Senate debates

Thursday, 16 February 2017


Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017; Second Reading

9:43 am

Photo of Brian BurstonBrian Burston (NSW, Pauline Hanson's One Nation Party) Share this | | Hansard source

We in Pauline Hanson's One Nation Party regard freedom of speech as a fundamental human right, even though there is no formal recognition of the right in our legal system. Last week at a rally for medical cannabis on the lawn in front of Parliament House, Senator Hanson was described as Australia's favourite racist. Of course, anyone who knows Senator Hanson knows she is not racist. It is offensive to call someone a racist, especially if it is not true. But the right to free speech is more important, in my opinion, than any personal offence that might be taken by describing someone as a racist. Senator Hanson may object to a person describing her as a racist, but she will never deny the person the right to say what they think.

Although I support the right to freedom of speech, I am conscious of the fact that such a right is not formally recognised in law. The most Australians can say about protecting freedom of speech is that the High Court has ruled that we have the right to freedom of speech in government and political communication. In other words, ridiculing politicians and speaking contemptuously of them is acceptable in a political context, but the use of offensive words is not otherwise protected in Australian law. There is no free speech act, for example, and the only individual rights protected by Australia's Constitution are the right to freedom of religion and the right to a trial by jury for certain criminal offences under Commonwealth law.

The original draft of Australia's Constitution prepared by Tasmania's Attorney-General Inglis Clark included about a dozen individual rights taken from the United States Bill of Rights, including the right to freedom of speech. Only two rights survived the constitutional convention of 1898 in Melbourne—the right to freedom of religion; and the right to a trial by jury for certain criminal offences, as I mentioned. The problem with trying to assert rights such as freedom of speech in 1898 was that our founding fathers wanted to be free to discriminate against Aboriginal people, and the Chinese working in the goldfields. Now, that was racist. We have no fundamental right to free speech in our legal system because of the discrimination practised by our ancestors.

I suggested earlier in this speech that the Labor Party made a very poor attempt at fixing this deficiency in the legal system in 1985, when the Hawke government passed the Australian Bill of Rights Bill in the House of Representatives, along with the Australian Human Rights Commission Bill. They were companion bills, and the plan was that the Human Rights Commission would be the enforcement mechanism for Australia's bill of rights. The Bill of Rights Bill stalled in the Senate when the Western Australian Premier, Brian Burke, told Prime Minister Hawke that there would be no money for the Labor Party from the west if the Bill of Rights Bill became law. In 1986, the Human Rights Commission Bill became law, but the commission was always a shadow of its former self once the Labor Party killed off the bill of rights, contrary to Labor policy. This bill will facilitate early assessment of unmeritorious complaints to the Human Rights Commission.

Just as Labor did in 1986 when it frustrated the right to freedom of speech in Australia's stillborn bill of rights, Labor is still trying to suppress freedom of speech in Australia. Labor say they support individual rights and freedoms, but they deny the right to freedom of speech every chance they get. Labor and the Greens say we need to be protected from tyrannical governments, but that can be done only with a bill of rights which is a line in the sand between people on one side and the executive, the legislature and the judiciary on the other. A bill of rights is about the rights of people to take a stand against government. Whenever I am reminded that Australia is the only common-law country in the world that does not have a bill of rights, I am also reminded that the Australian Labor Party pass up every chance they get to promote human rights, including the right to freedom of speech, which is fundamental to the bill before the Senate.

Some people say that we already have a bill of rights in Australia. They are referring to the English Bill of Rights of 1689, which sets out certain rights of individuals, and parliamentary rights including the right to free speech in parliament. The English Bill of Rights still applies in the realms, including Australia, to the extent that it has not been overridden by inconsistent later law. I believe the only provision of the English Bill of Rights which still applies in Australia is article 9, which guarantees free speech in parliament. So politicians enjoy the right to free speech in the form of parliamentary privilege, but the same privilege is not extended to ordinary citizens who need to be very careful what they say in case they fall foul of the Human Rights Commission.

I must say I was unaware of the dangers of falling foul of the Human Rights Commission and the race laws until the case of Eatock v Bolt in the Federal Court, a case in which two articles written by Mr Bolt were found to contravene the racial vilification provisions of the Racial Discrimination Act. The court said the articles were reasonably likely to offend, insult, humiliate or intimidate the plaintiffs. What is not so well known about the case is that the plaintiffs had a perfectly good cause of action in defamation against Mr Bolt, but they chose instead to sue under the race laws in order to send a so-called message to the community. The community responded by saying that, if freedom of speech is so fragile in Australia as to be put aside to accommodate personal feelings of identity and self-worth, then we should think about changing the law.

Currently the Joint Parliamentary Committee on Human Rights is looking at the race laws, as well as the way the Australian Human Rights Commission deals with complaints about discrimination and allegations of human rights violations. A number of high-profile cases since Eatock v Bolt have focused public attention on the race laws, including the failed case against cartoonist Bill Leak and the failed case against three students at Queensland University of Technology. At a hearing before the parliamentary committee in Brisbane last week, Tony Morris QC, the lawyer acting for the three university students, said that his clients had to pay unjust compensation and legal fees to avoid a process biased against them. One student is trying to raise $41,000—yes, $41,000—to pay legal bills.

The number of submissions to the parliamentary inquiry expressing concern about unmeritorious complaints to the Human Rights Commission was a surprise to me. Eminent jurists suggesting early intervention to terminate complaints without merit include Justice Ronald Sackville AO, QC; and Professor Anne Twomey, of the University of Sydney. In Professor Twomey's submission to the inquiry, she said:

It is not clear why the Commission should proceed to conciliate complaints of acts which the President is satisfied are not unlawful. Hence, it may be better to oblige the President to terminate the complaint once he or she reaches that state of satisfaction. Further, it might be of assistance to require the President, upon first receiving a complaint, to make an assessment as to whether the alleged act would, prima facie, appear to be unlawful, before proceeding to engage in the conciliation process.

