Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

As I have said about section 18C of the Racial Discrimination Act, it is not in keeping with what I believe the majority of the people want. In listening to talkback radio and to other people who come up to me in the streets and in my office, people want what is right. They want to be able to have an opinion. They want to be able to voice their concern. As I said before—and I have said it repeatedly—about the word 'offend', not everyone likes the way other cultures dress, their music, the way they dance or whatever. If you make a comment like that, that other person may be offended by it. Is that enough grounds to take them before the courts for racial discrimination? I do not believe so.

Let us put it in the true context of what it is. Just two weeks ago, I had Bill Leek's widow and son come to visit me, in support of my stance against 18C. Johannes saw the stress that his father went through. His widow was so distraught about having lost her husband, and so she should be. They saw the stress that he was put under, with the challenges upon him, and it did have an impact on his health. They came to see me because they knew my stance against 18C and they encouraged me and others to stand up for this. Johannes said, when his father drew the cartoon, it was to send a message of what was happening in our society. It was not meant to be derogatory towards the Aboriginals—not in the slightest. He was basically saying, 'This is what is happening in our society; this is what is happening in some communities,' and that was his way of expressing it.

Isn't it funny that people who objected to the cartoon had to go out and try and find some people to complain about it? They actually went out of their way to find some people to complain about it. Is this what it is about—that you have to go and find people? What I am seeing these days in Australia is that those of the left with the socialist views are encouraging people to purposely go out and complain. I am hearing from a lot of different groups and organisations and people from different cultural backgrounds that they are not offended by this cartoon. If they are, let them stand up on their own two feet. Let them go and make a complaint. Do not find other people to go and make complaints for them and continually stir the pot. If I say anything that is derogatory or not in keeping with what the average person in Australia believes, they will judge me at the polling booth. That is what they have done and that is why I take my place here in this chamber with three other senators.

Freedom of speech is so very important. Criticism is not racism. This is all about having a debate about these issues, having your say and trying to find the right answers—and that is all Australians ask. Australians are not racist. Australians are very proud of their culture, their country and their heritage. Most Australians, including me, welcome others who have come here to this country for the freedom, the life that we have and our way of life. It is so precious to each and every one of us. Surely, we can all work together and in harmony and stop this rubbish that is going on in our country, pushed by the left side of politics.

Jonathon Duniam (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I plan to make just a relatively brief contribution to this debate. It is a welcome opportunity, but I think enough has been said by others in the public domain and, indeed, in this debate on the Human Rights Legislation Amendment Bill 2017. There have been many views expressed throughout the debate, both publicly and here in parliament. I guess that is the beauty of what we are debating here—it is about the ability to express one's views freely without being impeded unnecessarily. Free speech is a wonderful thing and it is a cornerstone of our democracy. Many have said it and I am a firm believer in it. It is a quality that we have in this country. Freedom of speech is a freedom we have in this country that many others around the world envy because they do not have it. It is part of what makes this country so strong, in my view.

I want to take issue, though, with a few things that have been said during the debate. The point has been made that this is not an important issue. Prior to the debate coming on this week, a number of senators and members in the other place indicated that they felt that this issue was not important. I, fundamentally, reject that: I think it is an important issue, and so do many other people in the community—those who support it and those who are against it. It is an important issue to debate and, indeed, to send the message that this is not an important issue, I think, is a bad one. It is a message we are sending to the QUT students. It is a message we are sending to Bill Leak's family. To tell them that the plight of their suffering through the long-drawn out process that they have been subjected to is not important, I think, is a terrible message to send.

So it is important, but it is an issue that is as important as the other issues that we have been dealing with. We have been looking at issues this week like company tax reform, tax breaks for small business to encourage investment. We had childcare reform last week. We have been dealing with issues of health; education; foreign policy; jobs and employment; energy security, and penalty rates—all these things have been debated in this place. What has annoyed me is that those people, who have been claiming that this issue is not important, have been trying to characterise this debate as the only thing on the government's agenda, and that is just not true. It is one of many things that have been debated and one of many things that people in our party room have been indicating they would like to discuss. I am glad we are doing that, along with all the other things that we are going to be spending a lot of hours tonight and, potentially, tomorrow debating. The government can walk and chew gum, and just to prove that—

Senator Cameron interjecting—

We can walk and chew gum, Senator Cameron, and I appreciate your contributions all the time. However, you know, we passed 12 bills through the Senate on Monday alone and, since the election, I am advised we have passed 83 bills. So to suggest that we cannot do anything—

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Now you are judging the government by how many bills you pass!

