Senate debates

Thursday, 2 October 2014


Racial Discrimination Amendment Bill 2014; Second Reading

9:32 am

Photo of Bob DayBob Day (SA, Family First Party) Share this | | Hansard source

Today I continue my remarks on the Racial Discrimination Amendment Bill 2014 so that the Senate may have the opportunity to consider this crucially important matter. Freedom of thought, freedom of belief, freedom of opinion and expression, and freedom of the press are fundamental to the rule of law. For the rule of law to function properly, a country's citizens must be able to observe, comment and critique the existence or non-existence of laws, the making of laws and the application thereof in the court system.

These freedoms are so critical to the very existence of a strong democracy and an acceptable way of life. They are recognised in international treaties and conventions, to which Australia is a party. At the same time these freedoms I refer to must be both well coupled and well balanced with protection against defamation, vilification, obscenity, sedition, copyright, commercial confidentiality, contempt of court and national security.

When the Racial Discrimination Act 1975 was originally passed by parliament, the intent of the legislation was obviously the prohibition of racial discrimination and, in particular, to make provision for giving effect to the International Convention on the Elimination of All Forms of Racial Discrimination. However, subsequent amendments to the act have in fact created a serious imbalance between freedom of speech and racial discrimination. In particular, section 18C of the act restricts even objective and fair-minded opinion and expression.

The amendment proposed by the Racial Discrimination Amendment Bill is very minor. It simply removes the words 'offend' and 'insult'. Those other words 'humiliate' and 'intimidate' remain. If this bill is passed, the original intent of the act will be restored and both freedom of speech and the protection against racial discrimination will be able to coexist in proper equilibrium. Reasonable people do not support racial discrimination; however, reasonable people do support and defend their very precious freedom of speech, expression and opinion.

I would like to indicate that I intend to be the person moving conclusion of the debate, not one of my co-sponsors, and further indicate that it is my intention to adjourn debate at the conclusion of the allocated time today so that other senators may have the opportunity to speak on the bill at a later date.

9:35 am

Photo of Cory BernardiCory Bernardi (SA, Liberal Party) Share this | | Hansard source

Today I rise in support of the Racial Discrimination Amendment Bill 2014 which seeks to remove two words, 'insult' and 'offend', from section 18C of the Racial Discrimination Act.

The motivations behind my advocacy for this bill are mirrored in some of the strongly worded phrases from colleagues like Senator Brandis when he said:

Section 18C, as presently worded, has no place in a society that values freedom of expression and democratic governance.

And also these words by our Prime Minister:

Expression or advocacy should never be unlawful merely because it is offensive.

I agree wholeheartedly with them. It defies common sense for it to be illegal to make statements that are likely to insult or offend an individual or a group.

So I stand proudly here today knowing that I have devoted much of my time in public life to defending free speech. This defence has consisted mainly of my opposition to the toxic, destructive doctrine of political correctness. My co-sponsoring of this bill is a continuation of this fight. It is yet another episode in the battle to preserve the fundamental freedoms we so often see under attack in this country. These threats are sometimes well-intentioned but, despite this, they have damaging implications for our way of life and for the freedoms we enjoy.

Before those on the other side of this debate or the leftist commentariat dismiss my contributions as the ranting of some conservative, let's have a look at exactly who supports changing section 18C. I want to quote again:

My personal view is that 18C probably reached a bit far. The mere fact that you insult our offend somebody probably should not of itself give rise to legal liability—

they are the words of human rights lawyer Julian Burnside QC suggesting that 'speech which "insults a group" is arguably going too far' and that this part of the act might need 'a bit of finetuning'.

Let's look at another supporter, David Marr, a person who I would hazard a guess does not agree with conservatives on many things. Mr Marr has said:

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

…   …   …

Offence and insults are the everyday reality of free discourse.


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

Even former AWU Secretary, Paul Howes, called the racial discrimination act an:

Orwellian law that, probably, should not be there.

Then we have Jim Spigelman, the ABC chairman and former Chief Justice of the New South Wales Supreme Court, who says:

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.


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

Even ABC journalist Chris Uhlmann has said that 18C is:

… an insidious, creeping assault on free speech.

Mark Leibler from the Australian Jewish community has said that:

If all the government wants to remove the word offend, I think at the end of the day everyone could live with that.

Journalist David Penberthy wrote earlier this year:

The changes should be supported by people who believe in the importance of freedom of expression.


There's a difference between being offended by a reasonably held view, and being the victim of a sustained and generalised campaign to smear your collective name.

I also recall Senator Bullock's opinions in his first speech in this place. He said:

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.

That is a brief and in no way exhaustive list of people who may disagree with Liberals and conservatives on something or all things, yet we have managed to find common ground on the need to reform section 18C of the Racial Discrimination Act in defence of freedom of speech. They join a list of people like Janet Albrechtsen, Piers Akerman, Nick Cater and John Roskam, just to name a few, who are joined together in seeking to strengthen free speech and bolster the ability of all Australians to get involved in the battle of ideas.