A former Australian Human Rights Commissioner, Dr Sev Ozdowski OAM, informed the committee that the complaints process at the Human Rights Commission is biased in favour of the complainant. The former commissioner spoke about people at the commission enforcing their vision of the world. The combined effect of running unmeritorious complaints and promoting agendas brings the law into disrepute and damages the good work the commission otherwise undertakes. People who are the subject of serious discrimination are entitled to the protections of the law. The suffering caused by serious discrimination is abhorrent, and I would not like to see the law diminished for utilitarian purposes or sectional interests.

The Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017 has no impact on legitimate complaints to the commission and does not in any way diminish important protections for people who suffer serious discrimination. In fact, the bill has the opposite effect in that it extends the protections of the law to innocent respondents who currently are at risk of being dragged before the commission to answer spurious allegations and malicious attempts at character assassination. The defamation law in Australia is uniform and well settled and there is simply no need to run a case against a person in the Human Rights Commission that would not get past first base in the defamation courts for reasons of triviality, lack of evidence or the absence of good faith. Damage caused to a person by an unjust claim of discrimination cannot be justified in any circumstances. I commend the bill to the Senate.

9:53 am

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party) Share this | | Hansard source

I am very pleased to be able to contribute to the debate on the Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017 today. I congratulate Senator Burston for bringing this bill before the parliament and highlighting an issue I think most Australians find incredible and a position most Australians believe could not happen in a country such as Australia. So, Senator Burston, thanks for bringing this forward.

I might diverge slightly to correct Senator Burston's colleague on a different matter. He said in the chamber the other day that I had congratulated him for bringing on a debate on climate change and that was the first time we had ever had a debate on climate change. That was not correct. As senators who have been here for a while know, we have had many a debate on climate change over the last 10 years and I am proud to say that I have been involved in most of them trying to expose the Greens for their hypocrisy in this as well as every other issue.

What I did say to Senator Roberts was that this was the first time we have had a real debate on the science behind climate change, an issue which I might say I never get involved in because I am not a scientist and I do not understand it. My issue has always been that Australia, which emits less than 1.4 per cent of the carbon emissions of the world, should do things when everyone else does but not lead the way, as the Labor Party and the Greens would have us do and destroy our economy and jobs of Australian workers at the same time. But that is a digression.

I do thank Senator Burston for raising this very important issue. The bill mirrors some of the matters raised by an eminent and philanthropic Queensland QC—Mr Tony Morris QC of the Queensland bar. He has written to the Senate Legal and Constitutional Affairs Legislation Committee a couple of very erudite, very interesting and almost entertaining but very serious and important opinions on this and other issues relating to the Human Rights Commission. I thank Mr Morris for his generous intervention in the workings of this parliament with the advice that he has given. I might say in passing that, if the parliament had sought that advice in a commercial way, it would have probably cost the parliament between $10,000 and $20,000 for the quite detailed, well argued, well researched and well referenced opinion that Mr Morris gave.

Mr Morris is to be thanked not only for that but also, as I understand from media reports, for acting for several students that Senator Burston referred to in his address who simply would not have had the money to take on the outrageous claim that was made against them by an employee of the Queensland University of Technology. This is one of the problems with the justice system in our country. These three students simply could not have afforded the cost of solicitors, barristers and senior counsel to take on this issue. I understand from media reports that Mr Morris had made his services available to some of them without charge.

Again this whole human rights issue that is the subject of Senator Burston's bill is a salient reminder of the unfairness of this whole situation. I understand—and I am only going from what I recall of media reports—that one of the impecunious students named as a respondent, who eventually found out about it, did the thing that I think most people would do—just paid $5,000 in go-away money. He was not guilty and did not want to admit anything but was concerned that he might have been up for paying $250,000 if the action had been successful, so he did what most impecunious students would do and simply said: 'I've been told that if I give them $5,000 they will go away, so here's my $5,000 go-away money. I don't really have it. I'll have to work a lot longer at McDonald's or Red Rooster to make up the money. But here's the $5,000 because I can't simply afford the prospect of ending up with a judgement against me of $250,000.' Of course that was never likely to happen, but if you cannot afford good counsel you do that sort of thing and pay go-away money because you cannot afford to do anything else.

That is not directly relevant to this bill but is another issue that is a sad reflection on the way society is at the moment. I thank Mr Morris for his generosity not only in the advice that he has given to parliament but also in the generous work he did on behalf of some impecunious students who otherwise would not have been able to find a voice in the courts of our land.

Senator Burston's bill relates to a lot of issues which everyone would think were a matter of common sense. I think most people would be surprised to think that an amending bill or a new bill was needed, because Senator Burston's bill simply relates to what everyone would assume had happened. I have not correlated Senator Burston's bill to these facts, but I think the Human Rights Commissioner, Professor Triggs, intimated that what Senator Burston's bill is trying to do actually happened. I think she intimated that in one of her many appearances before the Senate Legal and Constitutional Affairs Legislation Committee's estimates hearings.