Jonathon Duniam (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Well, passing bills is what we do here, and reducing regulation is a good thing too and many of those things, I hope, will do that, Senator Dastyari, through you, Mr Acting Deputy President Back. Some of the reforms we passed this week will make the childcare system better for people on the lower end of the income scale and our welfare system more sustainable through savings measures. But, as I say, to try and characterise this debate as the only thing on the government's agenda is mischievous and misleading. As I have said, it is not our only platform.

During the debate, I was interested to hear of the test that is being applied to things that this parliament should deal with—that is, whether these issues are being discussed at barbecues. There are many things that this parliament deals with that people on the street do not discuss. There are issues—the mechanics of government, small reforms, streamlining of legislation, removal of red tape and regulation—which get dealt with here that the people of Australia do not sit at home and discuss. Just because they are not discussing it in every household and at every barbecue as a reason not to deal with this, is, I think, not a very good threshold for us to apply to the work that we should be doing in the Senate.

The point that is being made in relation to this legislation making it easier to be a racist in this country through supporting these reforms is a disappointing argument and, I think, a cheap one. The point was made in this debate in the previous contribution by another senator that Australians are better than what is being reflected in this debate. I suppose that is the point that I would like to make as well. Through the debate, those who are opposed to reform seem to be making the point that we need to protect Australia from itself—protect Australian people from themselves. I have to ask those who oppose reform: don't we trust the Australian people?

It was the same with the marriage plebiscite legislation: denying Australians the right to have their say and conduct a debate in the community. We wanted to prevent that from happening, because we did not trust the Australian people to do it in a fair and civilised manner. That is a pattern I do not support. I do have faith in the Australian people, and I think Australians can conduct themselves in a way that is fair and not going to bring about hatred and civil disputes. I think that we should, as a Senate, have faith in the Australian people. That is what is good about our country: the decency of the people who live here—and that is what the majority of people in Australia are like. Of course there is always the minority, but we have to have faith in the majority of the people who live here.

For those opposed to reform, I just want to know why they do not have faith in the majority of Australians and why we need to regulate the behaviour of Australians when it comes to every facet of life. We are not a communist country, and we should not be trying to control every element of people's lives and everything that occurs in society under the guise of trying to protect people from themselves.

As I said, there is a minority and, yes, we need to deal with them, but I do not think they should ruin it for everybody else. We have to, as I say, have faith in the majority, and that is what I believe these reforms intend to do. They will deal with those people who cause the problems, those who intend to do harm and racially vilify. I have to take issue, though, with a point made by Senator Watt in his contribution—I believe it was yesterday. Because the complainants lost in the cases that have been cited in the debate quite extensively—QUT and Bill Leak—therefore the laws are working and therefore they do not need to be changed. The point I make in response to that is: I have grave concerns about the way these processes went on for as long as they did. That is what many people are upset about. That is what the people who were subject to the complaint were upset about, and I think that is why we have having this debate. To have these drawn-out emotional rollercoaster events taking place in the lives of the targets of these complaints—I believe the changes target those problems and prevent them from happening into the future.

It is about protecting freedom of speech, preventing vexatious complaints and protecting people at the same time from the racial hatred that every single person in this place does not want to see in our community. It is the behaviour we all hate and the behaviour that we want to see stamped out in our community. And that is what is caught in the provisions of this bill.

I mentioned in my first speech that I married someone from another country. My wife and her family, when they came to this country, could not speak English. They did not have any assets. They had the clothes on their backs, and that was effectively it. My wife's family, when they came out here, left a country, Albania, where they were not allowed to speak out on anything—on matters of politics, matters of religion or the most insignificant matters that we in this country can speak about freely, without fear of any repercussion. So I thought I would take the provisions of this bill and have a discussion with them. They have more insight into what it is like to be subject to racist slurs. Coming from another country and having had a poor grasp, in their initial years here in Australia, of the English language, they know what it is like to be subjected to racist slurs and comments of hate. So I thought it would be a good idea to have a discussion with them about the changes. Even more recently, though, I have to say they have been subjected to comments from members of our community, sadly, that many of us in this place would say were not the right thing to say to people from other countries, about their accents and where they have come from—'Go back where you've come from,' and those sorts of comments.

