle for recognition—for freedom to enjoy the basics of being a citizen —in this nation had to be fought for by black and white Australians: Jessie Street, Faith Bandler and many others.

My colleague Senator McCarthy just last week, when taking note of answers, had this to say on 18C amendments in response to answers given by Senator Brandis:

As a white man growing up in Petersham, attending private schools, I am sure you have never been denied access or service in a shop. You have never had taxis drive past, pretending not to see you. You have never received hateful letters and emails because of your race or the colour of your skin. I really wish I could believe there are not any racists in Australia. But certainly my personal experience, and my family’s experience, informs me of the reality that I live in this country.

That has been the experience of my grandchildren, Aidan and Charlee. That is what they have learnt.

On Tuesday, in this place, Senator Brandis made this extraordinary statement in relation to 18C when he said in part:

But the public discussion of section 18C continued, in particular because we continued to see section 18C being used as a vehicle for the persecution of innocent Australians …

Well, I think that my grandchildren, Aidan and Charlee, are innocent and yet they have been vilified, they have been humiliated and they have been insulted because of the colour of their skin. Well, I say to Senator Brandis and others in here who think it is okay to remove those words—who somehow think we are live in this utopia where we all get along and no-one makes insulting remarks to anyone else—walk a day in the shoes of an Aboriginal or Torres Strait Islander person in this country. Walk a day in the shoes of someone from an ethnic community to get a real understanding of the meaning of persecution.

Stirling Griff (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

It bothers me that I even have to speak today on such a confected problem. We are debating a bill that has, at its heart, a change that is simply not necessary, as our courts have proven time and time again. The government is proposing to amend section 18C of the Racial Discrimination Act 1975, to allow people to offend, insult and humiliate others on the basis of their race, religion or skin colour, because it thinks the current laws set the bar too low—that boggles the mind. How does this government feel it is appropriate to, in effect, sanction the public humiliation of another person? Instead, it wants to set the bar to what it believes is a more appropriate standard of harassment and intimidation.

In the government's eyes, it is not enough that someone is made to feel like a lesser human and have their dignity and self-worth stripped away by insulting slurs and hateful words and actions—there has to be some higher level of fear and torment. Imagine how that plays out. Imagine being a new migrant, for instance, and being publically humiliated by a person spewing racial or religious hate, who verbally attacks you in front of your young children—children who see you as a hero. The sense of powerlessness and shame this creates would last a lifetime. Imagine the anger that would burn in you when you revisit that moment in your mind. Imagine how unwelcome it would make you feel in your new homeland.

Australia has always prided itself on its multicultural cohesiveness. We are a land built on migration where people of different nationalities, ethnicities and religions have come together to build a modern and peaceful nation. Underpinning this has been, in essence if not always in practice, a respect and tolerance for each other. The very same people who champion free speech and want to change 18C would no doubt also demand that migrants assimilate and take on Australian values. And yet, how can any vilified migrant do this when that vilification only serves to create a sense of exclusion that inhibits them from freely participating in community life? This pointless and mean-spirited attempt to diminish 18C sends the message that a cohesive multicultural nation is no longer important and that the relative harmony we enjoy is not worth protecting. It fails to recognise that free speech is not a hate-filled free-for-all. The message it sends is that it is okay to strip away civility and to insult, offend or humiliate another person without repercussions, and that anyone who thinks otherwise is politically correct or overly sensitive. Frankly, this can only ever be the view of someone who has never experienced vilification based on their race, religion or skin colour, and who is in the convenient position of never having had to seek the protections of 18C.

What has been largely ignored in this debate is that exemptions in section 18D are a very broad and strong defence to claims brought before section 18C. This begs the question, in what ways have the courts, guided by the current laws, failed us? They have repeatedly shown that they do not tolerate vexatious claims. You cannot sue over hurt feelings. So, I ask again: how have the current laws failed us?

In his 2014 PEN essay on the freedom of speech and Australia's Racial Discrimination Act, the Race Discrimination Commissioner wrote:

Any debate should also be based on a sound understanding of how the Racial Discrimination Act in fact operates. There are numerous points of misunderstanding—for instance, the oft-made claims that racial vilification laws criminalise hate speech or involve a form of state censorship. The law as it currently exists involves neither of these things. Moreover, courts have interpreted the law only to apply to those acts that cause profound and serious effects, as distinct from hurt feelings.

The case for changing the Racial Discrimination Act has not been made. There is no compelling evidence that the law has a chilling effect on freedom of expression in Australia. A weakening of racial hate speech laws may have the effect of emboldening a minority of Australians with bigoted views. To those who would champion a right to be a bigot, we should ask: must this supposed right outweigh a right to be free from the effects of bigotry?

The Human Rights Legislation Amendment Bill 2017 also seeks to add the objective test of whether an act is reasonably likely to harass or intimidate a person, or group of persons, as assessed by 'a reasonable member of the Australian community'. It completely ignores that the courts have been applying the law according to a much more sensible objective standard, which is to assess the offending act in light of how reasonable members of the same community would feel, not some blokes down at the pub who might just think, 'Toughen up, mate.'

The Human Rights Law Centre put it so eloquently in their recent submission to the Senate Legal and Constitutional Affairs Legislation Committee, where they said:

It is racial and ethnic minority groups that suffer the impacts of racism, not the Australian community as a whole. We cannot, and should not, expect a reasonable member of the Australian community, who has never had the distressing and degrading experience of being called a 'coon', a 'black—

and I won't say the word because it would be in breach of the standing orders—

a 'terrorist' or being told that 'Hitler should have finished you', to understand the impact of such statements and the fear and sense of exclusion they create.

Both the Law Council of Australia and the Human Rights Law Centre argue that the current test is an adequate one and changing it could have unintended consequences such as reinforcing prejudice, particularly against unpopular racial minorities.

As I have said, the courts have shown that they will not entertain a case that is brought by an overly sensitive person or group. This has been amply demonstrated in the QUT case, where the Federal Court decided the three university students had no case to answer for their flippant comments and Facebook post, and that the Human Rights Commission should never have pursued it. What this highlighted for us, however, is that there are flaws in the system before cases even get to court. This is where we should look to change. My colleagues and I want to see strong reforms to the process because the process has, in effect, become the punishment.

Such reforms will go a very long way in dealing with concerns that have been expressed about 18C. It is important to also note in this debate that section 18C is not a new provision. It was inserted into the Racial Discrimination Act 1975 over 20 years ago, in 1995. This was in response to recommendations from major inquiries, including the national inquiry into racist violence and the Royal Commission into Aboriginal Deaths in Custody. These inquiries found that racial hatred and vilification can cause emotional and psychological harm to their targets and reinforce other forms of discrimination and exclusion. They found that seemingly low-level behaviour can soften the environment for more severe acts of harassment, intimidation or violence by effectively condoning such acts.

Since then, the courts have consistently interpreted sections 18C and 18D as maintaining a balance between freedom of speech and freedom from racial vilification. In various decisions, the courts have held that for conduct to be covered by section 18C, it must involve profound and serious effects not mere slights. The courts have also found that section 18C is an appropriate measure to implement Australia's obligations to prohibit racial hatred under the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights.

As the Law Council of Australia president Fiona McLeod told ABC NewsRadio's breakfast program on 21 March this year:

The cases coming before the court have been decided by some of our most senior officers and they decided that the provisions and protections of the various sections; that's 18B, C and D of the Act read together, provide protections against the most profound and serious effects.

The parliament often responds to judgements of the courts that highlight a particular anomaly, flaw or inconsistency with the law. The native title amendment bill is an example of this process in action.

In the case of 18C, the courts have not criticised the wording or said that they do not strike the right balance between freedom of speech and protection from racial vilification—far from it. When taking calls on this issue, some of my staff told me that members of the public would refer to the QUT case and the late, great Bill Leak as to why section 18C needs to be changed. What these callers are witnessing is a result of a flawed process not a flawed law. These cases should never have progressed as far as they did and we are pleased that this bill at least seeks to ensure that the commission's processes will be improved to ensure they are fair to all parties and their claims that have no merit cannot proceed to the courts.

Fiona McLeod in the same interview with ABC NewsRadio said:

… the Human Rights Commission needs a mechanism so that it is able to deal with these disputes early, and we certainly support the strengthening of those provisions which let it, for example, decide that certain cases do not make the threshold of the current provision and to strike them out.

To sum up our position, my colleagues and I believe a case has been made to change the Australian Human Rights Commission's complaints handling processes, but we cannot in good conscience support any changes to the wordings of section 18C. That is why we are moving an amendment to remove schedule 1 from the bill. As the law currently stands, 18C strikes the right balance between freedom of speech and protection from racial hatred.

I note the government has made further amendments to schedules 1 and 2 of the current bill. As we do not support any changes to section 18C, I can indicate that we will not be supporting the amendments listed on sheet HV208.

The amendments listed on HZ118, according to the supplementary explanatory memorandum, address technical issues in the bill to ensure that the government's policy intention in improving the commission's complaints handling processes can be properly implemented and do not impose a disproportionate regulatory or administrative burden on the commission. These amendments will also ensure that complainants, respondents and the commission itself have a clear understanding of their rights and obligations throughout the complaints handling process. They are a welcome improvement but more work certainly needs to be done.

The Law Council of Australia believes that not all the issues have been addressed, and we remain concerned about two key issues. Firstly, the transitional arrangements outlined in the government's amendment apply to complaints made prior to the commencement of the relevant provisions. This is a change from what was originally proposed. It would have an impact on approximately 2,000 complaints that are currently before the commission and would require an unnecessary diversion of the commission's resources. We support the original transitional and application provisions contained in the bill and urge the government to reconsider its approach.

Finally, item 57 of the bill, relating to costs, should be removed. The court already has a discretion as to costs and can have regard to offers to settle. This amendment is unnecessary and should be removed.

We also have other concerns that are not addressed by this bill or the new amendments. My colleague Senator Xenophon asked Professor Gillian Triggs at the Legal and Constitutional Affairs Legislation Committee inquiry into this bill about any confidentiality requirements when complaints are before the commission. We are concerned that there may be cases where a complaint is made, particularly when it is frivolous or vexatious, and the complainant then publicly names the respondent, or vice versa, which would lead to added and unnecessary distress. Professor Triggs took this question on notice and the commission provided further information, which we appreciated. The commission stated that there is currently no obligation on parties not to disclose the fact that a complaint has been made or the details of the complaint. In general, increased publicity tends to make it more difficult for the parties to achieve a conciliated outcome through the commission's processes. The commission considered that there was a potential benefit in Senator Xenophon's proposal that confidentiality be maintained up until the end of the conciliation stage. This is a proposal that we want to explore in more detail but, unfortunately, time is not something we have a lot of this week.

As I said at the outset, the Nick Xenophon Team has been consistent in calling for reforms to the complaints-handling process. The Senate should not rush this legislation through for the sake of political convenience. We need to make sure we get this right.

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

Je suis Charlie—I am Charlie. Those words, as we know, resonated around the world on and after 7 January 2015, when two brothers, Said and Cherif Kouachi, burst into the offices of Charlie Hebdo, a satirical magazine based in Paris, and murdered 12 people and shot to injure 11 others simply because they were exercising their right to freedom of speech. Such was the hatred of those two brothers towards satirical cartoonists who were exercising a right that has long been established in France and elsewhere that it led to those cartoonists being murdered or injured. Indeed, our own President Parry represented the parliament and the people of Australia at the memorial service that occurred in Paris soon after that event. The world was outraged. Everybody went around with T-shirts with those words 'Je suis Charlie'—I am Charlie. Yet, all too quickly, many people who confected that particular view have had cause to change it in relation to the debate that is in front of us at the moment.

Go back into history, because if we ignore or forget the lessons of history we are bound to repeat them. I do not know if it was the French historian and philosopher Voltaire, who lived between 1694 and 1778, who wrote these words, which we all know, but let's give him the credit for them: 'I disapprove of what you say, but I will defend to the death your right to say it.' We can go forward to the first President of the United States of America, George Washington, and I quote his comment:

… the freedom of Speech may be taken away—and, dumb & silent we may be led, like sheep, to the Slaughter.

Come forward to the present day and let's examine some of the comments of people in the current sphere on their view on 18C and whether it needs amendment. Mr David Marr, a person not given to the right of politics, has spoken on this matter. I will quote three of his statements. In the first he says:

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

Elsewhere he has said:

Offence and insults are the everyday reality of free discourse.

That resonates with Voltaire and Washington. In the third of his quotes that I will refer to he says:

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

I will now go to comments of Professor James Spigelman, a former Chief Justice of the Supreme Court of New South Wales and, until recently, chairman of the Australian Broadcasting Corporation. He has said:

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.

Those are the words of the ex-Chief Justice of the Supreme Court of New South Wales. In the same debate he also said:

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

I go now to the comments of former senator Joe Bullock, whose only offence was to say to his then leader, Mr Shorten, 'If you want to continue to support same-sex marriage, then, unfortunately, I will have to pack my bags.' I still feel very angry about that fact today. This is what Senator Bullock said in a speech in this place:

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.

Those are the words of then Senator Joe Bullock.

I go, if I may, to Father Frank Brennan. Again, a Jesuit priest would normally be regarded as one of a different political persuasion to that of my own and, of course, he is the son of a past Chief Justice of the High Court of Australia. He said this on 13 March this year. You cannot be much more current than that. He said:

I have since been convinced that a provision like 18C could be designed to target racial vilification, leaving offensive insults beyond the reach of the law in a robust democracy committed to freedom of speech.

The last I wish to quote from—again, they are not a person you would think is normally on our side of the political divide—is the lawyer Julian Burnside QC. We know him to be an asylum seeker advocate and lawyer. He said that people should not be prosecuted for offending a group of people on racial grounds. He made the observation that existing racial discrimination laws go too far by making it an offence to upset people. That is according to Julian Burnside. He said:

The mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability.

And:

My personal view is that 18C probably reached a bit far so a bit of fine-tuning would probably be OK.

Other people who have spoken in this space are none other than Human Rights Commissioner, Professor Gillian Triggs, who has recommended that major changes be undertaken, and indeed the Law Reform Commission.

I want to draw the attention of the chamber and those who might be listening to some definitions because they are critically important to the dialogue associated with this debate. The definition of 'intimidate' is to frighten, to threaten or to severely overawe. That of 'harass' is to torment, to persistently and continually disturb and annoy. One could not have anything but sympathy for the comments of others in this place drawing attention to the unacceptable behaviours of people towards others. I refer to Senator Lines' comments particularly. But I put to you that what Senator Lines was referring to were acts associated with attempts to intimidate or harass, and the strength of this proposed legislation is the introduction of 'harass' for the first time. It should always have been there—to torment or persistently disturb or annoy. What is the absolutely essential element of those two in contrast to the other three words? It is this: they are aimed to stop a person going about their normal business. If you think back to the comments that we heard, particularly from my colleague Senator Lines, you can see that those sorts of references and others, which should remain, are there to stop a person going about their normal business. Let me, if I may, contrast those with definitions of the others. 'Offend': to displease or to cause anger. 'Insult': be offensive and indicate to somebody their worthlessness. 'Humiliate': to suggest an indignity to a person; to interfere with their self-respect or to embarrass them. In contrast to the first two, which interfere with the normal activities of a person going about their business, I put to the chamber that the other three relate to hurt feelings. I have no doubt at all that is quite possible.