At estimates, when public servants, those on the taxpayer funded payroll, are asked questions, they are required to answer them. Professor Triggs has on a number of occasions been asked questions—which are highlighted in Senator Burston's bill—about what she did in a preliminary way and what pre-investigations were undertaken before embarking upon the course of action the Human Rights Commission did or, it seems, did not do when it should have in the case of the QUT students. At the last estimates hearing Professor Triggs used the excuse, 'This is sub judice, so I can't talk about this to a Senate estimate committee.' As Mr Morris rightly pointed out in one of his opinions, whilst Professor Triggs found she could not talk to the Senate estimates committee about these issues—he observed that Professor Triggs repeatedly refused to discuss the QUT case in our committee—she had previously done so in other public forums such as, would you believe, the ABC current affairs program 7.30. Her pretext to the Senate estimates committee was that, having talked about it publicly on The 7.30 Report on the ABC, she could not talk about it in the Senate because it might prejudice the case before the courts.

I thought Professor Triggs's interpretation of sub judice was a little bit wide, but then again I used to be a small town country lawyer some time ago. It has been a long time since I practised law, and I do not think I was ever much good anyhow. But Professor Triggs is supposedly a woman of very strong legal background, with a very comprehensive and recognised background in law, so who was I to argue with her? But I note that Mr Morris, who understands these things much better than I, said in a letter to the committee, which was taken as a submission and is public knowledge:

I feel compelled to inform you, and the Committee, that the explanation given by Professor Triggs for her refusal to answer questions concerning the QUT Case is arrant persiflage and falderal.

I might say, like most other senators, I had to go to the dictionary to see what 'persiflage' and 'falderal' were. But, having seen the dictionary definition, I think Mr Morris is absolutely correct and precise. Mr Morris went on to say:

Had such an excuse been trotted out by a person without legal training or qualifications, it might (perhaps) be dismissed as a genuine misconception. But when a lawyer of the standing of Professor Triggs mouths such tendentious drivel—and does so, moreover, before a standing committee of the Upper House of the National Legislature—it has to be called out for the diversionary tactic which it plainly is.

Mr Morris, in what is now a public submission, goes on to deal with the powers and privileges of a Senate committee. I would certainly urge those in this chamber, including the clerks, to have a look at Mr Morris's opinion on the powers and privileges of Senate committees and privileges of the House. They are useful and inexpensive advices that could well benefit some of us in this chamber.

Mr Morris, in his letter, goes on to say:

On its face, it is a very noble and high sounding sentiment to wish to avoid prejudicing proceedings before a court … And, if there were any genuine risk of such a prejudice, I am (speaking for myself) completely confident, both that no Honourable Senator—regardless of political affiliations and agendas—would knowingly ask a question which exposes such a risk; and also the committee as a whole would disallow such a question, or excuse the witness from answering it, once any such a risk became apparent. But the demonstrable reality is that no such risk exists, ever existed, or (indeed) could exist. It is rather less noble and high sounding for a witness, like Professor Triggs, to suggest the existence of such a risk merely as a calculated subterfuge to avoid answering embarrassing questions, where the only potential for prejudice is a prejudice to the witness's own reputation (assuming that she possesses one) for honesty, integrity, competence and diligence.

I raise these matters in this debate because they are very germane to the issues Senator Burston has addressed in the bill before the chamber. As senators know, we will be sitting in estimates again the week after next. We indicated to Professor Triggs at the last hearing that, hopefully by the time of the next hearing, the court case under which she sought refuge would be resolved and that we would be asking her fully all of the questions which Senator Burston's bill very appropriately raises.

Armed with some very good legal advice, I would suspect—I cannot speak for the committee but my guess would be, knowing the committee that I chair—that the committee would probably adopt Mr Morris's version of sub judice and prejudicing court cases and, Senator Burston, we would expect Professor Triggs to actually answer some of the issues that you raise. I hope that your time commitments enable you and other senators to appear at the estimates committees and ask questions. As Mr Morris points out—Senator Burston mentioned this at length in his speech—only two of the students who were respondents in the QUT case—and he names them—have raised any issue regarding the AHRC's handling of pre-litigation processes and procedures. On 4 November 2016, the case against two of those respondents was summarily dismissed by the Federal Court, and there is no appeal to that. There was then the issue of an appeal by Ms Cindy Prior, who was the accuser, the plaintiff, the first party, who claimed $250,000 for something that most Australians could not believe was in any way offensive and certainly not racially offensive—and I think Senator Burston mentioned that in his address earlier, so I do not need to go through that. But Ms Moriarty, the solicitor for Ms Cindy Prior, apparently missed the appeal date and then blamed everyone else for her incompetence in not understanding when appeals had to be lodged.

There are two matters now pending before the Federal Court: an application for leave to apply out of time for leave to appeal—because she missed the time, she has had to apply for special leave to appeal out of time— and if that succeeds then there will be an application for leave to appeal—not an appeal, but an application for leave to appeal. Those applications are to be heard by a senior judge, and even if those applications succeed it will only mean that Ms Prior has the opportunity to appeal, despite her solicitor's mistakes. Of course, it will not mean that any appeal will succeed or is likely to succeed. Mr Morris makes it quite clear in his opinion that senators asking questions of the Human Rights Commission in a Senate estimates committee is hardly likely to be front of mind of the senior judge of the Federal Court when he hears these matters. Mr Morris quite rightly says that questions of this nature are in no way likely to in any way impact on any hearings before any court at any time in the future in relation to this matter.

Most of the problems which occurred in the QUT case would have been cured had the bill that Senator Burston proposes been in play. As I say, Senator Burston, everybody thought—even, it seems, the Human Rights Commission itself—that the pre-investigation investigations by the Human Rights Commission would have been done. But the facts will show, and we hope to get those facts at the next estimates committee hearing, exactly what the Human Rights Commission did. What we know for certain is that they did not even bother to tell the respondents for about 14 months after the complaint was made—how could that possibly happen in an Australian judicial or quasi-judicial system? Fourteen months before the respondents, who might have been facing paying out $250,000, were even told that the complaint had been made—just outrageous.