In deliberating on that, as I say, I thought it was important to run past them the provisions of this bill: do they feel that this country should continue to regulate what people say to the extent that the current provisions of section 18C of the Racial Discrimination Act do? Because my extended in-laws—and there are now many of them in Australia—have been through more than I and many others in this chamber have ever been through, I valued their opinion, just as I value the opinions of those who have come into my office and made their views known, or at least sent me an email or made a phone call. But my in-laws, who have faced racism, slurs and derogatory language and who lived in a communist country where there were restrictions on things that you said and did, support the changes that we are putting up here. They have followed this debate with interest, probably because their son-in-law is a member of the Australian parliament but also because they take an interest in public life, and they support the changes. I take on board what they have to say. As they have been the subject of racial slurs, I think it is important to hear from them what they had to say. I was heartened by what they had to say. The other point they made to me when I consulted with them was that perpetuating these restrictions, the restrictions they left in their home country of Albania, is something they did not want to see.

On that point, it was concerning to read in The Australian today about the proposal from the opposition to potentially extend the scope of 18C to religion now. According to an article by Chris Merritt in today's Australian, the opposition said:

… there was scope to reassess extending section 18C because the debate over racism had extended to religion.

I have grave concerns, and I hope sincerely that it is not the case that they plan to not only try to prevent the government's legislation from passing through this place but extend these restrictions on free speech to make us even more of a nanny state. I think that would be the worst outcome for this country.

We do not need to be wary of the citizens of this country. We do not need to take the nanny state approach and constrain personal expression here. Contrary views can sometimes be confronting, as we know in this place, and can challenge the opinions we hold strongly. As I say, they can make us uncomfortable and can be a cause for us to revisit our strongly held views and rethink what we might believe is right. But that in this country, I believe, is a normal part of discourse in our society which we should stand to protect and uphold.

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

In this particular process, I think it is important that we consider what has gone on in our community over the last 45 years, with people engaging in this process. I take the point that Senator Duniam made that people are not talking about these issues everywhere, but what we found in the Parliamentary Joint Committee on Human Rights' extensive committee hearings over the new year period was that people who really care about this process are talking about it. Something that became very clear was that there would never be absolute agreement, and that has been reinforced by that committee and also by the recent Legal and Constitutional Affairs Committee hearings: we will not achieve agreement on this issue. What we have achieved is a wider discussion.

I have said before in this place that I think the process of the joint standing committee was truncated and rushed way too quickly. An issue had been raised about how the Racial Discrimination Act operated. Instead of taking a long-term, wider consideration of the process, the government tried to rush it. I question to this day why it was so necessary to have this particular process over the new year period, the end of January and early February, when community organisations were unable to have the time to really consider what the government was putting forward to the community. This issue had been raised a couple of years beforehand, there had been some community discussion and it was taken off the agenda. In fact, we were told by the government that it was no longer part of the current process to go forward with that. That was in 2014, I believe. But there was this rush to have a committee process, which can be, as you and I agree, Mr Acting Deputy President, the most valuable way for the Senate to work. The committee process is our link to the wider community. So to set up the joint standing committee process and then, I think, to have unseemly haste in the opportunity to talk with people was a disappointment to me.

But, even allowing for that, we had the most valuable interaction with organisations, legal professionals and people in the wider community who cared about the Racial Discrimination Act. Most importantly to me, there were people who were personally impacted by racial discrimination. Some of the most confronting evidence we had in every state was from people from different ethnic backgrounds who had actually been the subject of racial discrimination. Some were Aboriginal and Islander brothers and sisters, in my state of Queensland and in the Northern Territory, where we had gut-wrenching evidence about what it meant to face daily discrimination. We also had it from a range of different people who have different backgrounds but talked about the hope and the feeling that Australia would provide a welcoming and safe place for them and how they coped with the range of racial comments and racial behaviours that were, in fact, damaging and harmful.

Did all of those people use the Racial Discrimination Act? No, they did not, but most of them knew it was there. In terms of the reinforcement and the security that this act has provided, it is absolutely essential that the message is given clearly to our whole community that we understand the dangers of racial discrimination and that the parliament, the government and the society of Australia understand that and will put in place processes that will protect people's personal safety and their emotional security.

Given that, the changes that we have now seen recommended by the very short Legal and Constitutional Affairs Legislation Committee inquiry have been surprising. Those of us who were involved in the joint standing committee process understand that whilst there were clear areas of agreement—which is clearly on the record in Hansard and in our tabled report—there were a range of issues about which there was no agreement in the committee. That was put on record in what we call recommendation 3, which said that these issues were not agreed and that there were individuals or groups of people in the committee who had these views, and we listed them. However, in no way could that be seen as an endorsement of every issue listed.