I have made the comment at different times—and it was levelled at me as a kid—that I am the grandson of bog Irish peasant farmers, and I am. The interesting thing is: in the mind of the person levelling that allegation, do they have any idea as to whether I felt humiliated, insulted or offended? How can they know what my response would be to the fact that both my maternal grandfather and my maternal grandmother came from, respectively, Galway and Tipperary? Mr Acting Deputy President Bernardi, you would know that, far from being offended, insulted or humiliated, I am absolutely overjoyed. I and members of my family, when we went to the north-eastern wheat belt area of Yelbeni recently, placed a plaque on a piece of granite, recognising the centenary of my grandfather taking up that land. He was the first farmer in that district. My extended family and I recounted all of the areas where their many grandchildren and now great-grandchildren have found themselves in professions around the world, around Australia and around Western Australia, contributing to the wellbeing of this place. Yet the words of that person, in calling me the grandson of a bog Irish peasant farmer, may well have been offensive, insulting or humiliating, but in no way did it stop me going about my daily business.

I want to make brief reference to one other term that is used in this place. There has been great argument from others regarding Senator Brandis, the Leader of the Government in the Senate, the Attorney-General, in relation to the term 'bigot'. I will place on the record what the definition of 'bigot' is. It is a person who is utterly intolerant of any differing creed, belief or opinion or prejudice. All 75 of us spend plenty of time in this place and I would venture the opinion that all of us, or certainly most of us, could have reasonably levelled at us the fact that we have been utterly intolerant of the view of another or their opinion or their belief. We see it in question time every single day. That is what a bigot is, and it should be recorded to be so.

Reference has been made to the events relating to the Queensland University of Technology students. I do not intend to prosecute that much further, except to say, as my colleague Senator Griff said, it was eventually sorted out in the courts. You yourself, when you were contributing to this debate, Acting Deputy President Bernardi, from your experience involved in the court process—and there are some in this place who have had it—know that it is very much more complex, time-consuming, emotional, draining and costly than just saying, 'It was sorted out in the courts.' In fact, I saw the comment of one journalist, 'Nothing to report here.' There was plenty to report here all right, and it was a scandalous example of an abrogation of responsibility by the Human Rights Commission and its president. Indeed, thank the Lord that competent pro bono legal advice was given to some of those students.

I refer to Mr Bill Leak's cartoon. I want to comment not so much of the content of the cartoon but on the wonderful commentary given by a past national president of the Australian Labor Party, Mr Warren Mundine, himself an Aboriginal man. Mundine made the point very strongly that those who condemned Bill Leak should themselves be the ones condemned, because, as Mundine eloquently pointed out in the media, Leak was simply trying to point out what those of us who have some association with different communities, including remote communities, around this country know to be the case and deal with on a daily basis. We see the prosecution of Mr Andrew Bolt. Julian Burnside QC made the point that the plaintiffs could well have brought a libel charge against Bolt, but, no, it was worked out through 18C.

Senator Griff has pointed out his support, and that of his colleagues, for the reform to the complaints-handling process of the Human Rights Commission. I do not want to spend much more of the chamber's time, except to say that it is the case—I agree with Senator Griff—that it is an abuse of process. It is a sad dereliction in the current precepts and handling processes of the commission that either the Queensland University of Technology case or that of Mr Bill Leak were ever prosecuted to the extent they were and for the time they were. We had the regrettable circumstance of two members of the Aboriginal Legal Service of Western Australia going to Fitzroy Crossing, having a chat with a couple of Aboriginal gentlemen, putting to them the fact that this was offensive and getting them to make a formal complaint. Only afterwards, once they realised what it was they had been asked to involve themselves in, did they reverse their decision. In this place I have challenged the Aboriginal Legal Service of Western Australia to explain the actions of those two people and to defend them. Unless I am mistaken, to this moment there has been no attempt to defend or to explain what one may reasonably call entrapment.

I conclude simply with the observation that in a robust economy, in a robust democracy, in the place where robust thoughts are argued out, it is perfectly reasonable for this to take place. I conclude simply, in my poor French, with the words, 'Je suis Bill Leak.'

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

What cannot be said because of 18C? It is a question repeated ad nauseam by Labor, the Greens and the journalists who barrack for them. Today I will say some things that violate 18C and that may get no protection from 18D. I am happy to repeat them outside of parliament so that we can find out. 18C is being defended by self-appointed representatives of Armenian, Hellenic, Indian, Chinese, Vietnamese, Japanese, Jewish, Lebanese Muslim and Arab groups. These largely self-appointed representatives do not subscribe to Australian values. They are encouraging the groups they purport to represent to reject the path of integration and assimilation that has served so many migrants well in the past. They are encouraging the groups they purport to represent to favour and promote the repressive policies of the places they came from.

We have self-appointed representatives of Islam, who actually represent the Salafist Islamism prevalent in Saudi Arabia, wanting to suppress any counter to the suggestion that Islam is the most feminist religion in the world. We have representatives of Chinese Australians, or at least of those Chinese Australians who swell with pride about Chinese authoritarianism, wanting to suppress anti-Chinese sentiment. We have representatives of Japanese Australians wanting to suppress all reminders of comfort women. We have representatives of Turkish Australians wanting to suppress claims of Turkish genocide, and representatives of Armenian Australians wanting to suppress the Turkish responses to their claims of genocide. We have self-appointed representatives of Jewish Australians wanting to suppress Holocaust denialism.

Labor and the Greens are doing the bidding of these self-appointed representatives in the hope of votes from the various immigrant groups, and in the process they are selling out Western values. We need to be very clear with the self-appointed representatives of immigrant groups. Australia maintains the Western Judeo-Christian civilisation, the finest civilisation of all time. We hold dear the values and institutions fostered originally in Britain and so successfully transplanted here over the past 200 years. We subscribe to equality before the law, so we are all bound by these values and institutions, whether we are descendants of those who came here tens of thousands of years ago, or we just landed here. We will prevent and punish crime, and report on it in our free press, even when the crime is disproportionately carried out by recent Sudanese migrants, second generation Lebanese Muslims, or Aborigines. We will remove your children from you if you neglect them or abuse them, even if that neglect and abuse is a consequence of your Aboriginal ancestors being dispossessed centuries ago, and subsequent mistreatment of you and your ancestors.

We believe in equality of the sexes, so you are not free to mutilate your daughter's genitals, arrange her marriage in her childhood, have sex with your wife irrespective of her willingness, or get automatic custody of your children if your marriage collapses. We believe in freedom from arbitrary arrest, an independent judiciary and the right to a fair trial, and we oppose the death penalty. That is why we will not ratify an extradition treaty with Communist China, or any other backward, repressive regime. We are a meritocracy and we hold our government to account for its use of taxpayers' funds—which is why newspaper articles should be free to mock affirmative action policies for pale-skinned Australians with some Aboriginal heritage, without those articles being deemed unlawful.

What I have just said would have offended certain people on the basis of their race, colour or national or ethnic origin, so what I have just said would violate 18C. In answer to the question often posed by Labor and the Greens, these are the things that cannot be said because of 18C, except if you enjoy parliamentary privilege or are willing to pay a court-ordered penalty. What I have said may also have 'harassed' certain people, particularly if I mentioned the names of the self-appointed representatives I was referring to. Indeed, such comments may well be thought of as 'harassment' by the 'ordinary reasonable person'—so what I have said could still violate 18C even if we use the word 'harass', and even if we adopt an 'ordinary reasonable person' test, as the government's bill proposes. Finally, a court might not consider my comments to be reasonable or made in good faith, in which case I would get no protection from 18D.

The government's bill is an improvement on the status quo, and I support it. But if you support Western civilisation, the best civilisation we have ever had, 18C must go.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Human Rights Legislation Amendment Bill, because this is an important issue. I made some comments in my maiden speech in this place on what are those things about democracy that are worth defending. It is not so much the benefits; it is about those principles, those things, that underpin a plural liberal secular democracy. Freedom of speech and thought, freedom of association and all those things are part of it, and that is why this is important.

This debate is problematic. The examples that are often given by those who wish to keep 18C as it is often go to the personal interactions between people. There have been not only in the chamber here but also in committee hearings some very distressing stories told about the personal interactions between people when people have been harassed or intimidated on the basis of their race. There is no-one in this place who would find that acceptable. I think it is fair to say, and let me be clear, nobody wants to see someone harassed on the basis of the colour of their skin. But nor should anyone here want to see a cartoonist harassed by a government authority for expressing a view.

The difference between those two cases is that on one hand you have a fairly clear, directed, personal attack on somebody that is intimidating or harassing, bearing in mind the definition of 'harassment' in this bill means that it can be a one-off event and it is not the circular argument that some people have pointed to with other definitions of 'harassment'. So the government is actually strengthening the provision against that individual case. As I said, to be clear, nobody supports that sort of harassment. The problem with the other case, the more general public statement, is that there is no clear threshold, no predictor that somebody can use, as to what that threshold of offence is. It is instructional when we look at this broader type of statement to look at the Bill Leak case because it is a fantastic exemplar of this in action.

Submissions to the inquiry on 18C and how it should be interpreted have said, 'Look you cannot have the reasonable person test because you have not walked in that person's shoes, you do not understand what they have gone through.' That is a fair argument from one perspective, but in this case we saw some people—Senator Back just referred to this—from the Aboriginal Legal Service going out and encouraging people, saying, 'Don't you find that offensive; we should take some action over this.' So that is one threshold where people have taken offence. But then you have people like Mr Mundine, who wrote a very good article in the press which highlighted his background, highlighted the fact that he was one of the Indigenous population group and his background was not a privileged one. He had experienced all kinds of actions, and yet he, as a member of that people group, made the very clear statement that some people see racism where there is none—referring to Bill Leak's cartoon. That identifies a very clear difference between that personal, one-on-one incident of harassment and intimidation and a case where somebody is expressing a view, and there is no clear threshold at the moment, no predictor of the threshold, for me to understand or for Bill Leak to have understood, 'Am I going to get the Aboriginal Legal Service's response or am I going to get Warren Mundine's response?'

That is not an acceptable place for our society to be in, because it means that the intent, the purpose, of an expression is judged lawful or unlawful on the unquantifiable response of even one other individual who may choose to say, 'I take offence at that.' We saw that in the case of the QUT students. We see it often where difficult subjects come up—subjects that people feel personally. They may well have had experiences in their past that are painful and disturbing. They will choose to respond in certain ways.

But, if one of the fundamental parts of our democracy is that people can speak about difficult topics, we need to allow for the fact that not everybody will have the training of a lawyer and not everyone will have the opportunity to research case history before exercising that right. In fact, Justice Kirby in his judgement in the decision of the High Court in 2004 in Coleman v Power said:

In Australia, we tolerate robust public expression of opinions because it is part of our freedom and inherent in the constitutional system of representative democracy. That system requires freedom of communication. It belongs to the obsessive, the emotional and the inarticulate as it does the logical, the cerebral and the restrained.

Those are not my words. That is Justice Kirby. It highlights the fact that, when people enter into this debate around ideas, they may not have the background to understand all the jurisprudence around what has or has not been accepted in the past for 18C—the high legal standard that we are constantly told is applied for 18C.

Part of the problem—as we saw for the QUT case, for Mr Leak, for names that are undisclosed but the reports from the Human Rights Commission identify, and for many hundreds of other people, who have ended up paying in the order of hundreds of thousands, nearly a million, dollars in these processes—is the process. When somebody says, 'I'm offended,' and goes to the Human Rights Commission, the process itself is debilitating and punishing even if things do not get to the court. So we need to look at how we word this piece of legislation that protects the individuals in all those cases we have heard. The government are strengthening this so that we do protect people from that harassment, or that intimidation, but we provide a platform, an ability, for people who want to contribute to the public debate in good faith and not be hauled up before a state authority because one person or a group of people, in the words of Warren Mundine, see racism where it is not.

It is important that we resolve this now, because, as we have seen in the media just in the last week, there have already been discussions by the opposition about how this potentially should apply not just to the Racial Discrimination Act; this 18C construct should apply more broadly, whether it be in religion, sexuality or other areas. When we look at the reluctance of sections of our community now, in the absence of any law, to be tolerant of views that differ from their own, I shudder to think of the consequences if this were wrapped up in a law and a process that is similar to section 18C of the Racial Discrimination Act.

Let us take another very current example, the debate on a Bible Society video where people were drinking a Coopers beer. I have watched that. I know both of the gentleman concerned. The debate was civil. It was informed. You could even say it was innocuous, except that in the current climate it was challenging. It was challenging because, despite the rhetoric of the progressive left that anyone who does not agree with their view is a hateful bigot, it demonstrated that people of good character and goodwill can have differing points of view and discuss it in a civil way. It said that both of those people have worth. Their views have a place in our society. Our society, if it is to function as a plural, liberal, secular democracy, must allow people to discuss and debate ideas in that format.

But what happened? We saw outrage on social media. We saw people boycotting the products of Coopers, who were by and large the innocent party in this whole affair. Damage was done to people, in this case a company, by people who were intolerant of ideas that differed from theirs. So if we already see, under section 18C of the Racial Discrimination Act, people seeing racism where there is none, and in cases like this we see people seeing bigotry and hatred where there is demonstrably none, then I shudder to think of adding the weight of law to that.

Likewise the case of Mark Allaby, an employee of IBM, who was singled out by activists who questioned why he should be allowed to work for a firm that was an avowed supporter of diversity, equity and marriage equality—and that is fine; they are quite entitled to do that if they wish. This person was singled out on the basis of his association with a group that was looking to raise up and train articulate contributors to our society. If you look at the Lachlan Macquarie Institute and you look at what they are about, they are about training people to participate in an articulate and informed way in the debates of our society and in our culture, not to dominate it, not to impose their views on others, but to contribute to see where their world view has a place.