Senator Burston, I wish your bill well. Thank you for raising the issue publicly and I hope it will have an influence in correcting a very poor situation. (Time expired)

10:13 am

Photo of Patrick DodsonPatrick Dodson (WA, Australian Labor Party) Share this | | Hansard source

I rise to speak on the Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017. This amendment would make substantial changes to the procedures for dealing with complaints lodged with the Human Rights Commission under part IIB of the Australian Human Rights Commission Act. These are complaints that allege unlawful discrimination under various provisions of the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. The bill also seeks to change the procedure for dealing with complaints lodged with the Australian Human Rights Commission under part IIB of the Australian Human Rights Commission Act 1986. The bill adds a requirement that the commission, on receiving a complaint, must engage in a preliminary assessment of the complaint and the evidence relating to it before proceeding to a full inquiry. It also adds requirements relating to informing respondents about the complaint.

On 8 November 2016, the Attorney-General referred to the Parliamentary Joint Committee on Human Rights an inquiry into whether the complaints-handling procedures of the Australian Human Rights Commission should be reformed and other matters relating to section 18C of the Racial Discrimination Act. The committee has been receiving submissions and conducting public hearings into these matters and is due to report on 28 February 2017.

Labor opposes this bill on the basis that it pre-empts the Parliamentary Joint Committee on Human Rights, which has been examining this exact issue and is due to report by the end of this month. To suggest that this chamber should support a bill today, or days before a report on this very important matter is released, is clearly contemptuous not only of the joint committee's function but also of the thousands of Australians who have made submissions to that inquiry expecting that their views would be considered and presented in the committee's report for consideration by the Senate. Perhaps Senator Burston believes that the views of the Australian people are not worthy of his consideration. Labor will carefully consider the committee's report before supporting any changes to the Human Rights Commission's complaint processes, which have been widely successful in conciliating complaints while also providing savings in legal costs.

The Human Rights Commission has a special responsibility as our national human rights institution: the protection and promotion of human rights in the country. It is empowered to administer those human rights statutes that Australia has implemented, independent of government. It works to make sure that Australia honours the human rights commitments we have made. The commission provides a direct service to the Australian community. The commission assists people to resolve disputes about discrimination and breaches of human rights. Much of the commission's work is also policy work. The commission promotes human rights and freedoms by engaging with government, industry and community groups. The commission has been responsible for building the case for change in many important issues. It also provides a human rights analysis to the courts and parliamentary inquiries, conducts research and contributes to partnerships.

In carrying out its conciliation function, the commission performs a vital role in ensuring access to justice for people who have experienced discrimination, harassment and vilification. Those sorts of measures ensure that, consistently with article 2 section 3(a) of the ICCPR, people whose human rights or freedoms have been breached have access to an effective remedy.

The commission's complaints process is set out in the Australian Human Rights Commission Act. Any person who wants to make a complaint of unlawful discrimination under one of these federal acts must first make the complaint to the commission. The commission inquires into the complaint and attempts to conciliate it. If a complaint cannot be resolved, the complainant then has the option of making an application to the Federal Circuit Court or the Federal Court. The commission's process and the judicial processes are complementary.

The commission's complaint processes focus on informal dispute resolution, which provides an assessable, timely and cost-effective way for parties to deal with discrimination related disputes. This benefits both the individual parties to a complaint. Users of the commission's services, both complainants and respondents, report high levels of satisfaction. The Human Rights Commission receives thousands of complaints each year, the overwhelming majority of which are settled through conciliation. In the 2016-17 financial year, the Human Rights Commission reported that 94 per cent of the surveyed parties to complaints were satisfied with the process. That figure rose to 98 per cent where complainants were conciliated. Those are not the figures of a process that is necessarily in need of reform.

The commission has been widely successful in reaching conciliation and keeping low the numbers of cases that are brought to court. I note that a recent cost-benefit analysis conducted by the Centre for International Economics found that the commission's dispute resolution service provides significant savings for the Australian community in terms of conciliating the vast majority of cases so that they are not required to be brought to court, saving public administrative and private legal costs.

These advocates of repealing section 18C of the Racial Discrimination Act like to create the spectre of thousands of vexatious complaints about human rights, particularly racial discrimination, brought to courts. The truth is that, in the 22 years that section 18C of the Racial Discrimination Act has been in existence, barely 100 cases have been brought to court. The remaining complaints were either withdrawn or sorted through the conciliation process of the Human Rights Commission, usually involving an apology or a retraction and no court involvement.

While I appreciate that Senator Burston, like me, is relatively new to the Senate, many members of this chamber will remember the Abbott government's withdrawal of his attempt to water down laws protecting against racial abuse, Holocaust denial and harmful hate speech back in 2014. The Abbott government's attempt to water down section 18C of the Racial Discrimination Act was proof of just how out of touch that government was with the mainstream Australian community, which rejected proposed repeals with rallies and thousands of emails and phone calls to elected representatives.

Senator Brandis, the Attorney-General and Leader of the Government in the Senate, rather infamously said, 'People have a right to be bigots, you know.' We know Senator Brandis's position on this issue. We know that some of the members opposite want to use protections against hate speech as a political football to appease the ignorant and deplorable in their party room, and I caution against doing this.

Labor will fight to defend laws against racist hate. We rarely hear advocates for the repeal of section 18C mention Section 18D of the Racial Discrimination Act, which includes broad-ranging exemptions to Section 18C, including 'in the performance of an artistic work' and 'in making a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief'. There are many laws that draw a line on what Australians can and cannot say, and this is a good thing. I hope that no member in this parliament would support the repeal of Australia's defamation laws or consumer laws that ensure that a product is what its manufacturer says it is or a law that bans speech that incites terrorism or violence. Just last year this parliament, with Labor's support, legislated to create a criminal offence for advocating genocide—and I am yet to hear those advocates for free speech protesting this resolution.