When the Legal and Constitutional Affairs Legislation Committee was again convened extraordinarily quickly—in fact, I have rarely seen the Senate act so quickly. It is amazing how fast this place can operate sometimes. It is not often, but when they really want to do it they can move. We had this legal and constitutional affairs committee put in place so quickly on the basis of the joint standing committee. It was actually said in the legal and constitutional affairs committee that, as these things had been in the joint standing committee, we were moving quickly—very quickly—to impose a new regime. In that new regime, it looked particularly at those magic words about humiliation and at the way that people can feel when their race is a reason for abuse, isolation or damage. We saw those magic words, and the core recommendation that has come to this parliament, in this very quickly drafted legislation, is that we remove those words and we replace them with others.

Also, in the other schedule there are a whole range of administrative changes, most of which the joint standing committee agreed on and most of which people in this place and in the wider community agreed on. But, to my disappointment, once again the government have selectively chosen what they will bring forward out of a committee report to legislation in this place.

The joint standing committee worked extremely hard to come up with a range of administrative changes that we think responded to the evidence not only of the Human Rights Commission itself but from people who had dealt with the Human Rights Commission and from people in the wider community who understood how the process should operate. But did the committee, did the parliament and did the government pick up all of the recommendations? No. They had to throw in a few things that were not even on the record during that period of consultation in January and February. That is what worries me. It is again raising expectations, raising the issues and then selectively coming forward with ideas, with recommendations, with which there is not agreement. While, as I said when I started, we will never get full agreement, it probably would be judicious to consider, when moving on such a sensitive piece of legislation, trying to get as much agreement as we can.

As everybody knows, and I will not go over the same information, we reject the change to 'harassment' in the definition of discrimination that has been put forward in this report. We think the words that are in in place—we think the understanding that can be better in place—are already available for the community. We have judicial precedent which points out how the act will work. We have a process now where we believe the various responsibilities of discrimination concerns and aspects of free speech are effectively balanced in this legislation.

In terms of the administrative reforms, the dissenting report is quite clear on the areas which were on record during the legal and constitutional affairs committee which we do not believe effectively fulfil the concerns about administration. There are a number of key issues there which have been covered by other speakers, which I will not go into.

I just want to add something about the process. This is a debate, and I never shy away from having debate and discussion both in this place and in the wider community, but I truly believe there has been a noxious environment created around this issue. The debate has been impacted by various statements by media and by conflicting statements put out there, which has led to more confusion in the community—and in fact not only confusion but fear, distrust and, in some cases, anger.

I am saddened that, if we are genuinely going to look at legislation, if we are genuinely going to gather together people who care about an issue and have them have the respect and the trust to exchange issues, this has not been a good process, because people in the community have been given mixed messages. I think that, no matter what happens out of this debate, the issues around the racial discrimination legislation will continue to hound and confuse.

One of the elements that were not picked up by the legal and constitutional affairs committee was a jointly agreed recommendation that talked about the need for more education programs and for more interaction between the commission and the wider community so that there would be clear understanding about what is in the legislation and how it would operate and to remind the community that this system was not put in place as a judicial system; this system was put in place as a mediation and conciliation system. It was a very clear process. In the racial discrimination process, the idea was that, when there was concern or feelings of hurt, people would have the opportunity to come together and to work together to come up with an agreement. This was offered and continues to be offered around issues of an apology and acknowledgement. That was the intent of the system. What we should be doing in this place, with the support of the community and with the support of the commission, is to remind the community that that was the intent. It was not set up to be judicial; it was set up for mediation, and that I think is something we have lost.

Whatever happens in this debate, we need to ensure that there is that community discussion and an awareness and education program and that people can have genuine trust that one thing that should bind us together is a rejection of any element of racial discrimination. That should be the answer that we come up with in this parliament.

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

I do not mind standing here and saying unashamedly that I am a freedom lover. I believe that there should be less government. I believe there should be lower taxes. I think there should be more self-reliance by every member of our community, that we should have freedom of thought, freedom of worship and freedom of action. But action, of course, has consequences. That is why we have the rule of law. But some laws are just plain wrong, because when they were considered no-one anticipated how they would be misused and abused to corrupt the original intention. Section 18C of the Racial Discrimination Act is one of those examples. In fact, it is the quintessential example of bad law, of law that, no matter how well intentioned when it was formed and brought in, has been misused because it is subjective and it is oppressive and because the process attached to investigating it is absolutely rotten to the core. So I support the government's changes contained in the Human Rights Legislation Amendment Bill 2017. Belatedly, the government has been dragged—kicking and screaming, I should say—to dealing with the misuse of section 18C of the Racial Discrimination Act.