If you look at the people who are on the board of that institute, you do not see people who you would characterise in any negative terms. There are people there who for a number of years have been committed to relieving global poverty, who are involved in microfinancing initiatives for people in developing countries. We see people who are concerned about housing availability for those least able to obtain housing in our community. We see people who are committed to preventing modern slavery and the trafficking of people. We see people who have served their country in the Defence Force for over 30 years. These are quality people, who have contributed to our society, to the poor, to the global good, yet from the way they are labelled by the Left you would assume that they are the worst of the worst people and wonder why would IBM want one of them on its board. In fact, the person who started that diatribe against him, which I understand has resulted in Mr Allaby having to stand down from the board of the Lachlan Macquarie Institute, said that this is not about freedom of religion—he can have his belief; he can go to church. But if you look at article 23 of the International Covenant on Civil and Political Rights, you will see the non-derogable writer that person is not only to have his belief or his faith or his conscientious thought but, unless there is a competing right, which in this case there is not, he is also free to express it, to manifest it, to teach it. Article 22 guarantees the freedom of association, so Mr Allaby is quite free, and we should be backing him to the hilt, about his freedom of association, particularly with a group where other board members have such high standards and records of ethical contribution to our society and to the population of the world more broadly.

I think it is important that we come to the statement that was issued just recently about our shared values on multiculturalism. This is something issued by the government, but the opposition has lent its support and said that it is a positive document. Under the heading 'Freedom' it says:

We support freedom of thought, speech, religion, enterprise, and association.

Those detractors of Mr Allaby should realise that he has a right to have his faith, to associate with a group that is a positive group developing people's character and ability to contribute to our society. That right should never be undermined. We need national leadership from this parliament and, I would argue, even in the business place to support people like him. Rather than remaining silent, I would like to see the CEOs of those companies out supporting these fundamental rights. They write letters on other topics; you can argue whether or not they should be, but they do, and they have a right to do that.

IBM's equity and diversity statement says:

A key element in our workforce diversity programs is IBM’s long-standing commitment to equal opportunity.

Business activities such as hiring, promotion and compensation of employees are conducted without regard to gender, race, religion, gender identity or expression, sexual orientation, national origin, genetics, disability, or age.

It goes on to say:

IBMers around the world work in an environment where diversity—including diversity of thought—is the norm and innovation can flourish.

What the activists are demanding, and what it appears IBM have acquiesced to, is to say, 'No, we will have a workplace with no diversity of thought. We will not allow people to have any opinion on this topic'—and perhaps other topics—'that deviates from the norm that the company has established.' That is not diversity. If they want diversity and the innovation that they say will flourish through diversity they actually need to live that out. All corporates do. All members of this place should recognise that diversity is important. I have stood here before and put forward my view on contentious topics in a polite, respectful way, with no hatred, but I have been called a hater and a bigot in this place. That to my mind says that people do not actually understand what diversity and equality mean. They do not understand the very nature of a liberal, plural, secular democracy, where people should be free to do what our new statement on multiculturalism says:

We support freedom of thought, speech, religion, enterprise, and association.

So to my mind, national leadership on this is required, and the government is seeking to do that through these reforms. The reforms provide that leadership in terms of the wording of amended section 18C to strengthen the case that are talked about at the start, where individuals are harassed or intimidated one on one. We are strengthening that, because currently there is no protection for harassment. When this all started back in 1995, that was the recommendation, that section 18C of the Racial Discrimination Act should prevent harassment. So the government is strengthening this provision by putting that in. But we are also strengthening the freedom of thought and speech in this nation, particularly of those areas where people are expressing a view, and we are recognising the fact that even within a subpopulation group you will get the diversity of people like the Aboriginal legal service of WA and Mr Warren Mundine. Who in this place is to judge which of those two is right? If Mr Mundine says others see racism where there is none but he sees none, why should we say he is wrong? Without that predictable threshold, we need to change that wording.

For a similar reason, we also need to change the basis upon which the judgement is made. That is why the government is looking at 'the reasonable person', which is common across pretty much all of our other statutes, in that we look at what a reasonable member of the Australian population would think. That is why juries are chosen at random to be brought in, so we have a cross-section of ordinary Australians who come in to apply their judgement to a certain conduct and evidence that goes before them.

Lastly, because the process itself has often been the punishment for people, this legislation also looks at changing the process of making complaints at the Human Rights Commission. This is an important issue, because we need to protect the individuals. As I said at the outset, let me be clear: nobody in this place should—or, I would argue, does—support that kind of harassment or intimidation of an individual. But likewise nobody in this place, the centre of Australia's democracy, should support situations where we cannot discuss freely and put forward views in society without a government-funded authority being used as a threat to shut down that discussion. This government is taking national leadership in this space. I would encourage corporates and other people to take leadership to support those people within their workplace to have true diversity, freedom of speech and association.

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

I really cannot believe we are here in 2017 debating again the issue of watering down protections against race hate speech in this country. But, yes, here we are again, thanks to a certain group within the Liberal Party who are absolutely obsessed with trying to water down the protections that we currently have provided in section 18C of the Racial Discrimination Act. There was a reprieve some years ago, and we thought that the government had seen the error of its ways. It dumped changes that it wanted to make at that time which were basically very similar to what we have before us now—changes to water down those protections against race hate speech. But unfortunately they have raised their ugly heads again. A certain group within the Liberal Party has lobbied the Prime Minister hard to make him backflip and bring this legislation on. So unfortunately we are back here again. And look at the day that they chose to do it. It was actually on Harmony Day, the day that we celebrate that everyone belongs. That is the day that the government chose to announce that it would be bringing forward legislation to water down the very essence that ensures that everyone belongs, the underpinning of everyone belonging, and that is the race hate laws in Australia. What an absolute disgrace.

Who would have thought it? If you had been asked which one, out of Tony Abbott and Malcolm Turnbull, would bring forward legislation to water down these laws, you would have thought that perhaps Tony Abbott would have been the one to do it. You would never have thought that Prime Minister Malcolm Turnbull would be doing such a thing—someone whom people once referred to as a small 'l' liberal, not one of the cabal to bring these laws on. And that is what it is: a particular group within the Liberal Party who are absolutely obsessed with this issue. They do not care for the fact that out there in the street no-one is talking about this. No-one is coming up to me—or to any member of this Senate, I do not think—and saying, 'When are you going to water down race hate laws in this country? When are you going to do something about section 18C?' That is not what people are talking about on the street.

What people on the street are asking is, 'When are we going to have, legislated in the Australian parliament, marriage equality?' That is what people are asking. People are asking, 'When is the government going to act on climate change? When is the government going to address underemployment in this country and inequality in this country?' These are the issues that people on the street are actually talking about. If those Liberals who are obsessed with this issue would get out of this bubble in Canberra and actually talk to some real people about what their issues and concerns are, they would soon realise that nowhere on that list is 'Let's reform and water down section 18C of the Racial Discrimination Act'. And yet here we are. I look forward to the crossbench supporting Labor to stop this government obsession with allowing bigots to have that right to be bigots—because that is what this is about.

An interesting poll came out this week—a Fairfax Ipsos poll—which showed very clearly, from about 1,400 voters, that 78 per cent of Australians believe it should be unlawful to offend, insult or humiliate someone on the basis of their race or ethnicity. Seventy-six per cent of respondents who intend to vote for the coalition in fact said they support retaining the words 'offend, insult, humiliate'. So, even if you do not want to listen to the average person on the street, what about listening to some of your own supporters who do not want this law changed? Deputy Prime Minister Barnaby Joyce himself made it clear that this does not resonate as an issue with mainstream voters. It is not passing the pub test, as one would say.

So why are we here? It was 2014 that we were debating this last time, under an Abbott prime ministership. It is 2017, and we are back doing it again. It is like we are in some kind of groundhog day on the issue. Just as Labor won the fight to protect Australia's laws against racial discrimination in 2014, we will do it again. We still do not have an answer, though, to the question that the Prime Minister refuses to answer, and that is: what does he want people to be able to say that they cannot say now? What is it that those Liberals who want this law changed so desperately want to say that they cannot say now under the current law? One thing we know very clearly about this law is that it is not just about people's feelings getting hurt. The bar is higher than that, and the government knows that. It knows it very clearly. Therefore, what is it that they really want to say to people of different race that they cannot currently say? The court has interpreted section 18C so that it only applies to 'profound and serious effects, not to be likened to mere slights'. There is the bar. The bar is there. So why does the government want to repeal those three words and water them down, replacing them with one word, 'harass'? It does not make sense.

I say to this government: haven't Aboriginal people in this country gone through enough already; do you really need to do this? Haven't ethnic groups and new migrants all done enough to try and fit in to this country, to the Australian way of life; do they really deserve this? These are the people that you are attacking by bringing this ridiculous piece of legislation back into this place. This is a complete failure of Malcolm Turnbull's leadership, as if we did not have other examples of that failure already. Even Tony Abbott—even Tony Abbott—stood up to the IPA faction of the Liberal Party and dropped his idea to change the law, back in 2014.

I hope that the government learns from this. I hope that, after the votes are cast in this place tonight, the government learns from this and drops its ridiculous obsession with wanting to give the green light to racists, bigots and anyone else who feels that the current laws do not give them enough freedom to say whatever it is that they want to say. And I ask them: what is that? What is it that you feel so constrained about, living in Australia, that you cannot say to people of different races? What is it?

The law as it stands works fine. The polls that have been conducted say that the public think that the law works fine. No-one on the street is talking about having these laws changed. This is just a ridiculous waste of the Senate's time, and it shows that the government is completely out of touch with Australian values, with the Australian idea of what it means to live in a multicultural country and with what is important to Australians. The sooner the government wakes up and realises that, the better. The sooner this government is voted out of office—even better.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

This debate is not happening in a vacuum. It is not something confined to the chambers of this parliament, inside the Beltway and Parliament House. It is happening in an environment in Australia where racist hate-speak is on the rise, and where people of colour, of diverse multicultural backgrounds cannot walk down the street without feeling threatened. It is happening in an environment where there has been an increase in people being insulted, humiliated, offended, harassed and intimidated—all of those things.

I want to share with you a meeting that I had last Sunday. It was with a Muslim women's group who were having a morning tea to bring their community together. The name of their event and their theme for the morning was 'Working towards unity in today's hostile political climate', because they recognise what has changed for them as Muslim Australians over the last couple of years. They told me some horrific stories. They mostly wanted to celebrate their diversity. They mostly wanted to come together and focus on the positives, and a positive way forward. But it was inevitable that they shared what had been happening to them, their experiences—being yelled at on the streets, or abused on public transport, just for being identifiably Muslim; women wearing hijabs being told, 'Go back to where you came from,' and being vilified just because of who they are. They told me of a woman wearing a niqab, which is the face covering that shows only the eyes, driving a car with the window wound down, and having a cup of hot coffee thrown at her, scalding her face. They told me of another woman, also a niqabi, walking down the street with her two-year-old in a pram and having the pram kicked over. They told me of their young children coming home and saying, 'Why do people always say bad things about Muslims? Why can't they say good things about us? We are good people, aren't we?' And they are good people.

This is the climate in which this debate is occurring, and any weakening of our Racial Discrimination Act is going to give the green light—it is already giving the green light—to the unleashing of more racism. This weakening that is going on has consequences, and there is no doubt that replacing 'offend', 'insult' and 'humiliate' in the Racial Discrimination Act with 'harassing or intimidating' is giving people licence to say more.

Even if the legislation, once it finally goes to court hearings, does not change the situation on the street, it is giving people that sense, 'We can now be more racist than we felt we could be before.' It is encouraging those racist attitudes. It is encouraging that sense of difference. It is encouraging people to feel that difference and to feel that it is okay to offend people. The argument being put by the government is that not being able to 'offend', 'insult' or 'humiliate' is an attack on free speech. Simply put, it is not.

The argument that is being put up that this is an attack on free speech—that people should be able to offend and insult and humiliate and just not be able to harass or intimidate—is a complete straw man. I think almost everybody in this chamber would have agreed with the arguments put by Senator Fawcett before in defence of free speech, but free speech is not under attack with the current wording of the Racial Discrimination Act. Senator Leyonhjelm said that what he said would have violated section 18C, and he was going to go outside and say it and see whether it would have got through.

Firstly, under the existing provisions of 18C, it is not just somebody taking offence that would enable a successful case. Justice Kiefel, who is now the Chief Justice of the High Court, in the Cairns Post case said that in order to be successful those words had to have 'profound and serious effects, not to be likened to mere slights'. So it is not just, 'Oh, I'm offended,' and therefore people cannot say that, because they are going to be prosecuted in a court case. No, it has to be something that is causing 'profound and serious effects, not to be likened to mere slights'.

The other thing that we never hear from the government is the provisions of section 18D. Sections 18C and 18D operate together. So, for example, everything that Senator Leyonhjelm said in his contribution earlier on absolutely would have been covered by the provisions of 18D. I want to read out the provisions of 18D in their entirety because I think people need to be reminded that we have 18C that says we are not allowed to 'offend', 'insult' or 'humiliate', but 18D says:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest—

Senator Leyonhjelm—

or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Clearly, 18D covers off any reasonable expression. It is not just a case of offending somebody and then being hauled up before the courts.

The case that is being used as a cause celebre is that of Bill Leak. It is absolutely clear that the 18D defence would have cleared Bill Leak of any prosecution. It was 'the performance, exhibition or distribution of an artistic work', first of all. It was making a fair comment in a matter of public interest. Section 18D, a hundred times over, would have let Bill Leak off. It would not have been a case that would have held up. In fact, we have been told that Gillian Triggs, of the Human Rights Commission, has said that they wanted an 18D defence to be put forward as a defence because that would have meant, very clearly, that the whole case would have been able to be very quickly dismissed.

Finally, in having this debate tonight, I really urge the government and I really urge the crossbench to be thinking about the impacts that this debate is having on people who are just trying to live their lives in a dignified way, free of harassment. I ask people to be listening to the voices of multicultural Australia, listening to the Aboriginal and Torres Strait Islander people and listening to the peak bodies representing our diverse Australian community. As a parliament we do not need to capitulate to the far right of the government backbench. We have a Prime Minister who has capitulated to his far right, but we as a parliament do not need to do that.

We need to be listening to our diverse society. We need to be hearing what they are saying, hearing about the racist attacks that are on the rise in Australia. We need to be doing everything we can to put them to bed and to say that we want to celebrate multicultural Australia. We want to be reducing racism. We want people to be able to live their lives free of insults, offence, humiliation and harassment, to be able to get on with their lives, to feel valued and to feel at one as part of the Australian community. These proposed changes to the Racial Discrimination Act are the exact opposite of what we need to be doing. We need to be encouraging our diversity, not attacking it.

Helen Polley (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Aged Care) Share this | Link to this | Hansard source

I rise to speak on the Human Rights Legislation Amendment Bill 2017. The bill seeks to change the wording of section 18C of the Racial Discrimination Act 1975 by removing the words 'offend', insult' and 'humiliate' and replacing them with 'harass'. Let me be clear that the changes in this bill will weaken protection for Australians against racial hate speech. We will not support this or any other change to 18C. Labor's position is rock solid.