Labor are the party of free and fair speech, but we are not the party of hate speech. It is very easy to declare oneself to be committed to freedom of speech, but to those who advocate changing or repealing section 18C of the Racial Discrimination Act I ask: what is it that you want to be able to say? For some in this chamber, free speech is allowing reactionary shock-jocks to indulge in rants that fly in the face of the standards of truth and basic decency that our community expects and deserves. For others, freedom of speech is allowing insulting and offensive racist hate speech. We should condone or accept neither. Laws pertaining to speech are important because words do matter. To paraphrase the words of a speech I gave earlier in this chamber: words do matter, and how we use words is critical. With rights come responsibilities.

Discrimination, including racial discrimination, still occurs all over Australia—and that is why laws like Section 18C of the Racial Discrimination Act are so important. If those opposite do not believe me, I encourage them to go and talk to Indigenous Australians or to new migrants and ask if they have ever experienced racism or racist hate speech. The new Chief Justice of the High Court said in a judgement in 2001:

… to 'offend, insult, humiliate or intimidate' are profound and serious effects, not to be likened to mere slights.

I suggest that senators remember those words when they consider this bill and what it seeks to achieve. Words matter because words can hurt, they can alienate and they can and do discriminate.

Labor understand that freedom of speech should be rooted in the principles of human rights. We reject the false argument that practically any regulation or restriction on what we say infringes our right to free speech, and we reject this bill which seeks to strangle the capacity of the Human Rights Commission. Labor's position is that every Australian, regardless of their race or ethnic background, has the right to live in a society free from the threat of being insulted, humiliated, offended or intimidated because of their race, colour or ethnic origin. The Human Rights Commission is the independent body that provides an avenue for aggrieved citizens to complain if they feel that these rights have been violated. It is a great sadness to me that, instead of debating funding for schools, action on climate change or support for our great and diverse multicultural communities, this chamber is yet again debating the merits of protections against racist hate speech. Finding the balance between free speech and protections against certain kinds of speech is not easy. The balance struck, though, in our current anti-discrimination laws administered by the Human Rights Commission over the past 20 years has worked well and without controversy.

In conclusion, the Human Rights Commission has served Australia well. It has provided essential protections against discrimination based on age, disability, race and gender. Labor will not pre-empt the findings of the Senate committee on potential reforms to the Human Rights Commission's complaints processes, and that is the basis on which we cannot support this bill. But we will firmly stand with the great multicultural communities of Australia against any attempts to allow racist hate speech in our great country.

10:28 am

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

As outlined for Labor by the previous speaker, Senator Dodson, the Greens will not be supporting this motion. There are many, many reasons for that, but the one that was just mentioned by Senator Dodson on process was a particularly strong argument. I do not know if Senator Burston has actually noticed, but there is a joint house committee examining matters associated with the Racial Discrimination Act and the Human Rights Commission Act and it is yet to make a report on those matters. In fact, there are still public hearings to occur both here in Canberra and potentially in other places around the country. To support this bill today would be pre-empting the process that has been established by this parliament.

It is no surprise that here we are again debating matters to do with the Human Rights Commission and the Racial Discrimination Act, as if somehow they fit into the top 1,000 issues facing Australians today. It is like Groundhog Day in this place, but instead of an adorable critter like a groundhog the anti-18C campaign would be more accurately likened to some kind of mutant, feral rat that sticks its head out of its burrow on a consistent basis. Lo and behold, again in The Australian today thousands of words have appeared in regards to Islam and what happened on Q&A.

This continues the absolute torrent we have seen from The Australian about 18C over the last year or so. I want to make a couple of comments on that. The Australian, or as it may be better described, the 'Q Society Gazette', has become little more than a loss-making, race-baiting rag. I have a suggestion for The Australian: where the name of the paper appears on the front page, maybe they could put in smaller font just underneath it, 'We are not racist but…' Let's see if The Australian is prepared to take on that. I know I am a greenie, and I am playing into stereotypes here, but it breaks my heart to think about the thousands of trees that have died so that The Australian's 18C rubbish can be printed every day—column after column of middle-aged white blokes screaming about how their rights in Australia are being suppressed and trampled on. It might even be believable if those same middle-aged white blokes were not writing op-ed after op-ed that espoused their bigoted and xenophobic world view. It is worth pointing out that The Australian prints the disgusting, disgraceful eugenicist views of Gary Johns, who, remember, wants people to be sterilised before they can get the dole. Really!

The anti-18C campaign, run by the Q Society Gazette, The Australian, and by the IPA and the agents of the IPA in this place, is about nothing more than greenlighting angry white people to use the n-word in this country. The Australian Greens will not have a bar of it. When they are not kicking vulnerable minorities—The Australianthey are dodging paying their fair of tax. I want to talk about lifters and leaners. How about they ditch their dodgy accountants and their dodgy accounting schemes and actually start paying their fair share of tax so that we can look after ordinary Australian people better.

Today we have The AustralianI have not counted the words, but it is well over a page, including the biggest story on the front page—basically character assassinating Yassmin Abdel-Magied. She would no doubt be able to speak for herself far more eloquently than I can today, but it is worth pointing out that, just as we had with Duncan Storrar last year, someone who has dared to go on the ABC—Q&A in both of those cases—and express views with which The Australian disagrees has been character assassinated in their pages. I want to quote from a story in The Australian. There is the front page: it is the biggest story there. It carries over to be most of page 2. By implication, they are suggesting hypocrisy from Ms Abdel-Magied, because she has dared to claim that Islam is a feminist religion and made the point that some people on Q&A found that really hard to understand. She has also said:

I’m not going to deny, some countries run by Muslims are violent and sexist, but that’s not down to sharia. That’s down to the culture and the patriarchy and the politics of those … countries.