The key offence of section 18C is that it creates an offence for insulting or offending someone else. It means that the complainant does not even have to be insulted or offended for themselves. They can take insult and offence on behalf someone else. That is simply preposterous. It is akin to me saying, 'I am sorry, I am going to lodge a complaint and drag someone through a tribunal, court or legal process because I think you might be offended by what someone else has had to say.' I regret to say that I could not do that through section 18C of the Racial Discrimination Act, because apparently it only applies to some races. It does not apply to everyone, because we have had Senator Leyonhjelm lodge a complaint about being called an angry white man, but that was dismissed. I can only imagine if, instead of white, there was another colour used or if it was about a woman that would find its way into the complaints tribunal. I do not have any doubt about that. Even the process attached to these complaints—spurious complaints and subjective complaints—is rotten, because it only applies to certain people in our community. That much is very, very clear.

We have to ask ourselves how we can justify the misuse of section 18C of the Racial Discrimination Act, which has been applied in such a blunt and unjust fashion in recent times. I have heard no-one in this place or out in the broader community who is able to justify its misuse in the case of the students from the Queensland university. No-one can justify it, because it is rotten to the core. We had a circumstance where some students walked into an unoccupied computer lab in a Queensland university. They were told to go, because their skin colour and ethnicity were wrong. They then went onto Facebook, where one wrote, 'Fighting segregation with segregation.' Someone else said something along the lines of 'where's the white supremacists' lab?' They may be comments that people do not like, but the person who kicked them out decided to this was a path to profit and lodged a complaint saying they felt insulted and defended, and seeking $250,000 worth of compensation for booting some white kids out of an Indigenous lab. That is an injustice, and the fact that it was entertained by those people in the Human Rights Commission for many years—they did not even tell the people who were the subject of this complaint for about 14 months—is an indictment of the process. It is an indictment of Professor Triggs and her comrades in the Human Rights Commission, who have done an unbelievable disservice to people in this country. And still they appear at Senate estimates doing the Pontius Pilate: washing their hands of it and saying, 'We've done nothing wrong.' They have done a heck of a lot wrong. They have done an unbelievable disservice. The simple fact that these students, the ones who did not pay to Ms Prior the $5,000 compensation which was her price for go-away money, had to engage lawyers and fight this fight and battle for three years and had to go to court to have it dismissed. Those on the other side of this chamber say, 'That proves the process works.' Clearly, they have never had to fund their own court defence. Clearly they have never been dragged through the courts, have never had to enter into mediation and engage lawyers on such spurious actions. It is debilitating. It can destroy people's confidence. In the case of one of these Queensland university students it destroyed his desirable career, because he thought he would be forever labelled a racist.

Everything that is wrong with section 18C has been demonstrated by that case. Yet those on that side of the chamber do not want to know a thing about it. They are in denial, and that is part of the problem we have in this country. We have a group of people who are using laws like section 18C, their own denial and their own compartmentalisation of politics as a method of shutting down debate, of shutting down discussion and freedom of speech, of denying freedom of choice. I lay this directly at the feet of the left side of politics, not in a partisan political manner but by saying that their desire to pursue identity politics and not to see Australians as one homogenous group but to compartmentalise them into people broken down by differences of race, religion, gender or sexuality has done our entire country an enormous disservice. They have cultivated a culture of victimhood, an ideology where there is a grievance industry perpetually looking to be outraged, to stifle others from pursuing what I think are very reasonable contributions to public debate.

There is a problem with that, of course. Those on the left side of politics should be very careful because, whenever you are feeding the crocodile all the things you do not like, eventually you run out of them, and the crocodile of political correctness and victimhood ideology will ultimately consume you too. Within that culture of leftism, where they are identifying victims, there is always going to be a hierarchy of victimhood, and, as I said in my maiden speech in this place, we are going to be forced to choose whose rights trump other people's rights, which rights should prevail. That is exactly what we have got happening here. The culture of victimhood is about some rights subjugating others, and it is doing a disservice to our entire community.

Section 18C clearly needs reform. I have sponsored two bills in this place that were very simple bills to remove the two words 'insult' and 'offend' from the section so that there is less subjectivity. But the government's bill in some ways goes even further, in the sense that it also reforms the process attached to investigating complaints. I think that is a very worthy step forward, but there are also some problems with the government's approach, which I will be seeking to amend during the committee stage. We need to stop section 18C effectively being a 'hurt feelings' test. We need to stop it from being used, or misused, to bludgeon legitimate debate into submission. We need to change it to stop it being used as a method of profiteering by some sensitive snowflakes who claim, whether correctly or not, that they have been upset or offended or insulted by something someone else has to say.