We also have issues with a number of changes this bill will make to the complaints-handling process of the Australian Human Rights Commission. These have been poorly drafted and rushed through without adequate consultation. I note that we are open to changes to the complaints-handling processes of the Human Rights Commission, but we cannot and will not support the changes in this bill as they stand.

Earlier this week, Senator Brandis again referred to the Turnbull government's changes as a 'strengthening' of 18C. I know I am not the only one scratching my head, wondering how on earth the law will be strengthened by removing 'insult', 'offend' and 'humiliate' from section 18C of the Racial Discrimination Act. Our Prime Minister says, 'This is the language that will do the job,' because, apparently, 'offend', 'insult' and 'humiliate' do not do the job.

This out-of-touch government also claims that these changes will allow more freedom of speech. Let me make one thing clear: there is no freedom of speech crisis here in Australia—none whatsoever. What I really want to know is what the Prime Minister wants people to be able to say that they cannot now under the current law. It is a very simple question but not one that has yet been answered. No matter which way you look at the government's changes, they guarantee there will be more racist hate speech in Australia than there is now. After all, how can it be about freedom of speech unless it is going to allow more things to be said?

I want to turn my attention to the Senate inquiry. I actually was not part of that inquiry, but, if the government were really trying to strengthen the act, Aboriginal Legal Service would not have been barred from the Senate inquiry into the proposed changes last Friday. The exclusion of the Aboriginal Legal Service from Friday's hearings into the proposed changes to section 18C was disgusting and speaks volumes about this government. The government have exposed themselves as complete and utter hypocrites on the subject of free speech. Instead of standing with multicultural Australia, they have sided with bigots.

The proposal to weaken section 18C has been rejected nationally and by our multicultural communities. Replacing the words 'offend' and 'insult' with 'harass' is not harmless change. On Sky News on Tuesday night Andrew Bolt stated that a person would have to be insulted on the basis of their race five times before they would fall under the government's definition of 'harassment'. Does the Prime Minister agree with Mr Bolt's definition of harassment under the proposed changes to section 18C? If he does not, what is his own definition? The wordsmith on the other side of this place, Senator Brandis, has said that 'harass' means 'to bother'. How is this not weakening of the laws?

This may not be a real issue for those opposite, but it is a very real issue for international students who are being heckled and abused on their way home, the woman on the train or the bus being racially abused as she rides home from work or the taxi driver who was racially abused from the back seat by his passenger because of the colour of his skin. It is easy for those on the opposite side to belittle a protection they never need. It is easy to dismiss a hurt they have never felt.

I personally was very fortunate in my upbringing in Tasmania because I never experienced racism at all. My father survived 3½ years as a prisoner of the Japanese in the Second World War. He survived the Burma Railway and Changi, and he taught us children to be tolerant. He in no way had any racist undertones toward anyone. That is how I was brought up. Unfortunately, when I got married—my husband was born in Germany—our children, who are white, everyday kids experienced firsthand the racist comments in relation to their heritage and their father's heritage. To go to school and be told 'Your father murders people,' 'Your father kills people,' 'Why does he do that?' 'Because he's a Nazi,' is something we should not tolerate in this country. We should not tolerate it now and we certainly should not be weakening the laws to allow people to feel that they can say what they want and that there are no ramifications for what they say.

We were all elected here to be the voice of people who need our help. Words hurt, and this is a very real issue for people who are not getting their voices heard by those on the opposite side. Each and every passing week, this government prove themselves to be more out of touch with the people they represent. It is the one thing they are good at. You cannot make this sort of stuff up. Last Tuesday was the International Day for the Elimination of Racial Discrimination, and in every school it was Harmony Day, but at Parliament House it was the day the government announced it wanted to change the law to give permission for more racist hate speech. Then, to add to the government's absurdity over this, we had Senator Brandis saying that these changes to 18C defended the free speech that the Anzacs fought for. I do not believe that is an accurate reflection at all.

Now we are standing here because the government is seeking to rush through these changes without any proper consultation. I ask again: how out of touch does this government have to get? Former Prime Minister John Howard has even joined the debate, strongly supporting the government's planned amendments. Mr Howard said that these changes would reverse more than two decades of what he called 'pointless Labor legislation'. Just last week Mr Christopher Pyne was on radio, saying that section 18C had been twisted and no longer had any credibility. Let me ask you: how is a law that halts racial offence, insults and humiliation pointless? What does that say about this government? What does that say to young people? What does it say to the people who make up this country? What does it say to the multicultural communities in this country?

The government's changes will weaken protection against racial hate speech and racial discrimination—protection that has served Australians well for more than 20 years. We won the fight to protect Australia's laws against racial discrimination in 2014 and we will do it again. I think the government is just obsessed with 18C, and it is so unnecessary and so unfounded. Even the Racial Discrimination Commissioner said there is absolutely no case to make changes to prohibition of speech that insults, offends, humiliates or intimidates a person based on race. How on earth is this country going to be improved by more racial hatred? The answer is very simple: it is not—not today and certainly not tomorrow.

Mr Turnbull says we have a freedom of speech crisis in this country, but we do not. What we do have is a health crisis, childcare reforms which need to be fixed and 1.13 million people underemployed. We have an aged-care workforce crisis. These are the real issues that people in the community are concerned about. They are concerned about the cuts to penalty rates. They are concerned about the cuts to family payments. These are the issues people are talking about.

The government's changes to section 18C will not create new jobs or put an extra nurse in the ward or help any pensioners. They will not save penalty rates or provide the people of Tasmania with new infrastructure, and they certainly will not improve the lives of Tasmanian families. The Liberal Party's obsession with this shows everyone just how out of touch they really are. The Prime Minister can talk about free speech and political correctness all he likes, but the proposed changes to 18C have nothing to do with either of these things. The fact that I am standing here today, fighting to stop the government's changes that weaken protection against racial hate speech, is all you need to know about this government. How can they come to the conclusion that it would be a good idea to remove 'insult', 'offend' and 'humiliate' from the law? I do not know and I do not understand. What sort of government says that racial humiliation, offence and insults are okay, but harassment is not okay? Racial hate speech is real, it is demoralising and it hurts, and the last thing we should do is change the laws to allow more of it

Labor will oppose any attempts to weaken protection for Australians against racial hate speech. We will not support any changes to section 18C of this bill as it stands, and I urge those on the crossbench to vote against these changes.

Malarndirri McCarthy (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak against the Human Rights Legislation Amendment Bill 2017. We have much more important business before the Senate. We have families being hit by cuts to penalty rates and there is the debacle of the social security system, yet we are spending all this time working out how we can allow people to make offensive, insulting and humiliating comments, without any comeback. I heard people here today say this debate is just about allowing them to have an opinion. Of course, everyone has a right to an opinion. This is not what we are debating here, and to pretend that we are is just disingenuous.

This debate is about being allowed to say hateful, hurtful comments based on another person's race. Is your opinion that I am somehow lesser than you because of my race, that I and my culture are not as deserving of respect as yours? This debate is about saying you have no right to take offence when people make these comments. But people have every right to take offence at this. You talk about freedoms and rights. Yes, people do have a right to take offence when hurtful, hateful comments are made to them because of their race. Australia is not colourblind, but in this bill we want to turn a blind eye to racism.

Racism is Australia's Achilles heel, our weak spot, our touchy national blister. I will not stand here and be lectured about racism and prejudice. I know what racism is and what impact it has and what personal damage it can cause. You only have to ask Adam Goodes or Nicky Winmar. Ask Michael Long or Senator Pat Dodson or former Senator Nova Peris or any of the multicultural leaders who were here in the parliament this week, consistently lobbying against this bill. They know what racism is. We live it every single day.

You cannot know what it is like to live with racism until it is a part of your everyday reality. Only then do you really know. I have heard so many members in this place express that it is something they do not experience. I certainly do not like standing here talking about racism, and I wish we were past that, but we are not. In my travels both as a member of parliament and as a journalist I have witnessed acts of racism against others. I have witnessed verbal assaults and seen a black woman refused a key to the toilets and told hurtful and hateful things about her because of the colour of her skin. I have seen a football team that wins a grand final for their south Arnhem Land team, only to be told they cannot celebrate in a local nearby pub because of the colour of their skin. I have received and continue to receive at various times racist comments and behaviour as a result of the colour of my skin.

From the get-go, white colonialists regarded first nations people as inferior beings and thought it was okay to denigrate us and take our lands and, in many cases, take our lives. This month, 112 years ago, Jack Patten was born, a man regarded as one of the founders of modern Aboriginal political action. He spent his life fighting for equal rights and opportunities for Aboriginal people. He spent his life believing in a better Australia, a more united Australia, a harmonious Australia and a just Australia. He fought against all the injustices, and this included the right not to be vilified and regarded as lesser because of race. In a speech delivered at the 1938 Day of Mourning and protest, Jack Patten said:

Our children on the Government stations are badly fed and poorly educated. The result is that when they go out into life, they feel inferior to white people.

This is not a matter of race, this is a matter of education and opportunity.

This is why we ask for a better education and better opportunity for our people.

We say that it is a disgrace to Australia's name that our people should be handicapped by undernourishment and poor education, and then blamed for being backward.

Jack saw clearly that Indigenous Australians were denied opportunities yet somehow that was their fault and that made it okay to denigrate people of a different colour.

We only need to read government sanctioned reports like the Bringing them home report, released 20 years ago this year, which tells story after story of the suffering of children removed from their families because of the colour of their skin and often that left behind an even deeper and tragic legacy of intergenerational trauma for them and their descendants. Sadly, this type of racist view still exists today. It festers on in social media and in institutionalised racism. We heard recent calls from congress for a broader look at such racism in our health and prison systems.

When I first stood in the Senate and addressed each of you in my maiden speech I touched on the real harm that racism and racist commentary can do. We need only be reminded of the hateful and hurtful commentary on race that ended the stellar career of AFL hero and Swans legend Adam Goodes. Then there is the work of Michael Long, who back in 1995 make a stand against racial abuse after an on-field incident. He is one of the pioneers behind the racial abuse code adopted by the AFL in the 1990s. Are we asking to weaken this? Is it infringing on the rights of footballers? Are they just expressing an opinion? Of course we are not.

I wish I could believe that there are no racists in Australia, but certainly my personal experience, my family's experience and that of those around me informs my reality. Being the target of racist, hateful comments and actions is deeply hurtful and deeply distressing and causes great harm. It causes insult, causes offence and causes humiliation. From a cultural perspective, to be incredibly humiliated can bring even more tragic circumstances. I know this as a fact. I know this because this is how I feel when I am subject to these comments. And it is not just personal; institutional racism, as I said earlier, is very much alive and well. It may not be as visible, but it is there and people feel it.

In my time as a journalist my work was never constrained or diminished by section 18C. I worked for 20 years as a journalist across Australia. As a former journalist and now senator, I am a firm supporter of free speech, but free speech is not hate speech. Former Prime Minister Paul Keating said in his Redfern speech:

I think what we need to do is open our hearts a bit. All of us. Perhaps when we recognise what we have in common we will see the things which must be done—the practical things.

As I said, I do not really want to be talking about the hateful reality of racism. We have spent so much unnecessary time on trying to remove a very important piece of legislation so unnecessarily. I want to be here talking about the many things that must be done—the work that needs to be done—to close the gap, to build a strong economy in north Australia, to ensure every Australian child has the opportunity to grow up safe, healthy and with access to quality education and to ensure that women have a right to safety across this beautiful country of ours. So let us open our hearts just a bit and think about what these changes to section 18C mean and the really deep potential impact on the lives of Australians.

In closing I would like to quote again Paul Keating's Redfern speech. He said:

We failed to ask—how would I feel if this were done to me? As a consequence, we failed to see that what we were doing degraded all of us.

This is what racism and hate speech do. Weakening laws against it degrades us as a people and a country.

Patrick Dodson (WA, Australian Labor Party) Share this | Link to this | Hansard source

  I rise to speak on the Human Rights Legislation Amendment Bill 2017. We all know that in this place any law can always be changed and improved. The changes to section 18C of the Racial Discrimination Act 1975 proposed by the government weaken the protections for Australians against racial hate speech and racial discrimination. Aboriginal and Torres Strait Islander organisations and people have had no opportunity to comment upon the changes proposed in the bill. For reasons beyond my understanding, the Aboriginal Legal Service was not allowed to appear at last Friday's Senate Legal and Constitutional Affairs Legislation Committee hearing on the draft bill and the spokesperson for FECCA was not allowed to finish their opening statement by the chair of the Senate committee. But this should not be too surprising, given that these changes were insultingly announced on Harmony Day, the International Day for the Elimination of Racial Discrimination.

The Aboriginal Legal Service and other organisations may have contributed to the Parliamentary Joint Committee on Human Rights inquiry report, but that is not the point. They were denied an opportunity to comment on the text of the new bill and the inclusion of 'harass' instead of 'insult, offend, humiliate'. They were denied the opportunity to comment on the introduction of 'a reasonable member of the Australian community' as the objective standard for determining a breach of the section.

This bill is not about freedom of speech; this bill is a display of contempt for Aboriginal Australians and members of multicultural communities. The Bolt, QUT and Leak matters all involved Aboriginal people, so Aboriginal organisations and individuals should have been consulted. Their exclusion from the process is disgraceful.

Section 18C, as it is currently drafted, is not 'an inappropriate mechanism of political censorship used to stop people from expressing opinion', as noted by Senator Brandis in his second reading speech. There is certainly scope to review the complaints process through the Australian Human Rights Commission, provided there are not additional delays, costs and impediments to justice. But the wording of 18C has served Australians well for more than 20 years. Section 18C is read in conjunction with section 18D. It ensures that freedom of speech is not unduly restricted. Neither the QUT case nor the Leak case provides a sound basis for amending section 18C. These are just two cases in a catalogue of 18C cases spanning over 20 years.

If we consider the Bolt case, it will be recalled that the articles he wrote were held to be defamatory because they 'contained errors of fact, distortions of the truth and inflammatory and provocative language'. When the articles were originally published, the public sentiments directed at Aboriginal people were hateful and vulgar. One of Bolt's readers responded to his article by writing in the online comments section: 'If only there were nerve gas chambers back in 1788.' Andrew Bolt's latest claim is that a person will have to be insulted on the basis of their race five times before they would fall under the government's definition of harassment. We know that in another case the court has interpreted 18C so that it only applies to 'profound and serious effects, not to be likened to mere slights'. Amending section 18C will not promote freedom of speech—it will promote racial hate speech and racial discrimination.