They have implied hypocrisy by going through a list of the countries that Ms Abdel-Magied visited and going into some graphic detail about how women are treated there. It is a straight, simple character assassination by The Australian, as they always do when someone dares raise their head above the parapet and make comments with which they disagree. It is a disgusting, race-baiting rag.

Is freedom of speech seriously under any threat in this country? Is it seriously in the top thousand issues that Australians are faced with today? No, it is not. To make that point I am going to read out some of the things that One Nation candidates and politicians have said in recent times. Mr Andy Semple, the now disendorsed candidate in Queensland, tweeted the LGBT acronym, which in common parlance stands for lesbian, gay, bisexual and transgender, with images of the Statue of Liberty—the capital L; a gun—capital G; beer—capital B; and tits—capital T.

The you have Shan Ju Lin penning a Facebook post that said gays should be treated as patients. Then there was Peter Rogers, who wrote a blog post claiming that the drowning of a three-year-old refugee was faked, and also, disgracefully, claimed that the Port Arthur massacre was faked. Then there is David Archibald in Western Australia, who claimed that single mothers are too lazy to hold onto their partners. Just this week you have Michelle Myers, who said that gay people are using Nazi mind control techniques on the population. You have Chelle Dodson, who refused to eat an aeroplane meal because it was halal certified. Just this morning you have had a candidate who, according to Fairfax papers:

…once advocated killing Indonesian journalists, and attacked "poofters", Muslims and black people…

Is anybody seriously going to suggest that freedom of speech is under any kind of threat in Australia today? Unfortunately, there are people who are making that argument. It has not escaped my notice, and the notice of many other Australians, that they are almost exclusively middle-aged white guys, like me and, for that matter, like Senator Burston. It is middle-aged white guys who are leading the charge—the most privileged people in our society, somehow trying to make an argument that their democratic freedoms are being trampled, while we have heard on the Human Rights Committee horror story after horror story from peak bodies representing anyone from the Jewish community to the Muslim community, to the Indian community and to the Aboriginal and Torres Strait Islander about the everyday racism that their members experience. The lived experience of racism in this country faced by people from minority racial or cultural groups is absolutely horrendous. And, of itself, that is a freedom of speech issue. When people are treated in a racist way, often with threats or violence, their freedom of speech is compromised because they are afraid to speak out and say what they really think without facing discrimination in their workplace, in their schools, on the streets, in their communities, in the pubs where they might have a beer. So they hold it all in. They do not exercise their right to free speech in this country because they are too bloody scared to talk. That is a problem. That is the freedom of speech problem in this country, not a bunch of privileged middle-aged white guys. It is the lived experience of multicultural Australia and minority groups in this country that is the real freedom of speech issue that we need to be debating more often in this place.

As I said, there are many, many reasons why we will not be supporting the bill before the Senate today. Senator Burston has completely and abjectly failed to make the case for change, including procedural change inside the Human Rights Commission and in regard to the act that establishes the Human Rights Commission and frames up some of the matters that pertain to the way the commission has run.

There are submissions on the public record through the human rights committee, the joint house committee that is examining these matters. Many of those submissions can be seen on the committee website. Some of those submissions have, indeed, recommended change in the way that the Human Rights Commission handles complaints, responds to complaints and deals with complaints. That is a matter that the committee will no doubt deliberate on and form a position or, perhaps, a range of positions on. But that is a matter for the committee.

What the Greens want to say about this is: we will look at those submissions, we will hear the evidence—and that has already been put before the committee in some cases; in other cases it remains to be put before the committee in public hearings, one of which is coming up later this week—and we will form a view once we have heard all the evidence. Some submitters have suggested improvements to the way the act is framed and the way the Human Rights Commission handles complaints. Others have mounted reasonable arguments that there is no case for change and no need for change. But those matters will be considered by the Greens, and we will continue to play a constructive role on that committee.

But I do want to say—and I will finish my contribution here—that this country, like other countries around the world, is experiencing a resurgence of fundamentalist right-wing politics. We are facing a resurgence of racism in this country. Even the fact that the human rights committee is examining matters around 18C actually has resulted in increased levels of fear and trepidation in some minority racial groups in this country. Just the fact that we are even having the debate has caused them to feel more fearful for themselves, more fearful for their families, more fearful for their future.

Any change in 18C, no matter how well or poorly intentioned, will inevitably have the effect of green lighting more racism in Australia. As the Greens have consistently said, we do not believe that this is the time to be making any change to 18C whatsoever. If that change was made, there is no doubt that many people in this country, including The Australian, the IPA and many senators in this place, would go out and describe the change as a great victory for freedom of speech. That, of course, would be the subtle dog-whistle green light to more racism in this country. People would feel more empowered to be racist in Australia if any change to 18C were made.

From the Greens point of view, we will keep an open mind on the process issues inside the Human Rights Commission. They ought not be inflated in any way with 18C, which, of course, is in the Racial Discrimination Act. The act has very strong freedom of speech protections, I might add, in section 18D—a matter we hear very little about from proponents of changing 18C. So we will stand strongly against racist hate speech in this country. We will stand strongly behind the protections that are delivered against racist hate speech by section 18C of the Racial Discrimination Act. We will keep an open mind on process matters in regards to the Human Rights Commission and any possible amendments to that act.