These changes are necessary because of the evidence of the misuse of section 18C in recent years, not only in relation to the Queensland University of Technology students but also in the case of the late cartoonist Bill Leak being taken to the tribunal and having to defend himself. And we had one of the human rights commissioners touting for business, seeking complaints on behalf of the grievance industry. We rightly outlaw touts on the racetrack. I do not think they should be able to tout for the discrimination industry either. That hangs around Mr Soutphommasane's neck. It is a yoke that he will have to wear. He may defend it all he likes, but it is absolutely wrong. So the procedural changes have my support absolutely.

The bill goes even further than I wanted to in respect of the removal of 'insult' and 'offend'. It also wants to take 'humiliate' out and replace it with the word 'harass'. I understand the intentions of the government in this space, and I will support it, but I would like an amendment about the definition of 'harass'. According to the government's definition and some of the things it is putting forward, 'harass' can mean a single instance of a social media post or something like that. I understand that sometimes politicians move in a parallel universe, but I went through a number of international dictionaries, and 'harass' has a slightly different meaning than the one the government is inserting into this bill. It is all about repeated actions. The definition of 'harass' in the United States is: repeatedly making small-scale attacks on an enemy. 'Repeatedly' is the key word there. It is not a single instance, which is where the government has got this wrong. That definition goes on through any other dictionary that is there. It is all about continually or repeatedly having an action take place. So this bill needs to be amended—and I will be seeking to do so in the committee stage—to redefine 'harass' so that the fact that someone has put up an unpleasant Facebook post or said something on a single instance will not constitute harassment. This would bring it much more closely into alignment with a legal definition of harassment, rather than a political definition of harassment.

The second amendment that I will be seeking to introduce is what I am describing as the 'truth is a defence' clause. At the moment, the truth of a statement is not actually considered by the Human Rights Commission, even in the amendments to the process that have been put forward by the government, and nor is it actually part of this act or the Racial Discrimination Act itself in terms of the consideration by those who are rendering judgement in a legal sense. I think we need to have an amendment—which I will be proposing later—that says that section 18C does not render unlawful an act if the person who does the act proves that the act carries an imputation that is substantially true. This will enable someone charged or being investigated under this act to say, 'What I said was substantially true; these things took place; these are the facts surrounding it,' and so the ordeal of the process can be dismissed almost immediately by the proving of those facts, or, if the Human Rights Commission continues to be biased and twisted and seemingly committed to perpetuating the grievance and victimhood ideology, when it gets to a court, a judge can go, 'Thank you; we accept the truth of this defence.'

I think they are very sensible changes, and I hope the government will consider them, because in the end our responsibility is to ensure that our legal system and the framework that we are imposing upon people act in the best interests of our nation.

I close by saying that the reform to section 18C does not give people licence to go out there and egregiously cause offence. It is not designed to allow hate speech, as those on the other side want to characterise it. There are so many times it has been misused by those who are prepared to attack freedom of speech, by making things up, that the whole debate—I have to agree with Senator Moore—has become a bit toxic around this issue because of the alt-Left ideology that is out there and the fake news that they are putting forward. The simple fact is that, until recent times, section 18C was rarely, if ever, used, but now it is being used as a weapon of mass destruction in the battle for freedom in this country.

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

Oh, my God.

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

It is a shameful indictment of those who cultivate that sort of industry—

Honourable senators interjecting—

I can hear some of the chickens cackling away over there, Mr Acting Deputy President Marshall.

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

Don't insult chickens!

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

Yes, I apologise. Chickens are a little smarter; I accept that, Senator Macdonald!

Senator Hanson-Young interjecting—

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

Senator Hanson-Young, you must not intervene in the Senate's proceedings from that position at the back of the chamber.

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

It is very true. It is funny; some people have been here for so long, they have been institutionalised, but they still do not know the standing orders. It is quite shameful. I thank you for pointing that out to Senator Hanson-Young, who has not graduated yet from the University of Adelaide school of politics, I think.

Nonetheless, the issue is that section 18C has been misused in recent times. I am yet to hear anyone in this place defend its misuse against the Queensland University of Technology students, and, if you cannot defend the use of a law, it is time to amend it. That is why I support the government's amendments to section 18C. I hope my amendments will be successful, but, if they are not successful, I will still support the bill; and, if the bill is not successful, I look forward to having a debate about simply removing 'insult' and 'offend' from section 18C, as per the bill that I have introduced into the Senate on two occasions. Thank you.