The broad political and public support for freedom of speech is also reflected in the co-sponsors of this bill: four senators from three different parties. I applaud my friend and colleague Senator Day for initiating this bill. I am grateful to Senators Leyonhjelm and Smith for their courage in co-sponsoring this bill along with me. It certainly reflects well on and it is a credit to this parliament and this chamber that representatives from three different parties can come together to protect every Australian's right to free speech.

I have to confess that, in all honesty, I was disappointed by the government's decision to drop its plans to repeal section 18C of the Racial Discrimination Act. Throughout 2012 and 2013, when Leader of the Opposition, the Prime Minister said that 'the coalition would repeal section 18C in its current form'—that we would 'change section 18C of the Racial Discrimination Act so that merely giving offence is not a ground for a successful prosecution'. We took that to the Australian people at the last election. I do understand that governments have competing priorities to deal with and sometimes concessions have to be made and priorities realigned. But I did sincerely hope that our nation would be mature enough to handle discussions about counter-terrorism laws, on one hand, alongside honest debate about freedom of speech, on the other hand, and that one would not necessarily push aside the other to accommodate the due concerns of a small section of our community. But, in the end, that decision was made, and it has resulted in this private senators bill being debated today.

The bill being debated today does not go as far as what was originally proposed by the coalition. It provides some finetuning, if you will: the simple removal of two words—and I hope that the fact that it is so simple encourages more of my colleagues to support this bill should it come to a vote. Currently, section 18C goes beyond being a mere complaint. It goes beyond expressing one's outrage at something offensive. It actually makes it illegal to offend someone. It prohibits people saying things even if there is a likelihood that those words might cause offence to or insult another person. Again I quote the journalist David Penberthy. He said:

… it is possible for people to arc up about any comments which they find offensive, even if those comments are reasonably held and based on fact.

People can still find themselves taken before a legal tribunal or a court. It is simply absurd, to my way of thinking, that you could be hauled in front of a court and a judge because someone has taken offence at what you have said. It is grounds to hold someone accountable in law simply because someone else's feelings hurt.

I put it to you, Mr Deputy President, that section 18C of the Racial Discrimination Act has created an Orwellian environment. This is a climate in which the tyranny of political correctness has become the price of freedom. It has become a tactic of the socially progressive agenda to decry something as offensive merely to throw it out of the public arena.

I believe this bill provides an appropriate balance between free speech and social order. I say again: it only removes two words, 'offend' and 'insult'. It is does not touch other parts of section 18C—namely, that it is unlawful to 'humiliate or intimidate another person or a group' based on their race or ethnicity. Those provisions will remain in place. I just want to make that clear. It will remain unlawful to humiliate or intimidate someone based on their race or ethnicity.

What Senator Day has initiated here is, I think, an elegant solution that strengthens free speech while also addressing the concerns of those people who thought that the government's earlier attempts in this space went too far. I would like to imagine, and the evidence suggests, that most fair-minded people should accept this position because freedom of speech is one of our most fundamental rights. I will not, now or ever, walk away from defending a commitment to free speech in this country.

Through this bill, we are defending an essential principle of our democracy. People, whatever their background, whatever their culture, whatever their religious beliefs, should be free to say what they think, and this bill strengthens all Australians' ability to do that. The best way to counteract bad ideas, quite frankly, is to shine a light on them, and you do that best through free debate rather than by pushing them into the shadows. As Janet Albrechtsen put it:

… that's the point of free debate. It is the single most effective mechanism for disposing bad ideas.

So, if you are offended by what someone says, you can say so. You can call that person out and put your opposing views forward. Silencing opposing views and views that you might not like only serves to push unsavoury ideas underground, where they fester away and become a bigger problem later on. It is much better to shine the light on them right now and expose them for the garbage that they are, and that is a true virtue of a harmonious society.

Limiting free speech only hampers our right to hear others' opinions and decide for ourselves. That is why free speech is an essential characteristic of free expression—because it renders a diversity of debate. It renders debate vibrant and alive. It is healthy for any democracy. Without that debate, we cannot make informed decisions on policies, on values and on thoughts. And I do not want that for our country.

An editorial by The Australian late last year said:

A core duty of citizens in a free society is to welcome debate on contentious subjects. A mature country that is comfortable with its own laws, cultures and traditions would defend the right to express views that some of its citizens may not agree with.

I like to think that Australia is mature enough to defend free speech in this manner. After all, meeting challenges head on is the best way to deal with them, and that is why this bill is so important.

Australians simply should not be taken to court for simply offending or insulting someone. Other safeguards are in place within this bill, the Racial Discrimination Act and a myriad of other acts for more strident offences, but causing mere offence should not be grounds for hauling someone before a judge. The Prime Minister once said:

… if free speech is to mean anything, it's others' right to say what you don't like, not just what you do.

Today, with this bill, we want to put more meaning back into free speech. The Attorney-General has said:

By making the reasonable likelihood of causing offence or insult the test of unacceptable behaviour … section 18C is a grotesque limitation on ordinary political discourse.

Today, with this bill, we want to help end that limitation.