10:43 am

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

This bill, the Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017, is a thinly veiled attack by One Nation on our Human Rights Commission. It is an attempt to tie it up in red tape so it becomes unworkable. As Senator Dodson clearly articulated, it strangles the capacity of the Human Rights Commission and it is a complete waste of the Senate's time.

I ask Senator Burston: have you actually read the Australian Human Rights Commission's annual report? If you had read this annual report you would know very clearly that, in 2015-16, the commission received 2,013 complaints and finalised 1,982 of them in the same year. Seventy-six per cent of those complaints were resolved through conciliation. Almost half of the complaints were finalised in three months, and 82 per cent were resolved within six months. So let us be clear: there are no major issues with the complaints procedures of the Human Rights Commission. If the senator would take the time to read this report before he wastes the Senate's time by bringing bills into this place that are a complete waste of the Senate's time, we would not have to be wasting time this morning debating such a ludicrous bill.

Let us be really clear. I have made it very clear that there are no issues with the complaints procedure of the Australian Human Rights Commission, but there are major issues with this bill and some serious questions for One Nation. Why won't Senator Burston be a little bit more honest and clear as to why One Nation are really bringing this bill before parliament? Are they deliberately trying to tie up the Australian Human Rights Commission in red tape so that then they can call for its abolition when the timeliness starts blowing out and cases cannot be resolved quickly? Are they going after the Australian Human Rights Commission because it stands up for and implements section 18C of the Racial Discrimination Act? We know clearly that they do not want any limits when it comes to the hate speech that pours out of certain One Nation candidates, at least, and we are very aware of some of those remarks.

Some of those remarks of course have been absolutely disgusting and appalling for our Australian society. That is the kind of candidate that this party puts forward, and that leads to getting elected and bills coming before this place that are a complete abomination and a waste of time. Let us have a look at what some of those candidates have said. One said, very clearly, that gay communities use Nazi-style mind control to get people to support same-sex marriage. Another said that gays should be treated as medical patients whose 'abnormal' behaviour leads to 'abnormal crime'. And then there was one just today, a new One Nation candidate, Richard Eldridge. Let us look at his record:

… a real estate agent contesting an upper house seat in the South Metropolitan region of Perth … called Muslims "little sheet heads", derided gay relationships as "poo games" and advocated taking up arms against "extreme Muslims".

In one extraordinary rant about Indonesians in November 2013, Mr Eldridge—

this is a One Nation candidate in the WA state election—

said we should "Balibo" Indonesian journalists—

'Balibo' Indonesian journalists—

an apparent reference to the 1975 murder of the Balibo Five group of Australian journalists in Timor.

It is absolutely appalling. This is the level of candidate coming out of One Nation, and this is the party that the Liberal Party in Western Australia have done a preference deal with, preferencing them over their own coalition partners, the National Party, to help candidates like Richard Eldridge get elected. That just shows you the craziness that Australian politics has entered into and the kinds of outcomes that we end up getting, with bills like this being brought before the Senate today.

If we really wanted to think seriously about human rights in this country, we would actually read the report of Emeritus Professor Gillian Triggs, the President of the Australian Human Rights Commission, in this annual report, because she outlines very clearly the challenges for human rights in this country—and there are many challenges. There are challenges such as the proposition for constitutional recognition of Aboriginal and Torres Strait Islander peoples; racial harmony and community cohesion, which is a key challenge; a national plebiscite to amend the Marriage Act to recognise LGBTI relationships; laws to ensure Australia's national security while also not unduly encroaching on the rights of our citizens; durable settlement for asylum seekers and refugees seeking our protection; and efforts to enable Australia to ratify the Optional Protocol to the Convention against Torture. Gender inequality continues to be a national concern, as was raised this morning at the International Women's Day breakfast. There are issues like the participation of older Australians in our workforce and the evolving National Disability Insurance Scheme. These are the human rights issues that are important for this country. That is a reason to come into this place and talk about human rights. If Senator Burston had the time to read this report, perhaps he would understand that, and perhaps he would understand why it is so important that we have an effective Australian Human Rights Commission.

The other bizarre part of all of this is the fact that there is already a joint committee inquiry going on that is examining, among other things, the complaints-handling procedures of the Australian Human Rights Commission. That report is going to be completed in a couple of weeks—28 February, I think it is. Why pre-empt the outcomes of that report? Why come into this place and put forward a bill before that current joint committee inquiry has done its work? It shows a disdain for our parliamentary systems. These are the systems that we have in place to ensure that we scrutinise and do our thorough work for the betterment of our democracy. What is the point in bringing this bill forward before the outcome of that report?

I think this bill makes clear One Nation's lack of understanding about human rights and about the Australian Human Rights Commission. I think, to be honest, that it exposes their immaturity and their inexperience regarding human rights. They are unable to frame meaningful legislation, so they resort to the kind of stunt politics of a fringe party, trying to make changes to something that they clearly do not understand. The outcome of course is politics—politics that so many Australians are getting sick of.

The Labor Party stand proudly on the side of human rights. In fact, 'Doc' Evatt was there at the beginning, in San Francisco, at the birth of the convention on human rights, with our United Nations charter. We also stand very proudly as being the party that introduced section 18C of the Racial Discrimination Act, something I know One Nation want to get rid of, because they do not want any restraints on being a bigot. You see, a bigot restrained will never suffer more than a victim shamed—never. And I do not think you, Senator Burston, will ever really know what that feels like.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

Address your remarks through the chair, thank you, Senator Singh.

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

Regardless of that, this constraining of those who seek those kinds of protections in our Racial Discrimination Act continues. In fact, this morning we had Christopher Pyne gagging Ms Burney in the other place when she tried to speak on a motion regarding native title during Closing the Gap week. This is the ludicrous nature that has got about not just One Nation but the Liberal Party as well. This shows clearly how politics rather than substance is trying to win out for these people.