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

I want to contribute a few words to this debate, mainly in my role as Chair of the Legal and Constitutional Affairs Legislation Committee, which inquired into this piece of legislation on behalf of the Senate. This, of course, is not a new issue. It is not a new proposal even. I remind those who might be listening that the coalition went to the 2013 election with a commitment to either abolish or substantially review section 18C of the Racial Discrimination Act. Senators may recall that 18C became almost a household word following the prosecution of a columnist, Mr Andrew Bolt, under section 18C of the act in 2011. At the time, the then Prime Minister said that it was the coalition's view that freedom of speech is very, very important, and it was important to ensure that we did not have racism in this country. Mr Abbott said, on behalf of most coalition parliamentarians at the time, I think, that we believed that Mr Bolt should not have been prosecuted under that section. So this issue has been around for a long time, but particularly since it hit the headlines at the time of 'Boltgate'.

Following the 2013 election, the coalition did indicate that there would be legislation introduced into the parliament that year to ensure that the Human Rights Commission carried out the role that it was designed for. It was the view of the government then that the commission was being too narrow and selective in its view on human rights. At the time, the government said that it was going to enact some structural reform that the commission president herself had been for looking for.

My only regret is that it has taken this long to get to a review of section 18C. I pause to think what would have happened had the government pursued its intentions back in 2014, rather than delaying till now. Perhaps Mr Leak's untimely death might not have occurred. Perhaps the university students who were dragged through an intolerable couple of years of their lives might not have been in that predicament, had the government moved on that review following the 2013 election, as we had indicated at the time. I understand the reasons for that, but there was clearly building, within the Australian community, an understanding that 18C could not stand, because of the way it had been interpreted in the past. This was reinforced by the QUT students case, the facts of which Senator Bernardi has just mentioned and which I will not repeat. But to most fair-minded, ordinary, average Australians—the reasonable Australian—that was an outrageous abuse of power by the Human Rights Commission, and it drew attention to the need for reform.

It was such that, as Senator Bernardi said, he introduced a bill that was co-sponsored by—from memory—12 or so other senators, of which I was proudly one, to remove the words 'insult' and 'offend' from section 18C of the Racial Discrimination Act. That was, as I recall, a bill that had the support of a number of government senators and a number of the crossbenchers. I am fairly confident that I can say Senator Leyonhjelm was one, and I suspect Senator Hinch might have been one of those who co-sponsored that bill as well. It was really the outrageous application of 18C in the QUT case that caused that coming together of minds that saw the need to change.

One of the most outrageous actions of the Human Rights Commission in the QUT case was, of course, that a number of young students were accused of racial vilification in what I think most Australians would think was a fairly simple comment—again, Senator Bernardi has given the details of that—but these students were not even told about it for some 18 months. That defeats one of the basic principles of natural justice: if you are accused of something, you must at least be told about it and must be given the right to mount your defence. In the case of these young students, they were not even told about it. So, for 18 months, they lived their lives unaware that they could be dragged before the Human Rights Commission and, worse, they could end up as respondents in a lawsuit for $250,000, which none of them, as law students, would have had.

In fact, one student, when he did first learn about this, was so petrified at the prospect of having to pay $250,000 in damages plus legal costs that he took the easy way out—and I do not blame him—and paid $5,000 go-away money, just so the complainant would not proceed in a legal suit against him. The others, fortuitously, decided to fight it, and in that they were assisted by one of Australia's best senior counsels, Mr Tony Morris, who, as I understand it—I am not privy to this, of course, but I understand from news reports—did the work for free. All congratulations go to Mr Morris for standing up for the right of freedom of speech by helping these young people.

The Human Rights Commission, I repeat, for 18 months did not even tell the people being accused that they had been accused. In that intervening period, the tracking of some of the evidence that may have been available about emails that had passed from one party to another party to another party had been lost. Of course, when the subsequent civil lawsuit got to the courts—these are my words, not the judge's—the case was laughed out of court. I understand that costs are being awarded against the complainant—unlikely, though, ever to be paid. That is the background to this whole sorry saga. The QUT case particularly galvanised public support for the move to have some review, some redress, some amendment and some further consideration of 18C.

And then we all know, because it was in relatively recent times, the Bill Leak cartoon—a very graphic cartoon, a very telling cartoon, not a racist cartoon at all. No-one could suggest that that was racist except the Human Rights Commission. One of the commissioners—although he denies it and has done so at a couple of the committees that I have presided over—it is clear, was letting people know that if they were offended they should contact him or contact the Human Rights Commission. If they did, he then made the point, rightly, that he was not the one who determined it, but his colleague the President of the Human Rights Commission would become judge and jury of a complaint which one of the commissioners at best advertised and at worst encouraged to be made. No matter where you are in Australia—other parts of the world might be different—no-one could consider that that was fair and proper practice.

