James Paterson (Victoria, Liberal Party) Share this | Hansard source

It is a pleasure to be here this morning to speak on the Racial Discrimination Law Amendment (Free Speech) Bill 2016. I thank my colleague and friend Senator Leyonhjelm and his co-sponsors for putting this important bill before the Senate. It is a bill which very closely reflects my own view on this issue, but senators will note that I am not a co-sponsor of this bill. Instead, I am a co-sponsor of the other bill seeking to address this matter, put forward by Senator Cory Bernardi. I want to spend a little bit of time this morning explaining why I have made a decision not to support Senator Leyonhjelm's bill—or, rather, not to co-sponsor Senator Leyonhjelm's bill—and why I have instead decided to support and co-sponsor the other bill.

First, I want to explain why I think that what Senator Leyonhjelm proposes is very important and in many ways best addresses this issue. As Senator Leyonhjelm pointed out in his speech, only his bill offers a guarantee that cases such as the Andrew Bolt case—but also the other cases that we have seen before the courts in recent times, including the QUT case, including the Bill Leak case and including his own case against the journalist Mark Kenny—could not proceed again in the future. Only by repealing the provisions of the act in their entirety can we rest assured that these cases will never be repeated in the future.

Having said that, I cannot see any prospect of this bill passing this parliament. I think one of the lessons from the previous attempt at reform under the previous Prime Minister was that there is no point going through another symbolic loss. If we are able to find a path through this parliament, and particularly this chamber, for a reform which does not go as far as Senator Leyonhjelm's bill but will go some way to addressing this issue, then I think we should focus our attention and our energy on that.

But there are other reasons why I think Senator Bernardi's bill, of which I am a co-sponsor with 20 senators in this place, has merit. This act and this matter are very important to those of us who believe in freedom of speech. It is important because it has affected people's lives, but it is also important because it is a symbol for us of what it means to live in a free society, in a pluralistic society, in a tolerant society, in a liberal society. For us, while ever this act exists in its current form, we feel that we do not live in a free society and that our freedom is not protected. That is why it is important to us.

On the other side, though, there are people who see it as a symbol in a different way. They see it as a symbol of what it is like to live in a multicultural society, in a harmonious society, in a community which is safe for them and their families. They very clearly told us during the previous reform process that getting rid of all of 18C, or almost all of 18C, would make them feel unsafe in Australia and make them feel like they do not have protections against hate speech. Nobody who is proposing reform in this area wants any fellow Australian to feel unsafe or to feel unprotected.

My own view is that 18C is a very imperfect protection against racist hate speech. I would much prefer to rely on, as Senator Leyonhjelm said earlier today, the goodwill and good nature of Australians to call out racism, to identify those who peddle it and to hold them responsible for it. I would much prefer we used that process. I also believe that there are extensive protections against vilification, particularly at the state level, in this country. In some ways, those laws are much better targeted against the kind of abuse that no-one wants to see, the kind of abuse we hear about from time to time in the street or on public transport—the awful, vile abuse that some people have experienced. I think our state anti-vilification laws better target that kind of behaviour and in many ways offer better remedies, including in some cases, in some states, potential criminal penalties for the behaviour, which 18C does not.

Nonetheless, we have heard that 18C is regarded as an important symbol of the protection of living in a harmonious society and feeling safe in our community. I understand and I respect people who put that view, and that is why I have come to the view that a compromise option is the most reasonable path forward. It is a path forward which will offer no perfect protection of free speech but certainly an enhancement and an improvement regarding free speech. At the same time, it will retain some important limitations on free speech which will help make some members of our community feel that they are safe.

I want to go through some of the most prominent cases involving this law in recent years, because I think they help show us a path forward and show what kind of reform in this area will work, could work and may not work. The case which has brought this to the widest public attention in recent times is obviously the Queensland University of Technology students case, recently resolved in the Federal Circuit Court with a judgement by Judge Jarrett. I commend the judgement to all senators and others interested in this case; it is a very interesting, thoughtful and quite extensive judgement.

There are a couple of important things about the judgement. One is that this was not a close call. This was not one of those cases where there were reasonable arguments on either side and where it came close, with the judge ultimately coming narrowly down on one side. It was comprehensively dismissed. It was found—I am using my own words and not the judge's—to basically have no merit at all. That was the right decision. I am pleased that the court made the decision, although I am troubled by media reports this week that there may be an appeal in this case and that it may not yet be over. But we must allow the legal process to flow through and see what comes of that.

There are other really important things about this case. As every senator and as many in the community who have followed this would know, this is a case which took 3½ years to resolve—3½ years elapsed between the alleged instance of racial discrimination and the court handing down its decision exonerating the students who were accused of discrimination. Under anyone's measure, that is a torturous and long legal process—a legal process which served neither the applicant nor the defendants well in this case. The person who made this complaint is as entitled to have it speedily resolved as are the people who are subject to this complaint, but I am particularly concerned and particularly sympathetic to what the students in this case endured.