In conclusion, I again want to quote from the Prime Minister. He said:

A 'hurt feelings' test is impossible to comply with while maintaining the fearless pursuit of truth which should be the hallmark of a society such as ours …

With this bill, we seek to maintain that fearless pursuit of truth. The famous saying often attributed to Voltaire sums up the essence of what this bill is seeking to protect. It is one we hear often but one that rings just as true today as when it was first uttered many years ago: 'I disapprove of what you say, but I will defend to the death your right to say it.' This bill seeks to defend that great principle of our democracy, and I commend it to the Senate.

9:49 am

Photo of Jacinta CollinsJacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | | Hansard source

I rise to speak on the contained in the Racial Discrimination Amendment Bill 2014. I do not think any senator here holds the view that these issues do not warrant very careful consideration. As we have said in an earlier debate on these matters, the provisions have been in place for around 20 years. I am aware even before entering political life of some of the debate about whether the balance was quite right. So, Senator Bernardi, in part I take exception at the suggestion that the debate here is the tyranny of political correctness, because I hold a view contrary to yours and I support the Labor Party's position that we should not attempt to weaken the provisions as they currently apply.

There is not a tyranny of political correctness occurring at the moment. Instead, we have a situation where, fortunately, the Attorney-General at the Press Club yesterday indicated a somewhat new perspective on these issues, which I think is important to highlight. He told the Press Club yesterday that, in the face of a rising risk of terrorism, there could be no greater error than for Australians to demonise our fellow Islamic citizens. While I accept that there is a genuine debate about these issues, unfortunately, at this time, there are those who are happy to use this debate as a means of fanning prejudice—and that is something we must not do.

As I said, in the past I have weighed these issues and concluded well in the past that we do indeed have the balance fairly right. I am a Victorian senator. I live in Melbourne. These issues have, as I said, flared in the past and we have addressed them. We have considered whether we have the balance right, and in my home and in my community I believe there is general acceptance of that. More recently, with the draft circulated by the Attorney-General, broader community debate concerned these issues, and that community debate, I believe, demonstrated well beyond the Melbourne community that there is a consensus that the current balance is correct. While I appreciate there are a handful of senators in this place wanting to redress these issues again, I take exception at the suggestion from Senator Bernardi that what we are dealing with is a tyranny of political correctness, because it is just not the case.

I will come in a moment to why it would be better to see some greater leadership in how we deal with some of these issues; but, before I do, I want to address one other issue raised by Senator Bernardi in his contribution, because he suggests to us that just removing 'taking offence; is no big deal, that it is not an issue. I want to share with you an anecdote—gosh! it is almost 30 years old now—about taking offence. In my youth it highlighted to me that sometimes, indeed, the law is an ass. I was on my way to work one morning, taking a train in inner Melbourne, and there was a flasher near the station. I thought, 'That's a bit concerning.' I was not particularly offended by it, but I was aware that there had been reported rapes in the vicinity of that station. So I took time out that day to attend the police at Flinders Street Station, and I was astounded to hear from the police that they were not prepared to take a statement from me about this incident unless I was prepared to say 'I was offended'. So please do not pretend that simply removing 'taking offence' is insignificant in legal terms, as Senator Bernardi did, because it is not. The notion of taking offence moves through our laws in so many interesting ways and, on that occasion, it demonstrated to me that sometimes our law is an ass. We could not address personal safety and security issues for women without me being prepared to say 'I had taken offence'. That is simply bizarre.

So I thought that on this occasion I would go and look at some of the applications—perhaps those that are bit less notorious than the Andrew Bolt incident—and bring to the Senate's attention some of the uses of the provisions as they currently stand.

Before I do so, I will again reiterate the Labor Party's position: we indeed introduced section 18C and we will fight to retain it. We, along with many other Australians, have campaigned in the streets to protect it and we will vote in this parliament to oppose any attempt to weaken the vital protections it contains against the scourge of racist hate speech.

Section 18C is a critical element of Australia's antidiscrimination framework, which has served our country well for 20 years. It strengthens the rich fabric of Australia's successful multicultural community. Section 18C appropriately balances freedom of speech with the right of all Australians to live in dignity, free from bigotry and the destructive, divisive effects of racially-motivated hate speech. This is the Labor Party's position, and we are proud of it. As I mentioned, coming from Melbourne, I am particularly proud of the balance that we are able to achieve amongst a very vibrant, diverse community. As I said before, we have never wavered on these provisions and we will not. Almost two decades of experience has convincingly demonstrated that this is the right policy for Australia, and the community response to the draft highlights that further.

As we have seen, the coalition's position, though, is much less clear. Indeed, numerous senators have co-sponsored this bill, and it is now before us. It is been reported, though, that as many as 10 coalition senators wished to add their names to this bill, only to be overruled by the Prime Minister's office. So perhaps I should highlight that this is perhaps more than the handful that I first indicated.