Hence, the government, somewhat belatedly, but better late than never, some might say—although I am not sure that Mr Leak's family would say that—has brought forward legislation to address this particular section. But it did not do it overnight. The government set up an all-party joint committee of the parliament that deliberated—I think—for over two months, had a number of meetings, assessed the evidence, read all of the submissions, discussed what the committee's conclusion should be and came forward with a very good report under the chairmanship of Mr Goodenough MP. The committee decided to take the view that there were several ways that this could be addressed and gave the government—because they were reporting to government—the option of several ways to address this. They also made some very sound and strong recommendations as to the process that should be followed, some of which, I have to say, Professor Triggs had spoken about in one of the estimates committees before which she appeared. And so the government considered that report that had been carefully put together by members of that committee and came forward with a piece of legislation which was then referred, as I said earlier, to the Legal and Constitutional Affairs Legislation Committee, which I chair, for a brief look at that particular bill being proposed by the government.

It was not a terribly complicated piece of legislation from the government. It had been, as I said, spoken about for almost four or five years. Everybody had argued it back and forward. The joint committee had looked at it over a couple of months or more. And so the Senate referred the bill, when it came to this chamber, to my committee to have a quick look to see whether it was an appropriate bill and one that should be supported by the parliament.

The committee did call submissions quite quickly. We were not really interested in the substantive issue of 18C, because another committee of this parliament had already spent two months going through that in very fine detail. We wanted to look at some of the actual provisions of the bill and to see if there were suggestions that could be made to improve the bill, understanding that it was the government's intention and the government's prerogative to bring a bill forward as the government saw fit. The committee did take evidence over the course of last Friday morning and had a number of written submissions, and we relied heavily on the hundreds of pages of Hansard evidence given in the other parliamentary committee that had looked at this very carefully.

I should mention in passing that there was some complaint that not everybody who wanted to appear before the committee was able to appear. The Institute of Public Affairs was one of those. They wanted to come and appear, but the committee said, 'No, we've selected a narrow group of people to address the important issues, and that's what we're going to do.' We had the Human Rights Law Centre or the Multicultural Legal Centre—I have got it somewhere here in my notes—and they wanted to bring along an Indigenous group. The Labor Party made some big issue about that. These groups had all had the opportunity to put their point to the other committee, and my committee came to the conclusion that, if you invite groups of people knowing that there are different groups of those people who have one view and others that have another view, you start repeating what the previous committee had done. So we decided to restrict it.

The committee found that the bill would make overdue reforms to the Racial Discrimination Act, strengthening the protections against hateful speech based on race, colour or national or ethnic origin on one hand and at the same time enhancing the rights of freedom of speech that all Australians enjoy.

In its consideration the committee noted that the term 'harass' had been recommended by the joint committee that had dealt with this committee for some time. The committee thought that using the term 'harass' was an appropriate broadening of the scope of the section in a way which did not impinge upon legitimate freedom of speech. The committee went on to say that some of the recommendations of the joint committee report included many that were instigated at the request of the commission itself to improve administrative function and government, but the committee in its wisdom also thought that the government should consider some amendments to this bill before us today. Whilst we did not actually recommend the amendments, we did suggest that the government should contemplate that the bill should be extended to existing as well as new complaints. Existing complaints that were in the system, the committee thought, should probably be covered by this amending bill, and we have asked the government in our report to have a look at that and to see whether they think the government might be able to amend it accordingly.

We also considered that it was worthwhile drawing the attention of the government and the parliament to a particular issue for consideration, and that was to improve the future interpretation of some of the bill's provisions. In the public hearing some witnesses argued that the term 'harassment' was not sufficiently defined in the explanatory memorandum. Given that the term was central to the amendments made by the bill, the committee considered that the government could consider explaining this term more fully so as to give direction to interpretation into the future. That is the matter which Senator Bernardi also mentioned in his contribution, and I believe Senator Bernardi intends to move some amendments towards that. We will hear those debated later on, but, for the moment, the committee has asked the government to have a look at that and see whether a comment in the explanatory memorandum could be made that would better define 'harassment' and 'harass'. Senators will know that the explanatory memorandum and the second reading speech can well be used by the courts later on as an aid to interpretation, and that is why the committee thought that a neater way of dealing with it rather than through Senator Bernardi's legislative proposal might be for the government to mention this in some amended explanatory memorandum or in a second reading speech.

With those couple possibilities, the committee which investigated this bill quite fully was very keen in its recommendation that the bill should be passed, and I urge the Senate to follow the committee's recommendation.