They endured having their reputations smeared and damaged in the media. Many of them feel that their career prospects have been damaged by this case, even though they have been exonerated. It was an incredibly stressful time for them and their families and, frankly, I think it has not reflected very well on the university or on the Human Rights Commission, which I will come to in a moment. A particular failing of the Human Rights Commission in this case was that 14 months elapsed between the case complaint being made and the students being notified. I am pleased that the Human Rights Commission President, Gillian Triggs, has appointed an external lawyer to review the Human Rights Commission's conduct in this case, because I think it will reveal that they have failed both the applicant and the respondents and, particularly, that the students were grievously harmed by the handling by the Human Rights Commission in this case.

They were given three days notice that they had to attend a compulsory conciliation. Because of that short notice, many of the students were unable to attend, many of them were unable to arrange legal representation, as they are entitled to, and many of them felt completely railroaded by the process, with little prospect of successfully defending themselves. That is incredibly regrettable. It is fortunate that these students had the benefit of independent pro bono legal representation—excellent legal representation. Had it not been pro bono, as their lawyers have offered, then they would have been up for an estimated $600,000 to $700,000 of legal fees to defend themselves. No student has the capacity to defend themselves to that tune. As we know, some of the students did not even have the capacity to reach a confidential financial settlement with the applicant, as was requested by their lawyers.

That is worth reflecting on too. We have heard about Kyran Findlater, one of the students in the case, who ultimately agreed to pay $5,000 to the applicant in the case to be removed from the action so that he would not have to go to court. Seeing what the other three students who decided to contest the case went through, it is hard to question Kyran's judgement in that. That seems like an entirely reasonable thing. He did not want to go through the pain and suffering that the others did. It was a terribly difficult financial decision for him and a huge burden. It is particularly sad, given that we now know that the case was dismissed so comprehensively—that he might very well have been able to successfully defend himself in that case.

One of the reforms that has been suggested, as either an alternative or a complementary measure to reforming section 18C, is to reform the processes of the Human Rights Commission. A very sensible and thoughtful proposal has been put forward by my colleague in the other place, Julian Leeser. Mr Leeser's proposal seeks to address the appalling way in which the Human Rights Commission handled this case, to ensure that future cases are much more speedily resolved. While I support that, I do not support it in isolation—because the efficient administration of a bad law is still the administration of a bad law. I believe the law itself needs to change.

Comments that Gillian Triggs has made really underscore why that is important. On 7.30 a couple of weeks ago, when she was interviewed by Leigh Sales, Professor Triggs was asked why she did not use the commission's existing powers to dismiss the QUT case immediately when the complaint was made. The Human Rights Commission does have the power to terminate a case that is without merit, that is vexatious, that does not raise human rights concerns. It did not do so, even though a court subsequently found it to be a case lacking in merit. The reason it did not do so, we know now, is that Gillian Triggs believed it was a case of substance. Her answer to Leigh Sale's question was that she did think it was a case of substance. If it is the view of the Human Rights Commission, its president and her delegates, that a case as flawed and as weak as the QUT case has substance, and is worthy of proceeding first to conciliation and ultimately to the courts, then I am not confident that any power given to the Human Rights Commission to more efficiently administer this law would ensure that cases like the QUT case never happen again.

Another case which has brought this law to public attention is the Bill Leak case. This is a particularly troubling case as well. I am pleased that media reports suggest that the complainants in this case intend to withdraw or are in the process of withdrawing their complaints, but that does not mean that Bill Leak has not suffered because of this law. Bill Leak and his employer have had to engage lawyers to defend him, all because he drew a cartoon. It was a cartoon which challenged many people, which upset many people and which maybe even offended or insulted some people. But, in a free country, do we really think that a cartoonist drawing for one of our major newspapers should be required to go to a government body—in this case, the Human Rights Commission—and justify what he meant by his cartoon, why it was not racist, and why he was not engaging in discrimination? Do we really think it is appropriate for other public servants—the Race Discrimination Commissioner, Tim Soutphommasane—to be actively touting for and soliciting complaints, effectively prejudging the case of Bill Leak? But I am pleased that that case has been dismissed.

Perhaps the case that is most famous of all is the 2011 case against Andrew Bolt. It is the one which, in the view of many people, activated this law, brought it to public attention and allowed it to be used as it has been subsequently used in further cases. There are so many things to talk about in the Bolt case. I will not bore the Senate by going over all of that old history, except for one really important point about this case. It is said by many that section 18D provides an effective defence for freedom of speech. It is also said that those of us who want reform to 18C ignore 18D, or are unwilling to talk about 18D. Can I tell you, Acting Deputy President Reynolds, that that is not the case for me. I have talked about it dozens of times, and I know many of my colleagues have too. I have debated it in many interviews with journalists, and I am going to talk about it here today.