But we in the Labor Party believe that Australia's political leaders ought to focus their energies on bringing people together and protecting social cohesion that underpins our proud and successful multicultural community. It is disappointing that some voices from within the coalition seem to feel that their energies are better directed at prosecuting an agenda of intolerance, bigotry, fear and hatred. I am sure that is not all senators who are involved in supporting this bill. I am sure that for some they have not yet worked through the issues I have in the past in assessing whether we have the balance right. But then, equally, at this point in time they fall easily into the trap, as highlighted by Peter Hartcher today in TheSydney Morning Herald, of working with those who really are only interested in fanning prejudice. And that is an association that I would encourage senators to think carefully about. If coalition senators are going to vote in favour of this bill they should be honest with the Australian people about what they are actually voting for. The contribution from Senator Bernardi simply referring to 'a limited view' about what the impact of taking offence out of the provisions would be and glib comments about the 'tyranny of political correctness' does not indeed do that.

Section 18C has been used to combat the vilest forms of hate speech; behaviour which the Labor Party believes has no place, not only in Australian society but in any civilised society. In the case of Jones v Toben, section 18C was used to combat infamous Holocaust denier, Fredrick Toben, who sickeningly claimed that there is serious doubt about the Holocaust actually occurring. He also claimed that it is unlikely that there were homicidal gas chambers at Auschwitz, that Jewish people who are offended by and challenge Holocaust denial are of limited intelligence, and that some Jewish people, for financial gain, exaggerated the number of Jews murdered during World War II and the circumstances in which they were murdered.

The Labor Party does not believe that this sickening attack has any place in Australian society. If coalition senators want to vote to support Fredrick Toben and his ilk, then the Australian people will judge them accordingly. It is easy to say that we should out these sorts of views and their exposure will diminish them, but I think that is far less than clear.

In the case of Hobart Hebrew Congregation v Scully, a Hobart woman was restrained from distributing hate mail in letterboxes and at a public market which described Jewish people as 'leeches' who were involved in 'destroying white society' and using 'predatory tactics'.

In the case of Campbell v Kirstenfeldt, a Perth man was found to have breached section 18C by repeatedly calling his neighbour, an Indigenous woman, deeply offensive racists names and telling her to go 'back to the scrub where you belong'. The abuse was often made in the presence of Campbell's family and friends.

We, in the Labor Party, say that this sort of behaviour has no place in Australia. Senators who vote for this bill are compromising the strong standards that we currently have that have been demonstrated by the outcomes of these cases under section 18C. But they are also contributing to a broader concerning issue. In his address to the Press Club yesterday, Senator Brandis has perhaps moved away from the notion that you have a right to be a bigot. I hope he has. I hope he has seen the error in what was hopefully a glib question time expression from the comments he indicated yesterday. I do not believe there is a right to be a bigot and I would be interested to see the vote in this chamber on the actual question.

As I indicated previously, I have weighed up these issues in the past and I do believe that the current provisions have the balance right. Now that I have heard some of the argument about how innocuous it would be to remove the notion of taking offence, I will revisit this and I will have another look at that point. As I highlighted from my experience, the notion of offence is deep within the law's consideration of many matters and it is, I think, a bit deceptive to suggest that simply removing the taking of offence will not compromise the standards as they currently exist.

I want to conclude on one point and that is a point I alluded to earlier about leadership. Where is the political leadership on some of these issues? I was taken back to this point when I read The Sydney Morning Herald today and Peter Hartcher makes the point that Tony Abbott has implicitly endorsed, he says:

their dirty, divisive, dogwhistle politics to appease them—

referring to two government members' plans around, on this occasion, the issue of wearing a burqa in Parliament House. Peter Hartcher says:

Instead of winking at their intolerance, a real leader would have shut them down in a moment of crisis.

But he has not. He has not been able to shut them down. A real leader would be in that position. Instead, what we have seen from our current leader in relation to section 18 C was the fanning of this issue in the lead-up to the last election. It was deliberately fanned. Looking at the Bolt case, the Prime Minister was more concerned about Andrew Bolt than about those who felt they had been vilified.

The coalition indicated that in government they would deal with this issue, and the Attorney-General distributed the draft paper—and I think Senator Bernardi, in commending Senator Day on the current provisions in this bill, seemed to imply that even he accepted the draft paper went too far. And it did. As I said before, the community accepted that they went too far. This was not my narrow but somewhat proud experience of community life in Melbourne; this was a broad, cross-Australian cry that, in response to the Andrew Bolt case, this government on this issue was going too far.

So, Senator Day, I will be interested in looking at the broader implications of removing 'offend', because I am convinced it is nowhere near as simple as Senator Bernardi has suggested. But at the same time I decry the lack of genuine leadership in this area. I believe that your intentions are genuine but, over the last 18 months, I have seen this issue used solely to fan prejudice—to fan prejudice to the extent that we saw in this place, in question time, the Attorney of all people say, 'People have a right to be bigots.' And we saw the outcry over that. Senator Day, I accept that there are genuine concerns about how these provisions have operated. I have watched them over the years, I have weighed them and I have assessed that we have generally got the balance right. I have not accepted reasonably glib contributions about how insignificant the removal of 'offend' would be and I am happy to look at those issues. However, my message to all of us is: be very careful; do not allow us to be used to fan prejudice here in Australia.