Seeking to change section 18C of the Racial Discrimination Act illustrates that the Australian government is not genuinely committed to Closing the Gap. In the survey 'Localities Embracing and Accepting Diversity (LEAD) Program 2010-2011' it was noted that: 'The link between poor physical health and mental health and self-reported perceptions or experiences of racism has been well documented. Racist attacks can cause injury and psychological distress. The targets of racism are at greater risk of developing a range of mental health problems such as anxiety and depression, which are contributing factors to the health gap between Australia's First Peoples and other Australians.'

These are the real impacts of racism. If the new test of racial hate speech and racial discrimination is to be put to the hypothetical 'reasonable member of the Australian community', how do we gauge the input of fellow Australians from diverse cultures and backgrounds? The people who are pushing to amend section 18C have absolutely no idea about the toll of racism. Senator Hanson spoke of an incident of reverse racism yesterday and the incident is indeed unfortunate. But it does not illustrate that she understands and has felt the devastating damage and cost of sustained lifelong racism. Senator Hanson, and the other senators obsessed with amending 18C, have never known what it is like to grow up as 'other' in an exclusive society.

Senator Hanson also says that it will come down to the pub test. What bar will that be in—the white bar or the black bar? This type of unlegislated segregation still exists around Australia. Everyday Australians are not talking about changes to 18C at the pub this weekend. They are talking about when work will pick up again, how hard it is to buy a house in their town or suburb, or the future of their children—or they may be just talking about the footy or the cricket. This ideological campaign of certain members of the government and crossbench has no value to everyday Australians, whether they be Indigenous Australians, migrants or descendants of the First Fleet. This campaign is bereft of any tangible benefits because Australians already have freedom of speech in this country.

(Quorum formed)

James McGrath (Queensland, Liberal National Party, Assistant Minister to the Prime Minister) Share this | Link to this | Hansard source

It gives me great pleasure to rise tonight to speak on reforms to section 18C of the Racial Discrimination Act because what we are trying to do with these reforms tonight is continue in the fight against tyranny. I have said before in this chamber that we are at the end of the second hundred-years war, and this second hundred-years war is the war against tyranny. It started in the Great War with an expansionist Germany. It continued through fascism arising in Germany and continued with communism as it enslaved the peoples of Russia and Eastern Europe. Our fight against tyranny paused in 1989 with the fall of the Berlin Wall, when the freedoms that were fought for were given to the people who were formerly under the yoke of the Soviet oppressors. It erupted again, sadly, in New York in 2001, when terrorists attacked the World Trade Center.

The components of this hundred-years war against tyranny that I want to talk about tonight I spoke about in my maiden speech. The first concerns governments restricting freedom of speech and freedom of association and how leftists delegitimise all views other than their own. How we see 18C operate is a classic demonstration of the consequences of the government back in 1995 bringing in changes to the Racial Discrimination Act that have had the effect of shutting down freedom of speech. We also see with the 18C debate that anyone who believes in freedom of speech is attacked, marginalised and portrayed as some hard-right fighter by those on the left. That is disappointing because, when it comes to this hundred-years war against tyranny, the principles which have underpinned this fight have been freedom of speech and freedom of association.

With 18C, who are the victims of this nefarious section of a piece legislation? Let's talk about the victims of 18C. One was a journalist—let's try and stop a journalist from expressing their views. Andrew Bolt probably is not my biggest fan. In fact, you could probably say he and I have what you would call a—

Scott Ryan (Victoria, Liberal Party, Special Minister of State) Share this | Link to this | Hansard source

Why!

James McGrath (Queensland, Liberal National Party, Assistant Minister to the Prime Minister) Share this | Link to this | Hansard source

It disappoints me because I actually do like Andrew. Andrew, I am sorry that you are cranky with me at the moment. How Andrew was treated with 18C was a disgrace. It was his case that first shone a light onto how 18C was going to be used by the left to delegitimise those with different views and stop them from expressing them. A journalist—that is who 18C has been used against. Then we had some students from Queensland—some normal university students who went to the Queensland University of Technology, a university that I am actually an alumnus of. One of them, it is alleged, made a throwaway comment, though it has never been proved that this person did make this comment. What happened to these students? Their lives have all but been destroyed by how 18C was used against them. It was used to turn this into a modern day witch-hunt against them. But, of course, the poor students did not even know about 18C and the Human Rights Commission, this Stasi-like Star Chamber. A so-called investigation went on for months, if not years, into their alleged conduct. These poor students have had to face excessive legal bills and their careers have probably been destroyed by the Human Rights Commission and by the fact that someone was able to make a complaint against them under 18c because this person felt offended by something that one of them may or may not have said. That is the problem with 18C: it stops people from expressing their views.

The third person I want to talk about was a cartoonist for one of our newspapers—an artist, someone who painted and drew. 18C was used against Bill Leak, an artist who, sadly, passed away. What type of society or country are we becoming when a journalist, some students and an artist are being dragged before a Stasi-like Star Chamber, not because they have committed hate crimes but because someone out there may have felt offended by something they said?

It is offensive on so many levels that the left are using freedom of speech to effectively criminalise those people with whom they disagree. This is the challenge that is facing Australia at the moment. We have seen a revitalised and revised left who are very excited by Jeremy Corbyn because he is doing so well in the United Kingdom and very excited by Bernie Sanders because he did so well in America, and what they understand is that they can use political correctness to stop those who have different views from expressing them. But it gets worse than that: we have seen the President of the Australian Council of Trade Unions say that she is going to treat the law like a smorgasbord—she will only obey the laws that she agrees with, so any laws that she disagrees with she will quite happily go and break.

Australia is based on certain pillars—freedom of speech, freedom of association and the rule of law. We are seeing—with this attack on those freedoms, through the use of 18C or how the modern union movement see the law not as something to be obeyed but as something to be disobeyed—how the modern Left think, and that is a real problem.

We have already seen this week a member of the Labor Party saying that they wish to see 18C extended—even though it is to do with racial discrimination—to include a similar provision that deals with religion. Suddenly, you cannot have discussions about religion in case people are offended. Is this modern multicultural Australia where we cannot talk about religion, where we cannot talk about issues that impact on modern society? Because the true test of a tolerant, inclusive society that believes in freedom of speech is how freedom of speech is treated and, by that, the Left only believe in freedom of speech with which they agree. Views that they disagree with, they do not believe should be expressed and they do not believe in that freedom of speech. So, if we allow the Left to continue with this tirade against freedoms, we will end up on that slippery slope—I think we are on it at the moment—where people are afraid to speak their views, and that is a problem and that is dangerous for Australia.

No-one supports racism, and it is offensive of the leftists, who snigger and are snide, to imply that, because we believe in freedom of speech, somehow we are de facto racists or supporters of racism. That is incredibly offensive.

It is those of us who believe in freedom of speech who understand that, when people express views that may be racist, the best way to deal with it is not by using the police to arrest people and lock them up because they have expressed views with which you disagree. The best way, if you are upset that someone has said something that you are offended by, is to call them out. The problem with 18C and this legislation is that the Left presume that all Australians are a bunch of bigots, a bunch of redneck racists and that only the Left—the Labor Party and the Greens—can protect Australians from themselves. If it weren't for them, there would be lynch mobs running around this country hanging people off lampposts, which is incredibly offensive to those of us who believe in freedom of speech.

If someone does say something racist, you call them out on it. You do the classic Australian thing: you go, 'Hang on. Don't say that. That's racist.' And you will find that that person will stop saying that. But, if we go down the path of 18C where we have a Stasi-like Star Chamber where journalists, artists and students are dragged before, effectively, secret inquiries determining whether someone could have been offended by a comment that someone may have made, is this modern Australia?

It is important that, when we come to freedom of speech, we consider that of course there are defences. If I go back to my rusty old days as a quite average law student, I think it was Lord Denning who said that freedom of speech is limited in terms of a person shouting out—the man on the Clapham omnibus—'Fire! in a crowded theatre. If people feel they may be libelled, there are mechanisms through the courts that people can take.

The changes that we are proposing actually strengthen the provisions of the Racial Discrimination Act, because we are concerned that the subjective test of being offended is being used to stop people from expressing their points of views. We want to change that test and shift it from what a subjective member of a particular class of persons may feel to what an objective member of the Australian community may feel. This is so important because this shows the difference between the Left and the Right.

We believe in common sense, common decency and the common purpose of the Australian people. We understand that, when it comes to a test of when someone has said something that may be racially tinged, shifting from a test based on the subjective view of being offended to an objective view is a better way, a safer way and a more reasonable way to make sure that those who engage in racist conduct are properly judged. That is not how it is at the moment where 18C is used as a de facto police force to stop journalists, artists and university students from expressing points of view.

We think the changes that we are proposing to section 18C of the Racial Discrimination Act, which are to insert certain words and take out other words, will actually strengthen the act. But, as importantly, we also believe that the complaint-handling processes of the Human Rights Commission certainly need looking at. How the Human Rights Commission has operated is a concern to those of us who believe in the rule of law, which is probably only those of us on this side of the chamber. It is allowed to act as a Stasi-like star chamber to drag people in and to have investigations that go for months, if not years, and people's lives are all but destroyed by the actions of an unelected body that has in it a bunch of—let me be blunt—faceless bureaucrats or, in the alternative, attention-seeking bureaucrats who are using the Human Rights Commission as a vehicle to push their own view of what modern Australia should look like.

We on this side believe that the rule of law and natural justice were absent from, in particular, the treatment of those students—who were, I think from memory, just teenagers—by this body. I do not think the President of the Human Rights Commission has ever said sorry to these students. If it were not for these students being able to have some very able lawyers in Brisbane offering to help them pro bono to fight this insidious case that was brought against them, these poor students would probably have had to settle and sign all sorts of agreements because of the pressure that was put on them not only from a mental health perspective but also from financial impacts that were put upon them. Other students did settle for $5,000, and this shows how the Human Rights Commission was being used as some sort of fancy automatic teller machine in which complainants were able, because they were offended, to take a complaint to the Human Rights Commission and say that they were offended because someone said something that made them upset and they should get some money for it. That is wrong. It is wrong that students, an artist and a journalist were treated in such a manner by such a body because a section of an act of this parliament allowed this to happen.

What we are doing here is strengthening the provisions of 18C that concern people who may have been harassed or intimidated by racial vilification. But, as importantly, we are making sure that freedom of speech flies strong in Australia, because there is an attack from the left on freedom of speech and freedom of association in Australia. There is an attack from these leftist elites who believe that the Australian people do not have the foresight, the common sense or the thoughtfulness to make decisions on their own in relation to such matters and that government knows best, but especially a Stasi-like, Star Chamber element of government which can call people into windowless rooms and accuse them of the most heinous crimes based on the fact that someone is merely offended. This is Australia in 2017, and now is the time that we must make a stand for freedom of speech and freedom of association and defend the rule of law.

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

I too want to make a contribution to the debate on the Human Rights Legislation Amendment Bill 2017. I must admit at the outset, though, that I am one of those Australians who would say to you that, except for the fact that I am in this place and this debate is taking place here, my mind has not been occupied with this debate over my cornflakes or in the circle of people that I move in. I had over 100 guests at my home last weekend, as I celebrated my 35th birthday!

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

Order! Order!

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

Whilst we spoke about many things, including matters of politics, the question of 18C did not dominate any of the conversations. It is only as a result of it being elevated here in this place in a political sense that I have been caused to think through the issue.

My first experience with the question of free speech was in or about 1985, when I had the privilege of spending nine months in the United States, four of which were at the FBI Academy in Quantico, south of Washington, where I was occupied with looking at the issue of serial offenders on behalf of the police forces of Australia. In the course of that, I came across my first experience with an organisation called NAMBLA, the North American Man/Boy Love Association, which was a public group who occupied offices in both Washington and New York. They were funded, obviously, by demophiles and paedophiles. Through their right to exercise free speech, they were able to operate with impunity to advocate for sexual relationships between adults and children who were in puberty—so we are talking about young men. Indeed, they also made the case where young women were concerned. They were promoting that when a youth turns 10, 11 or 12—in that sort of time zone—they should be allowed to have carnal relations with an adult or another individual of an age not specified.

I have to tell you that, as a young fellow from Queensland, whilst I had not lived a sheltered life—I had by then been a detective for almost seven years—I found it abhorrent, so much so that I did a speech. International students were invited to do a speech in the auditorium on Wednesday nights before the movie. There were about 800 seats in the auditorium, and they were always occupied. I still have a copy of that speech where I spoke about freedom of speech. As far as I was concerned, I did not think that it extended to the NAMBLA organisation. As you might appreciate, the speech was provocative. Many of my fellow students at the academy decided to share their views with me, most of them very strongly in favour of freedom of speech, notwithstanding that they recognised the abhorrent nature of this particular organisation.

That was the first occasion in my life where I turned my mind to the subject of free speech. I came to understand this principle that I can violently disagree with almost everything that someone has to say, yet we in a free society have an obligation to fight for the right for them to say it in the first instance. I get the freedom-of-speech thing.

I have to say that, as I grew up and in my life's experiences generally—except for exceptions as a young student and the juvenile behaviour of some with their language—I have not been exposed heavily to events of racism, notwithstanding that I was an active police officer for 15 or 16 years. I suspect that has much to do with the fact that most of my service was in country and remote parts of my home state of Queensland. I have never lived in the city. I have always lived in regional parts of my home state and country areas. I have been largely associated with communities and with societies and active economies that have to do with rural affairs.

I had a lot of friends as I grew up who were young Aboriginal men. I married a girl from Barcaldine, where there is quite a significant Aboriginal population. In the many, many dozens of occasions that I was out there I had the privilege of meeting and becoming friends with many of the friends of my father-in-law. They were Aboriginal men with whom he had been droving and shearing—and I imagine that was your experience too, Senator Williams—over a long period of time. There was often banter. It was banter that would, I think, attract the attention of the existing legislation prima facie, but it was not banter that offended. It is the subjective nature. I have often been referred to as fat and ugly. It has been frequent. Due to the fact that I am fat and ugly, it was difficult for me to take offence to the notation, but there may be others who would.

What attracted me, as I considered the circumstances of these changes in the legislation, was this subjective test. No matter what else we might think about these changes being proposed by our government, we are going to at least transition to a more objective test, the test of reasonableness, which is a word not foreign to the judicial system. It is used as a standard to validate in criminal cases. Here is an area where for 16 years I had an obligation to present evidence to courts to prove beyond reasonable doubt any fact that I wanted to rely upon as an element of a charge of a prosecution, so I am very familiar with this question of 'reasonable'.

That goes to the very heart of why we have juries with 12 people. The courts will educate them in situ on what this term 'reasonable' means. The standard is, at least in our country, that all 12 of them have to agree after they have each individually—separately from each other—applied their test of reasonableness. It is not just a case that seven find that a reasonable proposition and five do not; all 12 of them have to find that. This process, whilst not perfect, has served this nation and its criminal justice system well, and indeed it is in most Western societies. It is a system that we inherited from the mother country, and it still applies there.