Defenders of this law often say that 18D is a sufficient defence for free speech and that the Andrew Bolt case proves that. They say that Andrew Bolt was found not to be eligible for the defence listed in 18D—in other words, he was not able to have his freedom of speech protected by the law—for a very good reason. That reason is that he made errors of fact in his article. And it is true, Andrew Bolt did make errors of fact in his article. We can debate another time whether it is a good thing in a free society to have a judge deciding that errors of fact mean you are not entitled to free speech. But that was not the only reason the judge found that Andrew Bolt was not eligible to use the defence of 18D. I encourage anyone who has not read the judgement in the Bolt case to do so, because there is an extended and fascinating discussion about the tone of Andrew Bolt's article.

The second reason that the judge found that Andrew Bolt was not eligible for free speech was the tone in which he wrote his article, including the fact that he used sarcasm, including the fact that he used gratuitous asides, including the fact that he had written things, allegedly, between the lines. So we have an instance in this country where, if a judge does not like your tone, does not like your use of sarcasm or gratuitous asides and believes you have written things between the lines—which, of course, you cannot do—you are not eligible for free speech. Even if Andrew Bolt had made no errors of fact in his articles, it is entirely possible that he still would have been found not to have been eligible for the defence of free speech under 18D because of his tone. That is an incredibly troubling thing.

I think the Andrew Bolt judgement will be interesting if Senator Leyonhjelm's case against Mark Kenny at The Sydney Morning Herald proceeds, because it could be said that Mark Kenny in his article used sarcasm, it could be said that he used gratuitous asides and it could even be said that he had written things between the lines about Senator Leyonhjelm and others. My view is that cases like the Mark Kenny case should not be able to proceed, should not be heard by the Human Rights Commission, should not make their way to court, but it may well be. A complaint has been made, the process is underway and it is yet to be determined where that case will go. It is clear that 18C allows that to happen and it is not clear that 18D would be a sufficient defence for Mark Kenny in this case, just as it is not clear it would have been a sufficient defence for Bill Leak. Many say that it would have been, but that is unknowable. The case did not get to court, and we do not know what the judge would have found.

Another senator in this place—our new colleague from Victoria, Senator Kitching—recently said when she was interviewed on The Bolt Report that she thought the judge that presided over the Bolt case was a relevant factor in the way in which the law was interpreted. That is an incredibly worrying thing. The quality of justice and the outcome of the decision that you receive in our courts should not depend on the judge that you receive; it should depend on the law as it is written. If it is the case that Labor senators opposite believe that all we need to ensure that laws are properly upheld is the right judges sitting on the right cases, we have a very serious problem indeed.

Another challenge to those of us who believe in reform is the question of what it is that we cannot say today that we would like to say. I would really like to respond to this because there are a couple of important points. One thing is I would like students such as those at QUT to be able to vent steam on Facebook and not spend 3½ years defending themselves in court for having done so. I would like cartoonists to be able to draw cartoons without having to go to a government body and justify why they drew their cartoons. I would like journalists to be able to express opinions and write articles on controversial issues of public debate without having to defend themselves in court. But the truth is we actually do not know what it is that cannot be said by this law, because we cannot be confident what will and will not offend, insult, humiliate or intimidate someone.

There is no way of knowing that Mark Kenny, in writing his article about David Leyonhjelm, could have reasonably understood or expected to be taken to court as a result. There are others here today and Australians out in the community who do not know what they can and cannot say because this law is not clear what would achieve the measure of 'offend' or 'insult'.

Finally, even things which are unpleasant and awful to hear are worth hearing because we live in a society where people do have different views and there is value in hearing what others have to say even when we disagree with it. I personally would much rather know what people's beliefs are than have them hold onto them and keep them in a dark and deep place in our society. We will have no opportunity to challenge them if that is the case.

I want to end on one note. Reform of 18C is something which has attracted support from across the political spectrum, from people including David Marr, Julian Burnside, Paul Howes, Jonathan Holmes and Jim Spigelman. It has attracted support this time around from people who opposed it previously such as Warren Mundine. It has attracted support from people who have been affected by discrimination and who have been victims of racism such as Robert Magid, the publisher of The Australian Jewish News. The accusation made in this debate that the only people in favour of reform are people of a certain age, a certain ethnicity or even a certain gender is utterly false. Support comes from across the spectrum, and ignoring those people who have suffered discrimination and who do support reform is an awful thing to do. They have just as much right to participate in this debate. Their opinion is worth just as much as everyone else's. I commend them for their courage and their advocacy in this instance. Even Gillian Triggs has agreed that we have a problem with not just the Human Rights Commission processes but also the law. I commend this reform process to the parliament.