As I said, I decry the lack of leadership from our Prime Minister on this issue. He should shut down debates which will only fan prejudice, particularly as we look at issues around national security legislation. He should have shown stronger leadership earlier. He should not have fanned this debate. This should not have been an issue he campaigned on before the last election which has led to the situation where we were told we have 'a right to be bigots'. I hope to hear other senators in this debate disassociate themselves from that view. I do not believe any member of this Senate genuinely believes that here in Australia we have a right to be bigots.

I accept that the balance of these provisions are something that it is appropriate for us to consider, but it is not a new debate. It is not something that has not been considered over the years and, in my view and in the Labor Party's view, we do indeed have that balance right. The Prime Minister should be exercising more leadership to promote social cohesion and fairness and the Australian way of life, rather than allowing coalition senators to join here and fan the prejudice— (Time expired)

10:09 am

Photo of David LeyonhjelmDavid Leyonhjelm (NSW, Liberal Democratic Party) Share this | | Hansard source

I speak in support of the bill to remove 'insult' and 'offend' from section 18C of the Radical Discrimination Act. Mr Abbott says we need to adjust the delicate balance between freedom and security. Let me give him a tip. When you make decisions that authoritarians such as jihadists would approve of, like preventing people from saying what they think, when you threaten to haul journalists before courts and into jail and when you introduce provisions that give your security organisations the power to snoop on your own people, you have got the balance wrong. In fact, whenever you throw away the freedoms others have fought and died for, you have got the balance wrong. Mr Shorten says this is not the time to be removing the government censorship that is 18C on account of maintaining national unity. Sorry, Mr Shorten, but free speech does not have a timetable. Either you believe that we are entitled to say what we think or you don't. Either you believe this is a free country or you don't. Either you get the first line of the national anthem or you don't. In times of trouble true leaders speak for a nation about what they stand for, not which freedoms they have decided to give away.

I fear that Mr Abbott and Mr Shorten are not true leaders. When they talk about freedom there is always a 'but' to be found nearby. They believe in freedom but not if someone might have their feelings hurt. They believe in freedom but not all the time. They believe in freedom but will vote the same way that barbarians would vote. A lot of people, I suspect, are sick of hearing about democracy's 'but'. Those, like Mr Shorten, who believe we need to keep 18C for the sake of national unity do not seem to understand that democracies were never meant to be places of unity. That is a feature of fascist and communist regimes and, dare I say it, Islamist regimes.

The difference that characterises a democracy is its greatest strength, because it means that propositions are put to the test of public deliberation. People who make national unity arguments in a democracy probably do not understand democracy at all. Unfortunately, when it comes to section 18C, opinions are protected from public deliberation, in part because people are considered too 'weak' or 'vulnerable' and somehow incapable of bearing too much reality. Of all the people in the world, surely Australians are not so fragile or so gullible.

Questions of Aboriginality and Australian identity are matters of great public importance. They should be debated on the basis of evidence. Likewise, the Palestinian question is a matter that also should be debated and assessed on its merits. The Andrew Bolt and Mike Carlton controversies illustrate the silliness of this uncommonly silly law. I have no time for racism and other types of vilification, but we cannot have a situation where important matters are closed off from debate because of the potential for someone to claim that they have hurt feelings. Both Bolt and Carlton may have made some errors, but the remedy for errors of fact is a correction, an apology or even defamation proceedings. Section 18C gives certain people an extra remedy based on an arbitrary characteristic, which is a departure from the rule of law. In short, it is not a bad time to repeal 18C in the name of national unity; rather it is a good time to repeal section 18C in the name of national diversity.

When the government first suggested changes to the Racial Discrimination Act much was made of the connection between offence and insult—words I wish to see removed from the act—and subsequent racial violence. But while vilification might incite violence, there is no evidence that to offend or insult someone is to incite violence against that person. Indeed what evidence we have shows the opposite effect, because words often serve to replace violence.

As the law currently stands, instead of issues being debated and ideas criticised, toxic attitudes are driven underground or through the wires of the internet. This implicitly justifies handing over increased powers to Australia's security agencies so that the speakers of various nasty words can be watched over by the powers that be.

If people were free to speak, there would be less need for such surveillance. We would all know which imams think young Australian Muslims should fight in Iraq and Syria and we would also identify those who believe all Muslims to be terrorists.

Racial incitement and racial vilification are crimes, because it is possible for a reasonable person to identify them and for evidence of their effects to prevail in court. Offence and insult, by contrast, should not attract even a civil remedy because their effects are subjective, capable only of assessment by the person who chooses to take exception to them.

Last week there were repeated calls for Tony Abbott to pull his dissenting senators into line on section 18C. This strikes me as contradictory for the simple reason that many of those now making calls for party discipline will, when I introduce my marriage equality bill, demand that Tony Abbott grant a conscience vote.