There is a lovely old saying that an empty Coke bottle to one person is an empty Coke bottle, but to the other person it is 5c. That is what subjectivity does to somebody. There is no room for that, as far as I am concerned, in a judicial system, in this case.

Imagine if we were to get a bit sensitive in this place. There would be complaints between the hours of 2 pm and 3 pm most days. I think that, on an active day when I am on my game, there could be 30 to 50 complaints lodged about me, and I am not one of the more active offenders.

Senator Williams interjecting—

No, I am quite conservative. Sometimes, Senator Williams, I do get a bit excited, I will admit, but there are others. So you could leave here after question time with a couple of hundred complaints under this act, if we were to deal with 'insult and offend', and apply a subjective test.

The thing that did move me towards these changes—there have been a couple of fairly prominent cases mentioned, and I will be at risk of repeating some of the observations that have been made—was the Cindy Prior case, with the three young students from QUT. Without going to the substantive allegations, which on face value seem to me, even though I have said I have limited exposure to racism, to have been on the extremely low end of the scale, even in my assessment of things. What we saw was that the process in itself became a punishment. Not only that, the process offended the principles of natural justice. These people were under investigation. There were active things happening about them, that were to lead to them finding themselves in a civil suit, and they were not even advised. What makes it even more insidious is that some of the activities were funded by the state. Some of these activities were activities of the Human Rights Commission, which is funded by this very place. I could not think of anything more offensive than that.

When they did become engaged and became aware—I heard Senator McGrath mention that they were represented on a pro bono basis. I have seen estimates from people who think that, even in their circumstances, they would have been confronted with legal fees of about $10,000. I must admit, when I first read that I thought it was light on. I am yet to have an engagement with a lawyer for sub $10,000, I can tell you, and I have needed them in some fairly minor circumstances myself. Let us add this up. If these three students had not had pro bono representation there is a cost of $30,000 to somebody, perhaps even the state—it is state versus the state if someone has attracted legal aid and the Human Rights Commission is on the other side. That is like punching yourself, to be honest. Then these young people, I understand, settled for $5,000. So we are now at $45,000. This is not just about the money, but this story really shows how unreasonable the process is, how impotent the process is—in fact I think the word 'silly' can be applied to it.

I have had my time at estimates with the Human Rights Commission. By jiminy, that is like trying to pull a hair out of your ear with a pair of canvas garden gloves on. You cannot get any information out of that mob. Only the good Lord knows how much they would have spent on the process, but it would not have been cheap. So I think we are well over $100,000 where some students commented on what they saw as evidence of segregation. Indeed, I was astonished to find there are these segregated areas where you need to declare, in this case, your ethnicity, your nationality or that you are Indigenous before you can enter into the space. That place used to be a bar that was reversed. They could not walk in there now. We could not walk in there. This is just stupidity on skates.

I am not going to go over the Bill Leak and Andrew Bolt cases, but I think it was right for those who hold a passion in this place to visit this issue and to revisit it. There have been some people—Mr Acting Deputy President Bernardi, you are one of them—who have championed in this place for a considerable amount of time.

I heard a contribution from one in the Labor Party talking about groundhog day, about how members of our side of the parliament have persisted in this to bring this to something, to bring this to a test, to bring this to a vote in this place. Sometimes in this place I feel like I am in a parallel universe. I was here not three days ago listening to a debate where these people were supporting the head of the ACTU, who said, 'Protest! Be active! Activate yourself and go against laws you do not agree with. Continue! Get the right to vote for women. Get the right for negro citizens in the United States to join us in a bar or on the bus. Fight for it! Continue to fight!' If as a legislator you do not have the courage to continue to fight and test the question around important issues such as this, you should pack your bags and go home. I think part of Senator McGrath's message was that there are people in this place—I could name them, alphabetically—who really fire up in protest when a statement is made, an idea is advanced, a debate is had or a question is tested and they do not like the potential answer. By jiminy, it gets their bloody hackles up. That is where some of my best fun comes. I know exactly what button to push on some of these people, and they will light up like a Christmas tree.

I think that the Leak case, the QUT case and the Andrew Bolt case have magnified the interest in this matter. Without breaching the confidentiality of our joint party room, I have heard passionate arguments on both sides of this question. We have members who live in communities where a high number of ethnic people live, and they hold a strong view about this.

I could talk for a long time on this subject, now that I have taken interest in it, but let me close by saying this. These changes are going to mean that there needs to be active behaviour—not a throwaway line, not a sledge on a football field, not a schoolyard tussle between two kids where some unfortunate statements are made; these changes create a need for activity—for you to be exposed to prosecution under this legislation. The legislation also deals with the process, which is important. I said earlier that the process itself was a punishment. If you were one of those students, it has taken 18 months of your life and will cause reputational damage long after you have left your university. Thirty years later, when your name comes up in conversation, you will not be remembered for your intellect, your power as an athlete, your student politics behaviour or your contributions to the newsletter; you will be remembered as one of the people who was prosecuted on those flimsy circumstances. I think this legislation is important, now that I have had time to consider it. It is legislation I can recommend that my colleagues support in this place.

Scott Ryan (Victoria, Liberal Party, Special Minister of State) Share this | Link to this | Hansard source

It is a privilege to be able to make a short contribution to this debate on the Human Rights Legislation Amendment Bill 2017. I do not often speak on legislation that I am not carrying or that is outside the portfolio I represent, but I have spoken on this particular issue on a number of occasions in this chamber as it has arisen over the last few years. It is an issue strongly felt by me and by many of my colleagues. I will not repeat what a number of my colleagues have gone through earlier this evening with respect to specific examples, but there are some issues and some perspectives I would like to highlight.

I have long said that I am a first amendment type of person. I am not necessarily someone who is in favour of a bill of rights, but I have always said that I would not have a problem if there were a constitutional restriction on parliament passing laws abridging freedom of speech. A liberal democracy depends on the free flow of ideas. A liberal democracy depends on that being sometimes ferocious, sometimes unpleasant, sometimes difficult, but the flow and debate are critical to achieving some of the changes that opponents of this particular bill today are actually lauding in their speeches. Speech in a liberal democracy cannot be the product of a licence by the state. We have an inherited tradition in this country—founded following the revolution in England and the changes of the 18th century—that says that speech is free unless there is an overwhelming reason for the government to legislate or regulate against it. My colleague Senator McGrath earlier referred to the famous example of not being able to shout, 'Fire,' in a crowded theatre.

But underpinning the arguments put forward by those opposite who seek to license speech—and, when they were in government, as I will highlight, they floated proposals to license speech and proposals to regulate the media in a way unprecedented in this country, outside wartime—is the philosophy that somehow it is up to this parliament to grant citizens the right to what they can and cannot say, to define acceptability. Where there is an immediate risk to someone, where there is a threat of violence to another citizen, where there is a threat to the safety of our citizens, no-one disagrees with that. But this law, as it stands at the moment, goes much further. I am surprised that the parties opposite, including the Greens—and some of their predecessors in the WA chapter of their party opposed this particular legislation in 1995 and indeed predicted some of the concerns that history since then has shown were true—now are so vehement in their support for a law that has proven itself to be flawed.

The last time this was debated in this chamber, there was an argument put that changing section 18C—and the changes put forward in this bill—somehow represented the grant of the right to be a bigot. I say to those opposite and those concerned about racism in Australia: look at our history. Our great, overwhelming success in establishing the world's most successful multicultural country happened, in the main, before this law came onto the statute books in 1995. We all have stories of family or friends or neighbours or growing up in our multicultural communities. All that success happened before there was a law that has proven itself to be so flawed. All that happened before those opposite took it upon themselves to say that it is up to this parliament to license appropriate and inappropriate speech.

But what I say also is that in this world, where technology has changed so much, the idea that we can license speech is flawed. I want speech to be free so that it can be repudiated. I want to be able to challenge the person who is racist or sexist. When there are those who would deny historic calamities like the Holocaust, I want to hear that argument so I can outline why they are wrong, why it is offensive and why it needs to be repudiated in the modern world. That is important, as we move away from historical events, even our own past, where not all events in Australian history are moments that we are proud of, but we are a product of them. Our success as a multicultural country—not being free from sin, not all having a halo—came before laws like this one that has dramatically impacted on the rights of people, albeit of a few, like that group of students from QUT. I am not trying to dismiss the idea that racism can hurt, but why is it that those opposite dismiss the accusation of state-endorsed racism and that what happened to those QUT students does not hurt them? Why is it that the process that they were put through, profoundly unfair as it was—no-one can defend it—where they were accused of being racist when they clearly were not, is somehow dismissed as not worthy of this parliament's consideration? I think that shows one-sidedness.

One of the arguments against this change, at its core, has also been that community leaders think that this is a bad law. Well, we are not a nation of tribes. We are not a nation defined by leaders of distinct communities. We are a nation of citizens. We are a nation where every individual opinion, every individual vote, matters; and where people are accountable for what they say and it can be repudiated or they can seek to persuade their fellow citizens. The fact that self-defined community leaders—or, indeed, those elected by some but not dominating the field, not able to claim the membership of every one of that group—might think this is a bad law is not an argument that means we should not be considering a legal change, when we have demonstrated some of the problems.

That leads to what is one of the most dangerous and, I think, one of the most offensive elements of one of the arguments used against this bill, which is that somehow certain people, because of the colour of their skin, their gender or their background, do not have the right to argue for a change to a law like this. That is the first step towards institutionalising the very racism, or the very sexism, that some of those opposite claim to oppose. I do not claim to have the experience of suffering direct racism. I cannot claim that experience. But those opposite should not say that, because I have not had that experience, my view is invalid and should be dismissed. That is the core of that argument. It is the cancer of identity politics eating away at Western civilisation, where who you are—a label assigned to you by someone else—is more important than the deeds you undertake or the words you utter.

This law has proven itself to be flawed. We have heard example after example, particularly that of the QUT students. As someone who made a small contribution to their legal fund, on a website, I say that when you have all these groups, many publicly funded—if not directly, then indirectly through access to tax deductibility status—who are able to assist complainants, how can we have a situation where thousands of dollars, let alone tens of thousands of dollars, can be accrued by people addressing a complaint that they may not have known about for a year and for which there is not the standard of evidence we would expect for someone to be subjected to a civil or criminal procedure. The process can be the punishment, and it is inappropriate for the burden and the hurdle to be so low that we can put our fellow citizens through that.—

The other aspect of this law that has posed a problem is that it can ban opinion. I refer here to the Bolt case—not that Mr Bolt has been fan of mine over recent weeks and months, I must add. But free speech matters, regardless of the proponent and regardless of what the opinion expressed may be, because it gives us an opportunity to repudiate it. The Bolt case led to the prohibition of the publication of an article of opinion.

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

It is still on their website.

Scott Ryan (Victoria, Liberal Party, Special Minister of State) Share this | Link to this | Hansard source

It is not on the News Limited website. Well, it was not the last time I looked, because I checked. That was an article of opinion. Do we want to get to the point where the publication of articles of opinion can be prohibited by a court? I think that is profoundly troubling, because the next step will be that other opinions are banned. The problem with that is that the opinions banned are not always going to be ones that the proponents of laws like this want to see banned.

Under the last Labor government, there was a proposal to dramatically expand, in effect, the grounds on which free speech could be limited brought forward by the then Attorney-General, Ms Roxon. There was a proposal brought forward by the then minister for communications, Senator Conroy, that proposed—for the first time, I think, outside wartime in this country's history—the regulation of newspapers, not just broadcast media, the big difference being that the rationale for regulation of broadcast media is the public ownership of the spectrum and the fact that it is limited in quantity. But that has never been applied to newspapers because there is no limit. The idea put forward that there would be a newspaper tsar that could make rulings and compel the production of certain things in newspapers that were imposed by the state puts a great deal more faith in bureaucracy than I think any of us should have when it comes to expressing opinions.

At the time, that was fought against very strongly by the then opposition, for the same reason that these laws are being proposed today. A law that has the effect of taking fellow citizens through a gruelling process in a profoundly unfair way—exposing them to public ridicule; to the opprobrium of being officially accused, with the stamp of a Commonwealth agency, of being racist; and to thousands of dollars of financial disadvantage, all in a process that does not meet the test of natural justice—is no way to treat our fellow citizens.

A law that sees the prohibition of the expression of an opinion in a major newspaper, offended though some might be—but this is a country that has historically valued free debate—is a law that is endangering the larger law it is part of. I am a strong supporter of the Racial Discrimination Act in principle: the Commonwealth should use a law to say all our citizens will be treated equally, regardless of their creed, colour or opinions. When I do citizenship ceremonies, particularly on Australia Day, I take pride in the fact that this is a country where, when someone takes the oath in good faith, they are as Australian as someone whose family has been here for six generations, like my family, or someone who was born here. There is no test other than a civic commitment to being an Australian.

But a law that allows the perspective of some to restrict the rights of another, particularly when it is so subjective, is a law that puts the Racial Discrimination Act, in my view, at risk of not maintaining the high degree of public support that it has. The Racial Discrimination Act is an important part of our legal settlement, but this particular aspect of it will cause it damage if it continues to be used increasingly in the way we have seen it used in recent years. I do not think that anyone would like that. I read about proposals to expand the grounds upon which speech can be limited or complaints can be made, through what is effectively a replica of the Court of Star Chamber in a modern sense, although without the power to fine or imprison but with the power to put people through a fairly gruelling legal process. That is going to endanger that important piece of legislation and the degree of public support for it.

There are certain laws where I think that the less contested they are in this place, the better, because they send a signal that they are something that all of the parliament and all the groups they represent across the country support. But we are now at the point where there is a genuine perspective from an increasing number of Australians that the law limiting speech on politically contentious opinions can be used as a weapon by one side of politics against another.

I have long opposed laws against blasphemy. I remember the action taken in, I think, the Supreme Court of Victoria against Andres Serrano's work of art—which I will not repeat the name of in the chamber because I think it is unparliamentary language. The court upheld that there was no modern law that could be used to suppress the publication of that work of art.

I do not like laws that censor. I do remember, when I was younger, reading and studying politics. It was not always my side of politics that opposed the abolition of censorship laws, but those who did oppose them I think were in the right.

Yet now, in areas that are much more politically contentious, in areas where we have confronting debates about issues where at least one side will use identity politics and talk about race or other issues as part of it, if you cannot have that debate freely and frankly, you will lead to a great deal of community conflict, and you will endanger the very strong public support we have for the Racial Discrimination Act. I do not think that is something that as a country we want to do.