As I said, the Labor Party is proud to have introduced section 18 C, and the Labor Party fights to retain it. It is a critical element of our antidiscrimination framework and it has served this country well for 20 years. It strengthens the rich fabric of Australia's successful multicultural community. It 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. Australians can and do use avenues that are open to them to call out racism when they see it. We use those rules to defend what is good and to show that hatred and hate speech is out. We do not accept excuses that racially motivated hate speech, racially motivated vilification, is an ordinary and acceptable part of living in our democracy. If Senator Burston thinks it is then we are on completely different sides of the coin. That is not the sort of society that I want to live in, and that is why I am proud to be part of a party that, for the last 20 years, has ensured that we had that level of law in our country that ensures that racially motivated hate speech is not an ordinary and acceptable part of living in our democracy.

To build a society where people of different racial and ethnic backgrounds feel able to fully participate and where people can live, work and play side by side, we need to defend our right to speak freely but fairly, just like we need to defend the laws that we have that provide for that, and the institutions that we have that provide for that—and that is exactly what the Australian Human Rights Commission does and does effectively and has done effectively year on end. So why are we here debating this bill? Why do we have a senator from a party bringing in this bill that makes no sense? It simply makes no sense. I also ask: why does Senator Burston not seem to have the support of the rest of his party? The usual practice when a party brings a bill into this place is that, in solidarity, it has its other senators back that senator up. Where are the rest of Senator Burston's team to back up this bill? I cannot see anyone else from One Nation on the speakers list today. I will always stand strongly with my Labor senators and colleagues on the right side of history, and that side of history is to ensure we live in a society in harmony.

Senator Burston would be aware that soon we will be celebrating Harmony Day. What is Harmony Day about? Harmony Day is about celebrating the rich tapestry that makes up Australia, our multicultural nation, our successful multicultural nation. But, as has been widely articulated by Senator Dodson, that is now all under threat. That is under threat because of the rise of this extreme Right agenda of those fringe parties of One Nation coming into this place with bills like this, putting up candidates that I described earlier such as Richard Eldridge, Michelle Meyers, Shan Ju Lin, Brian Brighton and David Archibald, who have all said appalling things in the Australian speech space, so much so that One Nation had to disendorse a couple of them. I call on One Nation today: are you going to disendorse Richard Eldridge? I call the Liberal Party in WA: are you really going to do a preference deal to help a candidate like this get elected, a candidate that has effectively said that Indonesian journalists should be murdered, that they should be 'Baliboed'? Outrageous! Are these really the kinds of politicians we want in Australian society? Is this really the kind of representation that we want in our community? What kinds of values is that putting out to the next generation, to say that it is okay to use that kind of language?

As Senator Dodson said, words do matter and words can hurt and they can discriminate. That is why the Australian Human Rights Commission has a special responsibility for the protection of human rights in this country—the protection of the vulnerable, the protection of the elderly, the protection of minorities, the protection of our first peoples, the protection of our Racial Discrimination Act. I think One Nation would prefer to live in Australia without such protections. I think One Nation would prefer to be able to be bigots whenever they choose to use hurtful language and whenever they choose to have such demeaning and awful effects on the victims that they go after. As I said, they will never know what that feels like because a bigot restrained will never suffer more than a victim shamed. Racism and bigotry, wherever expressed, are wrong. No-one has a right to be a bigot, particularly if they hurt someone.

That is why Labor proudly stands against this ludicrous bill. It is a complete waste of the Senate's time. It strangles the capacity of the Human Rights Commission, it pre-empts the findings of a current joint committee that is examining some of these very matters and it flies in the face of the detail in this Human Rights Commission annual report, which shows very clearly that the complaints system is effective and working completely fine. There is no other reason why One Nation has brought this about, other than to put forward their ongoing political agenda, which seems to be nothing more than a racist rant.

11:01 am

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Madam Deputy President, I understand you will be pulling me up in a minute or so, but I will just say that the government will not be supporting this bill. On that I do agree with Senator Singh. The fact that we have a committee that is conducting a robust investigation into the Human Rights Commission and its processes means that we should wait for that process to be complete.

On that point, I will depart from what Senator Singh had to say because I do have concerns, as we have inquired of the Human Rights Commission during the estimates process as to how they operate and about the impact on free speech in Australia. We look at the case of QUT, which has made it into the media. I thank The Australian in particular for their defence, not only of their cartoonists but for their highlighting of the plight of these three students. When you look at what they have been taken to task over, you could not call them bigots and you could not say that they were racist, and yet the full force of law and the costs associated with that have ended up landing on their doorsteps. Two of them have had to pay 'go away' money to the lady who made the complaint and her lawyer. Thankfully, we have had QCs and others who have been prepared, on a pro bono basis, to support these people so that this can actually be litigated and the public can see the impact that this has in a quite unfair manner on Australians.

The things that have come out during the estimates process that have been quite disturbing are the number of cases that have been settled or dealt with where people are not free to talk about the results, the outcome or the process. So the public has no idea of how many of these cases were payments made to make the problem go away, and in how many of these cases people have felt unable to express their points of view.

I share Senator Singh's concern that Australia should not be a place where people are belittled and put down, but I do not share her contention that 18C, as it currently stands, is actually doing a particularly good job of making Australia a place where we get that balance right. To quote the Attorney-General from a former Labor government in 2012— (Time expired)

Photo of Sue LinesSue Lines (WA, Australian Labor Party) Share this | | Hansard source

The time for this debate has expired. Senator Fawcett, you will be in continuation.