I commend to my fellow senators Edmund Burke's speech to the electors of Bristol. In it Burke points out that a political representative owes his party and constituents not only his industry but also his independent judgement. People are elected to this place on the understanding that they have their own minds. It is not possible in my view to engage your conscience selectively. You are the usual mind or you do not. Senators and members, to paraphrase Bourke, ought to be faithful friends and devoted servants of their parties and constituents but not flatterers.

With this bill, senators get a chance to not just vote on their position on government censorship but also reveal a bit about themselves. Some of you, I know, are passionate supporters of freedom of speech and will be voting to repeal 18C. I congratulate Senator Day for introducing the bill and I congratulate those who will show the courage of their convictions by crossing the floor.

Then we have those who oppose the bill, because they disagree with it. At least you have the courage of convictions, but under what authority can you constrain freedom of speech of others while being protected by parliamentary privilege? Why is it okay for you to enjoy freedom of speech but not for other Australians? Do you accept this privilege because you are a senator and your constituents are not; or do you think your constituents are too fragile or stupid to manage a debate amongst themselves? When you prevent someone from expressing their thoughts, you are, in fact, insulting them.

And then there are those who support Senator Day's bill but are voting against it anyway for the sake of expediency or some misguided belief in party loyalty. I would remind you that voting against this bill will not be an act of party loyalty but an act of betrayal on your electors.

I commend the bill to the Senate. I put it to you that if you are one of those people who will vote this down, that maybe you do not believe in anything much at all. I commend the bill to the Senate. I seek leave to continue my remarks.

Photo of Alex GallacherAlex Gallacher (SA, Australian Labor Party) Share this | | Hansard source

Senator Leyonhjelm has sought leave to continue his remarks which means the debate has been adjourned.

Photo of David LeyonhjelmDavid Leyonhjelm (NSW, Liberal Democratic Party) Share this | | Hansard source

That was not my intention.

Photo of Alex GallacherAlex Gallacher (SA, Australian Labor Party) Share this | | Hansard source

In that case, Senator Smith has the call.

10:20 am

Photo of Dean SmithDean Smith (WA, Liberal Party) Share this | | Hansard source

I also rise this morning to speak on the Racial Discrimination Amendment Bill 2014, brought to this Senate by Senator Day, which I have chosen to co-sponsor. I do not think my decision to co-sponsor this bill will come as a surprise to those in this place or to those outside it who have closely followed the debate of reform of section 18C of the Racial Discrimination Act 1975. I do not doubt the sincerity of those who have spoken or those who have yet to speak. A serious issue like this requires a serious and sincere debate.

As I noted in my contribution to an urgency motion in this debate just some weeks ago, I was an enthusiastic supporter of the government's proposals to reform the law in this area. As can sometimes occur, unexpected developments in the international arena meant the priorities of the government had to change, and I accept that. However, an independent senator has now brought a bill to the parliament that presents an opportunity to achieve reform that I believe is important in underpinning and protecting one of our most cherished rights in Australia: the right of all of us to the freedom of speech. That is, as will be well known to us, a founding principle of our democracy. To put it simply, I do not believe that the most effective way to uphold your values is to loosen your principles. I do not believe you do not uphold your values by loosening your principles.

The right to live in freedom, to speak freely and to treat with respect and dignity those who may hold different views from ourselves is the key difference between ourselves and those who would wish to do us harm. As the Prime Minister has noted, those who now pose a security threat to Australia do not hate us because of anything we have done; they hate us because of what we are and who we are: a stable, a mature and a free democratic society that not merely tolerates but celebrates diversity in all its forms—racial, religious, political, sexual, cultural. This has long been the case. Our record is not perfect but no nation's is. But Australia's reputation as one of the world's freest and most tolerant societies goes back many decades, certainly before 1995.

Tolerance in Australia did not simply materialise with the advent of section 18C of the Racial Discrimination Act. Equally, it will not suddenly disappear if the words 'insult' and 'offend' are removed, which is what this bill seeks to do. I was bemused last week, when I agreed to co-sponsor this bill, to be described by Labor's spokesman as a radical senator. I have been called many things but that is a first. This is not a radical proposal. It is actually a minimalist proposal which highlights a simple point. In the end, our core philosophical difference in this place relates to the role of government. Many of those opposite believe that the government and legislation and regulation can and should cure all society's ills.

The simple fact is there are limits to what legislation can achieve. You cannot legislate to make people believe something or think a certain way, and that is certainly not the role of this parliament. That is the problem with section 18C as it currently exists. It criminalises the holding of an opinion and that is wrong. I may not like your opinion, but the idea that you can be taken to court and charged and fined for holding it is antithetical to that principle of freedom on which this nation and its core values are based.

I noted some comment last week in the media that retaining section 18C might be a way to combat hate preachers. Again, with respect, I do not find that argument especially compelling. If someone is so irrational and so filled with prejudice and hatred that they engage in the sort of preaching that urges the followers of a religion, a political party or some other organisation to physically attack or degrade those of a different view, I am not sure why anyone would think that two words in a piece of legislation are going to stop them. Irrational people—and that is what hate preachers are—do not sit down and think through the legal implications of their actions. It is much like those opposed to reform of section 18C arguing that change will lead to a torrent of racist abuse in our streets. Again, the thug who physically assaults someone because of their religious beliefs or launches into a racist rant generally will not be the type to pause and think, 'I better not do this because section 18C makes it illegal to offend and assault someone.' Those people are irrational and by definition are not capable of that logical thought process.