These changes are entirely reasonable and entirely appropriate. In years gone past, I would have thought that, apart from the Greens in that corner, they would have been non-contentious for the Labor Party, which once did fight for speech, to remove censorship, and supported due process. Sadly, that does not appear to be the case on changing the words that have been outlined, particularly removing 'insult' and 'offend' and replacing them with 'harass'. I think that is an appropriate balance. I would personally probably go further, but I accept that historically I am on the harder edge of free speech. This is not a First Amendment country, as someone who supports these laws once put to me.

But this law strikes a balance that will protect the interests of those who are vulnerable. It will protect the institutions of those who support it so that it can still undertake the work that it needs to, but it will not do so by risking support for those laws by being seen to be ideologically charged or weaponised in a political context. There are many, many other debates that will become much more difficult in this country if this law is not changed. I hope the Senate sees fit to reflect the hard work by the Parliamentary Joint Committee on Human Rights and the work undertaken by the Attorney-General and others, over many years, to bring these changes forward and strike this balance.

David Bushby (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I rise also to contribute to the debate on the Human Rights Legislation Amendment Bill 2017. I will be the first person to rise in recognition of the advances so plainly manifest in all levels of equality and personal liberty in Western civilisation. No longer is gender, race, religion, creed or any other identifying personal characteristic a significant barrier to aspiring to the heights that one may set oneself in our Australian society.

I also recognise that some gaps still exist which may limit personal liberty and aspiration. It remains incumbent on all citizens and government to be vigilant in narrowing these gaps until they are no longer visible. However, the one area of diversity that is in risk of decline is diversity of opinion or, more precisely, the freedom to express such an opinion without fear of personal recriminations or, as we sadly see all too often, intellectual assault or even bullying of an individual by sections of our society who have disproportional capacity to complete these character assassinations.

In the proposed preface to George Orwell's seminal masterpiece Animal Farm, he wrote:

If liberty means anything at all it means the right to tell people what they do not want to hear.

I am not proposing that the government should embark on radical changes to the statute with regard to protections against discrimination, libel and human rights beyond those proposed in the bill that we are considering today. But I firmly believe that these laws should be appropriately administered to advance and protect the cause of personal liberty in the sense proposed by Orwell and more broadly and that this bill helps to achieve that outcome.

As Nelson Mandela said:

For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedoms of others.

Senators, we live in politically correct times. However, political correctness should never be used as a crutch to stifle the most basic freedom that underpins and underwrites our liberal democracy: freedom of speech. Freedom of speech is the fundamental freedom that provides the ultimate protection against tyranny and against the creeping loss of other rights and freedoms. It is hard to identify any nation that has moved from a free democratic society into an autocratic, tyrannical or dictatorial state without the right of freedom of speech first being encroached.

Freedom of speech ensures that those whose rights are infringed, those whose liberty is curtailed and those who are being victimised have the opportunity to speak out against the injustices being done to them and just as importantly, or even more importantly, allows others to speak up for them. In this place, we should be the exemplar of embracing freedom of speech.

I am sure that all senators support the rule of law, which in its simplest form means that individuals should be governed by generally applicable and publicly known laws and not by the arbitrary decisions of kings, presidents or bureaucrats. Such laws should protect the freedom of all individuals to pursue happiness in their own ways and should not aim at any particular result or outcome. The primary importance of the rule of law is the emphasis it places on certainty, generality and equality in the legal system and on an underlying reciprocity between the state and the citizen. Ultimately, the inherent prize delivered by the rule of law is that it protects citizens from tyranny in that the law is above the tyrant. It is also a key element in a working democracy in that it delivers freedom, which is the essence of democracy.

The most important aspect of the rule of law is freedom of speech. From freedom of speech flows all other freedoms. The ability to speak one's mind, to challenge the political orthodoxies of the time, to criticise the policies of the government without fear of recrimination by the state is the essential distinction between life in a free country and life in a dictatorship. US Supreme Court Justice Benjamin Cardozo, who served from 1932 to 1938, wrote of free speech that it is 'the matrix, the indispensable condition of nearly every other freedom'.

I acknowledge that in Australia decisions that are made from time to time that have the effect of restricting freedom of speech are motivated often if not always only by the best of intentions and not by any sinister agenda to deliver tyrannical outcomes. No doubt the motivations behind the enactment of our current human rights legislation were genuinely well intended, seeking to provide real, needed and appropriate protections against racist actions by some that would cause harm to others. But just because the motivations were pure and the outcomes that the actions seek to deliver are desirable does not mean that the vehicle used to seek to deliver those outcomes is the right one or the perfect one.

I note that the Labor Party has indicated it will oppose these amendments when they come to a vote. The Labor Party's form in recent years has not been good on freedom of speech, as I heard noted by Senator Ryan. Who can forget their proposal under Prime Minister Kevin Rudd mark I to licence and regulate the media? To subject the press to the restrictive powers of a licensor is to subject all freedom of sentiment to the prejudices of a bureaucratic or, worse, political decision-making process and to make that process the arbitrary and infallible judge in all controverted points in learning, religion and government. It removes the right of every free man or woman to publish their opinion and confines that right to just such a person as the government-appointed process may deem proper. I doubt I need to stress the risks to democracy of restricting the freedom of the press and subjecting that freedom to the discretion of government.

Although I noted this as an aside, it does flow into the overall debate surrounding the application of section 18C as it stands, which impacts on the freedom of expression. The notion of freedom of expression is intimately linked to political debate and therefore the practice of democracy. One of the most notable proponents of the link between freedom of speech and democracy is Alexander Mieklejohn. He argues that, since democracy is self-government by the people, an informed electorate is a necessary prerequisite. In order to be appropriately informed, there must be no constraints on the free flow of information and ideas. Mieklejohn says that 'democracy would not be true to its essential ideal if those in power are able to manipulate the electorate by withholding information and stifling criticism'. He acknowledges, as I have already canvassed, that the desire to manipulate opinion can stem from altruistic motives but argues that, even then, 'choosing manipulation negates, through its means, the democratic ideal'. If he is right—and I will contend that he is—it is incumbent on those of us in this place and the other place to fight to protect the right of Australians to discuss complex and challenging issues which may at times include subject matters or even opinions which may be controversial or even offensive to some.

We may take a dim view of a person's opinion on a matter or even find that opinion abhorrent, but that is not in itself a reason to restrict the right of that person to hold or express that opinion. Any perceived detriment from not permitting such a person to do so must be balanced against the desirable outcome of protecting his or her freedoms and liberty and that of the wider community.

Within the spectrum of political correctness, sections of the media, our public institutions and our educational institutions run the risk of falling within the narrow bandwidth of an almost singularity of expression to the exclusion of all other views. I am saddened by the fact that the prevailing so-called 'progressive' view seems too fragile to withstand the robustness of diversity of opinion. All too often we witness seek-and-destroy missions launched against individuals who feel strongly enough about an issue to speak up against the cold winds of the left agenda.

Senators, in this place above all others we must demonstrate the strength of character to allow a diversity of opinion to be expressed. In his Indictment of Socialism (#3), 19th-century author John Basil Barnhill wrote:

Where the people fear the government you have tyranny. Where the government fears the people you have liberty.

And it is liberty above all else that we must strive for.

Almost every major change in our society, whether that be social, economic, scientific or otherwise, comes from dissenters who challenge the existing paradigm. The strong voices of individuals like William Wilberforce rose up against the prevailing majority and ultimately led to the abolition of slavery in Great Britain and her colonies. Whilst I am not a proponent of such theories, the Keynesian revolution led to a radical change in the methods utilised by policymakers seeking to redress the problems of underemployment and underinvestment. Almost every national government has maintained some level of vestigial Keynesian theory in their macroeconomic policy settings.

In scientific discovery we have seen a plethora of paradigm shifts, all possible only because authentic scientists know that we should never fall into the trap of believing that the science is settled. It never is and never should be. If the science were settled, paradigm shifts such as the transition to Mendelian inheritance from pangenesis, the transition to Einsteinian relativity from Newtonian physics and quantum mechanics replacing classical mechanics would never have occurred and the subsequent advances we are all beneficiaries of would not be improving our daily lives. In the case of each of these scientific advances, new scientific endeavour brought about by questioning existing science will inevitably move the realm of human knowledge further into understanding now beyond our comprehension or even imagination. In the same way, sometimes it takes the strong leadership of a minority view to prevail against the dismantling of institutions which have proven to serve our society so well.

The purpose of my comments in the context of the debate on ensuring that the provisions of our human rights legislation are properly focused on fully addressing racially discriminatory behaviour that should be outlawed is to reinforce the imperative that all such laws which inherently impinge on our freedom of speech must be balanced against that freedom and the benefits that it undoubtedly delivers. As Ronald Reagan once said:

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same …

Many of the complex challenges we face in Australia are complex by nature, and by that nature require debate and discussion. Section 18C as it stands can asphyxiate such discussion and, in doing so, frustrate the best intentions of many in our community and, in doing so, undermine the very harmony in Australian society that we all strive for and, indeed, that the legislation seeks to deliver. Let me now turn to the details of the bill.

The Human Rights Legislation Amendment Bill 2017 contains measures that are intended to reform section 18C of the Racial Discrimination Act 1975 to amend the complaints handling processes of the Australian Human Rights Commission under the Australian Human Rights Commission Act and to make minor amendments to that act sought by the commission to enhance its operation and efficiency. The amendments in relation to the complaints handling processes give effect to the majority of the recommendations of the Joint Committee on Human Rights, which examined this in its report on freedom of speech in Australia, which was tabled last month. The bill will amend part IIA of the Racial Discrimination Act to redefine conduct prohibited by section 18C, to ensure that the defined conduct more accurately encompasses the notion of racial vilification. The words 'offend, insult and humiliate' will be removed from paragraph 18C(1)(a) and replaced by the word 'harass'. The word 'intimidate' will remain. The bill will also introduce 'the reasonable member of the Australian community' as the objective standard by which contravention of section 18C should be judged, rather than by the standard of a hypothetical representative member of a particular group.

I would contend that it is hard to contemplate what mischief is intended to be addressed by the Racial Discrimination Act that would not be appropriately addressed by the word 'harass' and/or 'intimidate'. I think the intention of the inclusion of the words 'offend, insult and humiliate' was originally to help eradicate certain behaviours by some of our community which would cause harm to others. Looking at the way the act is written, the reality is that the replacement of 'offend, insult and humiliate' with 'harass', combined with changing the subjective nature that currently applies in the test to a more objective one, will improve the legislation. It will better enable the legislation to ensure that, where there is behaviour that should be outlawed, that behaviour is clear, much easier to understand and better able to be addressed and dealt with.

Particularly on the objective nature of it, we often hear from those on the other side questions like, 'What is it you want to say that you cannot say now under the act?' The reality and the way I see it is that the subjective nature of the test means we just do not know the answer to that. We could be having a debate about complex issues, and there are a number of things in Australian society that are very unfortunate. We see a lot of disadvantage in some Aboriginal communities and poor health outcomes for a lot of Aboriginal people in communities across Australia. We see things that should not happen, and if they were easy to fix we would already have fixed them. They are by nature complex challenges. We cannot fix them easily, otherwise we already would have. In the context of having a discussion about how you move forward to deal with that, people will put forward ideas. We should be in a position where we can have a free and open debate on what is required to actually address these challenges and fix and resolve them. But, in the context of that, it is quite possible that somebody might make a statement which somebody else may subjectively find offensive. That statement may conceivably be a statement which could actually be useful for the debate. But until somebody finds that statement offensive, which is an entirely subjective thing under the act at the moment, we do not know what that statement would be.

In answer to the question, 'What is it you want to say?', you just do not know what people might find offensive, despite the intent of the person saying it, which may be completely altruistic. It might be trying to help, but until that person says it, we do not know if anybody would find it offensive. We need to include a more objective test, one where the standard required to be met before the act is breached would be 'the reasonable member of the Australian community' who is impacted. That way we can create a much more objective standard which people can understand, one which makes it clear to the average Australian when the line is crossed. But if it is completely up to an individual to decide whether they are offended or not, nobody will know where that line is. So I think this is a very worthwhile amendment that should be supported.

Further, the law should provide protection from racial vilification. I agree with that and I have said that already. That is not a problem, and that will remain in the bill. It should do so in a manner which is consistent with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. However, the protection needs to be consistent with the right to freedom of speech, as I have already outlined in the first half of my speech. It is fundamental to the strength and health of our liberal democracy. Effective protection against racial vilification need not curtail freedom of speech. That comes back to the balance I was talking about before. However, section 18C in its current form potentially does this, without providing any extra protection from racial vilification. Also, section 18C fails to protect against racial harassment—an essential element of protection against racial vilification. The government considers that the words 'offend, insult and humiliate' do not protect people from racial vilification. Rather, they target the expression of ideas and opinions, particularly those which may be controversial or challenging, as I have already canvassed. Section 18C must be amended to address the disconnect between the ordinary meaning of the words 'offend, insult and humiliate' and the way they have been judicially interpreted.

Why is the government making these reforms? As is widely known now, the government party room has agreed to these reforms because they will strengthen Australia's anti-vilification laws. There are people on the other side criticising us, saying that this is somehow a watering down and is allowing even the removal of hate speech, which is an impression I think some people on the other side are quite happy to allow out there. This is not the case at all. Firstly, this is not about hate speech as such; it is about discrimination. These amendments will strengthen the ability of this act and the Human Rights Commission and those who enforce this act to ensure that harassment and vilification on the basis of race is minimised.

The decision of the party room followed the release of the report into freedom of speech in Australia by the Parliamentary Joint Committee on Human Rights. The government is making these reforms based on certain recommendations of that committee report. It is entirely appropriate that the government introduce legislation following those recommendations, and that is what the government is doing.

There has been a great deal of public discussion. I think this is one of the few subjects in recent times that have been very broadly discussed. It was brought on particularly by the very unfortunate death of Australian cartoonist Bill Leak. That focused the discussion and debate in a way that it had not previously been. That great deal of public discussion has focused in particular on section 18C of the RDA and on the way in which the commission deals with complaints. A number of speakers have already referred to the case of the students at the QUT and the complaint against the late cartoonist Bill Leak, as I mentioned. Both of those were brought by the Human Rights Commission and they brought the issue to greater prominence.

I have already mentioned in my speech that there is a need to strike the right balance. In my view the government's amendments do strike the right balance between protecting social harmony, protecting people from some in Australian society who would seek to do them harm on the basis of their racial background, and mutual respect and the democratic value of freedom of speech, which underwrites our democracy.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Senator Wong commenced the second reading debate for the opposition on the Human Rights Legislation Amendment Bill 2017, highlighted the status of our concerns in this area and outlined our ongoing concerns with changes to section 18C that are represented in schedule 1 of the bill. When I was representing the shadow Attorney-General I spoke on this issue on several occasions in a former parliament. The Labor Party's position has not changed and I do not intend to occupy the Senate's time outlining those matters again—certainly several of my colleagues have gone into the detail of our concerns there—but I do want to spend a little time talking about our concerns in relation to schedule 2 of the bill, the amendments that are proposed there and the further amendments proposed by the government there.