The ugly Cronulla riots in 2005 are often cited by supporters of section 18C as the sort of behaviour they are keen to stamp out but, as I have noted before, the Cronulla riots occurred 10 years after section 18C came into being. Section 18C manifestly did nothing to prevent those rights and those charged as a result of those riots were charged with criminal offences under different statutes, as they should have been.

The biggest problem with section 18C at present is it does not do anything to combat racism; it merely serves to hide it. Hiding the problem is not good enough. Our job in this parliament is not to create a better appearance but to create a better Australia. I want racists, bigots and, dare I say, homophobes to air their ugly prejudicial views so that they can be shown for what they are. We can only defeat racism and prejudices through argument and a clear demonstration that the facts do not support the bigots. If we shut down discussion, if we use legislation to declare certain subjects somehow off limits, then we have not defeated the problem; we have merely hidden the problem. Pushed into the darkness, the ugliness will simply continue to fester.

I was also struck by the words of Senator Bullock, a Labor senator, who said in his first 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.

That is a crucial point. A free and mature democracy does not have to accord all views equal weight in public discourse but it does need to permit people the right to express them. President Obama, who I suspect knows a good deal more than many of us in this place about what it is like to be attacked on the basis of race, made his view very clear. He said:

When ignorant folks want to advertise their ignorance you don't really have to do anything—you just let them talk.

In preparing my contribution for this morning I looked at Hansard from the mid-1990s when the Keating government's racial hatred legislation was being debated. In the course of perusing that material I came across this contribution:

… under this bill all that is necessary to create a civil offence is for someone to feel offended, insulted or humiliated. In other words, all that is necessary to create a civil offence … for someone to have hurt feelings.

It continues:

… the best argument against bad taste is not to make it illegal. What we need to combat racism is argument, not censorship; we need exposure, not suppression.

I would have applauded those comments in November 1994 as much as I do today. I thank the member for Warringah, the now Prime Minister, for making them.

As I have noted in some earlier contributions to Senate debates on this subject, tone is very important. We can disagree but we should do so respectfully. So it has been somewhat surprising that all the hectoring, finger-pointing, misrepresentation and name-calling in this debate has come from those who believe they are paragons of tolerance and virtue in our community, even in our parliament. During question time in the other place yesterday, the Leader of the Opposition said that I and others who support this bill are wanting to give the green light to racist, hate speech.

Let me make this plain, in terms even the Leader of the Opposition should be able to understand, I will not be lectured on racism and xenophobia by this man, I will not. I will not be lectured to about racism and xenophobia by a man who less than one month ago stood before a crowd of unionists on a flat-bed truck in Adelaide and gave the most disgraceful, racist and xenophobic speech any Australian political leader has given in decades. His speech that day was so appalling and so embarrassing that, at first, his own office refused to transcribe or distribute it. It was so disgraceful that one longtime Labor staffer described it as 'an inexcusable performance that stank with racist rhetoric'. The claims of those opposite to be guardians of racial tolerance in Australia might ring a little truer if a single one of them had taken their leader to task over his disgusting contribution. Unsurprisingly, none of them have.

I said at the beginning of this debate that I fully accept that developments in relation to national security required the government to reprioritise its own plans to reform section 18C. Nonetheless, this Senate is now being presented with a bill that will enhance the right of all Australians, no matter what their racial or religious background is, to freedom of speech. As I have just shown, the view that the best way to combat offensive view is to expose rather than suppress is one that transcends the usual party political boundaries. I encourage, with all of my heart and with the greatest of sincerity, senators to demonstrate their confidence in the fundamental decency and intelligence of our fellow Australians by supporting this bill. I also seek leave to continue my remarks.

Photo of Alex GallacherAlex Gallacher (SA, Australian Labor Party) Share this | | Hansard source

Is leave granted? Leave denied? I call Senator Bilyk.

10:33 am

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

Earlier this week, a 26-year-old Muslim woman was bashed and thrown off a train at Batman railway station in Melbourne. The attack was vicious and completely unprovoked. The victim did not know the attacker, had not talked to the attacker and was attacked purely on the religious faith she held based on the clothes she wore. This is a reprehensible and disgusting act, and police are still looking for the person responsible. I hope they find them very soon. I believe that the fundamental purpose of government is to protect the weak from the strong, to ensure that we have a community where everyone can feel safe and contribute without fear of being vilified, where the circumstances of someone's birth or religious beliefs do not affect the opportunities available to them or how they are treated. No-one should fear that they will be vilified when walking down the street, going to work, catching the train or listening to the radio.

The Racial Discrimination Amendment Bill 2014 is a debate on what values we as a nation hold as core values, on what we as a nation believe is important. Do Australians really believe it is more important to protect the so-called right of people to vilify others even when it comes at the expense of the right of people not to be vilified? I do not think they do.