We have serious concerns regarding these procedural amendments and also concerns with the process undertaken to address these matters. We have already had a debate in this chamber about the Senate Legal and Constitutional Affairs Legislation Committee's inquiry and the limited time involved in addressing these matters. I will indeed rely on my colleagues who have outlined those concerns in the Senate committee report. Unfortunately, a result of those concerns leads us to where we are today. So here we are at 8.10 on Thursday night failing to understand what the rush is here, apart from the fact that the government have a caucus decision and they want to stem the tide of pain that they have had over this issue and the mismanagement of this issue now over many years.

It is very clear, as my colleagues have outlined, that there is no popular support for these changes. Polling suggests that 80 per cent of Australians are opposed to these changes. But that does not stop the ideological agenda, despite people's early thoughts about Malcolm Turnbull as a Prime Minister. It does not stop this government seeking to progress this issue.

The concern I think is best highlighted—and this is the process concern, the concern with the limited time involved—by two things in the matters before us. We have on this occasion Senator Brandis, perhaps because of the status attracting to the second reading speeches of government ministers, painting a picture quite accurately and quite clearly. It is a rare compliment from me to Senator Brandis. In his second reading speech he said:

The PJCHR's majority report made 22 recommendations; most concerned the Commission's complaints-handling processes. The Committee did not reach a concluded view on the appropriate wording of section 18C. Rather, it put forward a range of proposals that had the support of at least one committee member.

That is an accurate description of recommendation No. 3. Let me compare that to the majority report of the Senate committee that looked into that bill. It certainly puzzled me with my understanding of how these matters proceeded, but I did not participate in the Senate inquiry as I now no longer represent the shadow Attorney-General. Page 8 of the report claims:

Recommendation 3 of the PJCHR recommended the removal of 'offend, insult, humiliate' from section 18C of the RDA.

Even Senator Brandis concedes that that is not the case. So we have listened to hour upon hour of government senators contributing to the second reading debate and it seems from their own committee report that they do not understand what the PJCHR majority found. This is a quite concerning matter.

There was another concerning matter, but the Attorney-General has clarified this issue for me. At one stage it was suggested that the government would tonight have further government amendments to the ones circulated in relation to schedule 2. I now understand that not to be the case.

That now denies what I understand could have been a new award for the Attorney-General, which would have meant we would now have a 'supplementary, supplementary, supplementary explanatory memorandum'. This would have been because there are significant concerns from the opposition, from the Greens and from the crossbench; even with the further government amendments to schedule 2 there are concerns with things proceeding this way.

So why the rush—apart from, as I said, to stem the tide of pain for the coalition in relation to its ideological campaign around section 18C. Let me paint another element to this picture. Commissioner Triggs is due to conclude her term at the end of June this year. The committee has had a number of recommendations from the Human Rights Commission about concerns—and the opposition and, I think, others still have concerns about how well they are represented in the bill despite the government's further amendments. But if we are going to be changing the head of the Human Rights Commission, and if we want in the future to have an institution that can stand the test of time with confidence and with political support with a new government appointment, then why wouldn't you let these issues wait until we have determined a new head—especially given that the Human Rights Commission are still saying they have concerns with the committee inquiry in relation to how the government has addressed these procedural issues.

Going back to the PJCHR, we have consensus that procedural changes should occur. But now, in part from the Attorney-General's contribution in terms of how those recommendations have been progressed on behalf of the government, that consensus is fading and falling away. I have genuine concerns that if we are to have a Human Rights Commission that can attract public confidence, carry the test of time and address the issues that concern all of us, we need to maintain this consensus.

So why rush this issue through now? Why not take more time to carefully consider these procedural changes? I know that all parties in this chamber have accepted that there is some level of consensus that procedural changes should occur. So why not represent that in the amendments before the chamber? This is our concern now because the government amendments that are before us do not well represent that consensus. There are still also technical and other problems that need to be addressed in a better way than a discussion at 8.20 pm when we have not understood exactly what was going to be the situation before us and where there have been suggestions that there might even be further government amendments. Why not take the time to get this right?

I can indicate that, because of our well stated and long held concerns—clearly articulated by Labor senators in the debate again today and indeed foreshadowed by our amendments, the Greens amendments and the Nick Xenophon Team amendments to remove schedule 1 from the bill—we are adamantly opposed to the changes proposed to 18C. But because of our concerns in relation to schedule 2, we think this whole process has been compromised. For those reasons, we will be opposing the second reading of the bill. We believe the government should go away and get the schedule 2 issues right—take the time necessary, come back in May or indeed even later when we have a new head of the Human Rights Commission—and we should all work towards building a consensus and public support and confidence in a Human Rights Commission to move forward.

For those reasons, we will be opposing the second reading. We understand that that opposition may not gain sufficient support in the Senate. If that is the case, we will then be moving to further amendments to ensure that what goes forward, if anything, is at an appropriate standard rather than our preferred position that the government go away and take the time to try and get this right.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

This has been a very important debate. I want to wind up the second reading debate by turning to first principles—because although most of this bill is about process issues, about how the procedures of the Australian Human Rights Commission can be reformed, most of the debate on the second reading has been on the question of the government's reforms to section 18C. So let me begin my contribution to the second reading debate by addressing the question of why the government does feel that it is important to reform section 18C.

It is a hallmark of a free and democratic society that all of its members have the right to voice their opinions. That is what freedom of speech means. That freedom of speech is integral to the operation of a liberal democracy has been recognised by the High Court when it recognised that freedom of political communication was a necessary implication of Australia's Constitution. In 2004, Justice Michael Kirby, in Coleman v Power, put it this way:

In Australia, we tolerate robust public expression of opinions because it is part of our freedom and inherent in the constitutional system of representative democracy. That system requires freedom of communication. It belongs as much to the obsessive, the emotional and the inarticulate as it does to the logical, the cerebral and the restrained.

Yet, as we know, people have widely differing views. As the great American judge Oliver Wendell Holmes said more than a century ago in his famous opinion in Lochner v New York:

A Constitution … is made for people of fundamentally differing views.

As both Michael Kirby and Oliver Wendell Holmes recognised, every citizen of a democracy, whoever they may be, wherever they may stand on any given issue, has an equal and fundamental right to hold and to express their views. And, however fundamentally or profoundly others may disagree with or disapprove of those views, we all, as citizens of a democracy, have an obligation to respect the equal right of every other citizen to hold and express their views. As our greatest Prime Minister, Sir Robert Menzies, said in one of his Forgotten People speeches in 1942:

Let us … remember that the whole essence of freedom is that it is freedom for others as well as for ourselves: freedom for people who disagree with us as well as for our supporters; freedom for minorities as well as for majorities … Most of us have no instinct at all to preserve the right of the other fellow to think what he likes about our beliefs and say what he likes about our opinions. The more primitive the community the less freedom of thought and expression is it likely to concede.

The history of liberal democracy is the history of the struggle for freedom, and that struggle has many heroes. In fairly recent memory, one of those heroes was the novelist Salman Rushdie. This is what he said:

… one of the problems with defending free speech is that you often have to defend people that you find to be outrageous and unpleasant and disgusting.

But that is the price we pay to live in a free society. We cannot demand for ourselves a greater right to express our opinions than we are prepared to concede to any other citizen, regardless of how objectionable their opinions may be to us. In the words of Noam Chomsky, a great hero of the left whom I am not often given to quoting:

If we don't believe in freedom of expression for people we despise, we don't believe in it at all.

That is why I said, in the first speech I ever gave in this chamber:

… a liberal society is only worthy of the name if its citizens enjoy an absolute right to hold, and to express, opinions which other members of society find outrageous. Any attempt to limit that right, whether by actual censorship of opinions or by the insidious new cultural tyranny sometimes called 'political correctness', is a fundamental violation of a free society. For as long as I sit in this place I will defend the absolute right of all citizens to the free expression of their opinions—no matter how unfashionable, ignorant or offensive those opinions may seem to others.

That is where I stood 17 years ago and that is where I stand tonight.

We see the clash of fundamentally different views on display every day here in the Senate. The very purpose of parliament is to bring those views together, as representative of the whole Australian people, and engage in a contest of ideas as we debate the great issues of the day. Sometimes, as we debate those ideas, we will say things that are offensive to others, or insulting, or even humiliating. That is partly because one person's ideas may themselves be offensive to a person who has a completely different point of view, and sometimes because in making our case we use words that may hurt the feelings of others. That is the way democracies work. That is why we proudly describe our democracy as robust. In a democracy, it should never be a reason to censor somebody's participation in debate that others may feel offended, insulted or humiliated by what they say.

What political cartoon, for instance, does not humiliate its subject? That, in a sense, is its very purpose—to make a point, sharply, wittily and memorably. That is the essence of satire. That is something that the late, great Bill Leak, whose spirit, in a sense, presides over this debate tonight, knew better than anyone, which is why his cartoons were so penetrating and so effective. It was something the cartoonists at Charlie Hebdo knew too, which is why they were the target of authoritarians and fanatics, who slayed them because they dared to exercise their right to free speech.

Yet section 18C of the Racial Discrimination Act specifically prohibits the expression of views merely because they may insult, offend or humiliate. It is political censorship, pure and simple. A law like that has no place in a free country. It is not to the point that section 18D provides certain carve-outs or exemptions. There should not need to be exemptions from a prohibition on free speech, because free speech is a fundamental human right which should never be censored in the first place. And, of course, whatever the exemptions, the very existence in our law of a provision like section 18C has a chilling effect on freedom of speech which can never be measured but is, inevitably, harmful.

Nor is it to the point that the limitations on 18C apply only to speech that concerns race, colour, or national or ethnic origin. Politicians cannot not loudly proclaim their belief in freedom of speech and, at the same time, ring-fence one area of public discussion—discussion about race or ethnicity—and say that freedom of speech principles do not apply to them. And, yet, that is the very thing opponents of these reforms have sought to do. That was the great vice in the attempt to censor the famous Bill Leak cartoon, which drew attention to an undoubted and severe social problem—the neglect of Indigenous children by delinquent fathers—and yet was said to fall foul of section 18C merely because it related to the question of race.

Indeed, it is the crowning irony of this debate that those who champion section 18C have actually in this very debate attacked those of us who favour reform, because of the colour of our skin. When on Tuesday I said that I did not believe that Australia was a racist nation, what did Senator Bilyk say by way of interjection? 'Coming from a white man,' she said. Senator McCarthy, in her contribution, said that I would not understand the issue because I was 'a white man growing up in Petersham', and Senator Di Natale said that this bill 'has everything to do with allowing a very small group of very privileged, largely older white folk in this place to be more racist than they might otherwise be.'

Those remarks are, of course, deeply offensive and insulting. It is deeply offensive and insulting to me for Senator Bilyk and Senator McCarthy to suggest that the reason I support this bill is because of the colour of my skin. It is even more offensive to everyone in this chamber for Senator Di Natale to say suggest that older white folk in this chamber support this bill so as to allow them to be—in his words—'even more racist than they might otherwise be'. But, surely, it shows how impossibly weak the argument is of those who argue against reform of section 18C that, in order to make their argument, they have to engage themselves in the very conduct which section 18C outlaws: to offend and insult those of a different point of view because of the colour of their skin. And, yet, that is what they have done.

The difference is: I do not seek to censor Senator Bilyk, Senator McCarthy or Senator Di Natale, offensive and insulting though their language is, because, like Michael Kirby and those others whom have I quoted, I accept that, in a robust freedom-loving democracy, it is never a sufficient reason to censor another point of view either because it is offensive or because it is expressed in offensive language.

This is not primarily a debate about race; it is a debate about free speech. Even if it had been a debate about race, it no longer is since the Labor Party has now said that it would seek to broaden section 18C to cover religious beliefs—that is what Dr Anne Aly said only two days ago, and she is not a lone voice. In 2012, the Labor Party Attorney-General Nicola Roxon released an exposure draft of amendments to anti-discrimination law which would have applied section 18C to some 18 so-called protected attributes, including, incredibly, industrial history, political opinion and social origin. How in a free country can we have a debate, if it is impossible to say anything that might offend another person on account of their political opinion? The answer is: if we were to do so, we would not be a free country any more. I am not a great believer in floodgate arguments, but I am bound to say, given that we know where the Labor Party's mind is on this issue and where a future Labor government may take us, the section 18C debate takes on an even more serious and indeed sinister significance.

Coming back to section 18C, as it currently stands, I have explained why the government is moving to remove the words offend, insult and humiliate because they impose an impossible burden upon the freedom of expression, the freedom of speech which, as I say, is a hallmark of a liberal democracy. If there is anyone left in this country who sincerely believes that section 18C should not be reformed, let them ask themselves this question: what kind of racial vilification law fails to prohibit harassment? Those who oppose this reform should ask themselves this question: what is the conduct that they would prohibit which is not already caught by the concepts of harassment and intimidation? It can only be the expression of ideas and opinions. Yet the one thing a free society must never do is to censor the expression of ideas and opinions. Anyone who is prepared to do so, in the name of whatever other value, cannot pretend to be a believe in freedom of speech.

The amendments the government will move will ensure that Australia is better compliant with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. Almost every country in the world—some 178 nations—is party to that convention. Article 2 obliges the states party to 'prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation'. How revealing is it that none of the opposition speakers against this bill have been able to point to a single country whose domestic law contains a provision expressed in the terms of section 18C, prohibiting behaviour merely because it is offensive or insulting? Do you know why? Because there is not one. Not one nation on earth which seeks to protect against racism gives effect to the convention against racial discrimination by the use of that language. Those who foolishly say that this amendment gives a green light to racism need to explain why not a single country in the entire world has a section 18C.

The reforms to section 18C add the word 'harassment' to the word 'intimidate' as prohibited forms of conduct. That does not raise free speech issues. Intimidation and harassment are not exercises of free speech. Rather, they are and have always been acknowledged to be species of unlawful conduct. The fact that that conduct might take the form of spoken or written words is beside the point. To intimidate another person—in other words, to threaten them or to cause them fear—or to harass another person—in another words, to vex, to annoy or to attack them—is to intrude upon the other person's freedom itself. Such conduct has nothing to do with freedom of speech, and its prohibition is entirely justifiable both to protect freedom and to protect social order. That is why I have always believed that there is no inconsistency whatever between effective, appropriately worded racial vilification laws and the robust defence of freedom of speech, and that is the principled reason why the government is moving to reform section 18C and, at the same time, to strengthen its antivilification provisions and to remove its anti-free-speech provisions—not inconsistent objectives but complementary ones. (Time expired)

Stephen Parry (President) Share this | Link to this | Hansard source

The question is that the bill be now read a second time.