One of the co-sponsors of this bill, Senator Leyonhjelm, has said previously that his political philosophy is grounded in the philosophical principles of John Stuart Mill:

That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

I would argue that in this case section 18C as it stands would be thoroughly supported by John Stuart Mill, because it fulfils his requirement for the exercising of power. It prevents harm to others. Because it is harmful to others when they hear their names slandered on national syndicated radio. It is harmful to others when they are humiliated and insulted based on ethnicity or religion, and it is harmful to others to be demeaned because of the faith they practise or the garments that they wear to practise this faith.

Senator Leyonhjelm and others with his views will argue whether it is up to this place to regulate such behaviour. Once again, taking the views of his beloved John Stuart Mill, I would like to quote chapter four on liberty, where he states:

As soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion.

To hammer that point home: as soon as any part of a person's conduct effects prejudicially the interests of others, society has jurisdiction over it. That means it is a perfectly legitimate act of this place and the other place, even within Senator Leyonhjelm's own ideological framework, to legislate against despicable racist acts and slurs. Senator Leyonhjelm and others in this place cannot argue for the freedoms espoused by Mill if they do not also accept where he believes power should be exercised by the state. They cannot cherry pick from Mill when it serves their own interests.

As the body responsible for creating legislation as the duly elected, freely chosen body of the people, it is therefore this parliament's right, indeed its duty, to improve the general welfare by enacting laws that prevent people from prejudicing the interests of others. This is what this parliament has done. It is what this parliament did almost forty years ago when the Racial Discrimination Act 1975 was passed through this parliament during the government of Prime Minister Gough Whitlam. The act has served this nation well since that time.

Unfortunately, racism has not been eradicated completely but it is important that the fight against it is continued. Mr Whitlam gave an eloquent explanation as to why racism was so abhorrent in the 1972 debate in the other place when he said:

Racism is the ultimate violence because it begins and ends with the denial of man's basic humanity.

Does Australia really want to be a place that espouses denying people's humanity through hate speech? Senators Bernardi and Smith are also co-sponsors of this bill and, Senator Smith, I was surprised that you were co-sponsoring this bill. You said you didn't think anyone was. Trust me: I was—not with anybody else, but with you I was.

Months ago Mr Abbott told us that changes to the Racial Discrimination Act were no longer being considered. Mr Abbott said:

It's off the table, it's gone, it's disappeared …

But now, Mr Abbott's own senators have come into this place and sought to make changes to section 18C that Mr Abbott promised would not happen. This is another broken promise by Mr Abbott and he really needs to get his house in order. If Mr Abbott really believes himself to be captain of Team Australia, then he should show some leadership and tell his forward line to stop attacking the other members of the team.

Senator Bernardi has told this place time and time again that he is in favour of free speech, that he believes in freedom; except Senator Bernardi also seeks to ban the religious garments of Islam. I find it hypocritical when senators come into this place advocating for the freedom to vilify and hate on the one hand but wish to deny freedom of religious practice for others. This is what freedom means to Senator Bernardi. People should be free to do whatever they like as long as Senator Bernardi approves.

Are senators really in this place to advocate for hatred and against tolerance? I think they need to have a good hard look at their conscience and realise that they are here to legislate for the benefit of all Australians. This bill has generated great interest from both sides of the debate; however, I believe that when we look at the bills in this place, we have to ask ourselves a number of questions: who will this change harm? Who would this change benefit? Will this improve the general welfare? Why would a senator in this place support this legislation?

Looking at these questions, the answers seem quite clear. The changes in this bill will harm decent, upstanding law-abiding members of culturally and linguistically diverse communities. It will harm decent, upstanding members of our community who seek to practice their religion peacefully without harming others.

So, who will this change benefit? Unfortunately, this change would benefit those that seek to insult and offend people based on their religious beliefs or ethnicity. Will this bill improve general welfare? In addition to the harm to others, it also does great harm to our society. Radicalism rises when we tell people that they are not welcome and when we say that Australia has no issue with allowing our culturally and linguistically diverse citizens to be vilified based on race or religion.

Which brings us to our final question: why would a senator in this place support this change? I would just like to take a moment to quote from the then member for Isaacs, Mr Clayton, during the 1975 debate in the House, when he spoke of those who opposed the introduction of the Racial Discrimination Act. He said:

… I still have no possible explanation of why he is really opposed to this legislation except to conclude that what he really seeks is to perpetuate in this country the existing situation in which people can and do commit acts which discriminate against people of particular races and hide behind supposed rights at law in order to protect themselves from being brought to justice for committing these acts.

And that is the crux of this bill and this debate.

We, too, must conclude that senators Bernardi, Day, Smith and Leyonhjelm, through the sponsorship of this bill, seek to allow people to commit acts which discriminate against people of particular races and hide behind supposed rights at law in order to protect themselves from being brought to justice for committing these acts.

I know that some senators do not always necessarily treat this place as they should but I do have to say that I find this bill quite disgusting.

Debate adjourned.