Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Human Rights, I present the committee's report, incorporating dissenting reports, entitled Freedom of speech in Australia: inquiry into the operation of part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth).

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—On 8 November 2016, pursuant to section 7C of the Human Rights (Parliamentary Scrutiny) Act 2011, the Attorney-General referred to the committee the following matters for inquiry: firstly, whether the operation of part IIA of the Racial Discrimination Act 1975, including sections 18C and 18D, impose unreasonable restriction on freedoms of speech; and, secondly, whether the complaints-handling procedures of the Australian Human Rights Commission should be reformed.

As part of the inquiry, the committee received written submissions and held nine public hearings between 12 December 2016 and 20 February 2017—two in Canberra and one in every other state and territory capital city—to ensure that members of the public across the nation had fair opportunity to have input. In addition, where it was not possible for witnesses to appear at hearings in person, teleconferencing was used to facilitate participation.

The committee's report contains five chapters, the four substantive chapters of which address the four terms of reference for the inquiry. The report makes 22 recommendations aimed at improving the legislation and complaints-handling process. I am pleased to say that there has been a high level of bipartisanship between government and opposition members of the committee in arriving at recommendations in the report which present a range of pragmatic options to the government for consideration. These recommendations are designed to ensure that future complaints received have a reasonable prospect of success and are dealt with in a timely and cost-effective manner.

As a committee, we have received extensive and substantial evidence from submitters which demonstrates that the balance between protection from racial discrimination and freedom of expression is an issue about which many Australians have a keen interest. The issue of free speech as it relates to section 18C of the Racial Discrimination Act has attracted significant public interest in recent years following a number of high-profile cases in which the mainstream public have become concerned that justice did not appear to have been done and that ordinary Australians were being penalised by law and the system which inflicted substantial costs and inordinate time delays on respondents to complaints concerning matters that did not appear to offend mainstream community standards. As I said in my first speech in this House, on 9 December 2013:

… as a nation we must address the issues of multiculturalism and reconciliation, whilst preserving the fundamental character and values of Australian identity. These complex social processes are by necessity two-way streets. There has to be a degree of give and take to promote a balanced approach to the competing goals of diversity, assimilation and integration in our emerging national identity. From my own experience I can attest to the value of—

free speech in—

interacting with people of different cultures and fully participating in my local community.

Much has changed in Australian society since section 18C was introduced to the Racial Discrimination Act in 1995, during the Keating government, hence the need to revisit what words actually mean in contemporary society. In the current era of political correctness the threshold of what 'offends' has shifted dramatically. It has been reported in the press that there have been instances where celebrating Christmas by singing Christmas carols in public places has been deemed as being offensive to minorities.

Our objective is to practically simplify the law so that, where there is a dispute over cultural sensitivities in the workplace, in public, or in a social setting, ordinary Australians in the suburbs and towns will be able to resolve their differences with minimal input from the referee or umpire in a way that is affordable and timely. We are not talking about sheep stations; we are dealing with offences at the lower end of the spectrum of 'insult' and 'offend', which do happen, occasionally, in the course of everyday social interactions. From a common-sense perspective, what we are trying to achieve is the protection of ethnic and racial groups from harm and detriment, but it is not the role of the government to police petty social misdemeanours.

Witnesses at the hearings gave comprehensive evidence concerning their experiences of racial discrimination in Australia, including a range of anecdotal evidence. Aspects of the evidence were compelling and distressing, including accounts of racial discrimination in terms of employment, access to accommodation, verbal abuse, objects being posted in the mail, physical altercations and inappropriate material. These acts should be universally condemned, as there is no place in Australian society for this racist behaviour. In fact there exists, a raft of legislation at a state and federal level which make these acts illegal. For the purposes of the inquiry, however, many of these matters fall outside the terms of reference and scope.

The inquiry viewed freedom of speech as it relates to constructive criticism and open debate in the context of a workplace, social or public setting where it ought to be permissible to discuss culturally sensitive matters in the normal course of business. Our duty is to govern for all Australians, and that includes mainstream Australians who feel that their right to free speech is being infringed by political correctness and the overzealous application of laws such as section 18C. Mainstream Australians deserve the same rights as racial and ethnic minorities. It is important that the law does not promote reverse discrimination.

As a migrant of Eurasian heritage, I see the need to protect ethnic and racial minorities on one hand but also the duty to protect mainstream Australians from situations of reverse discrimination. As I said in my maiden speech, multiculturalism and reconciliation are two-way streets, of give and take, with neither group taking advantage of or having a lend of the other.   The sentiment in the proverbial pub often is resentment that sometimes ethnic minorities use the provisions of the law to take things too far. Our challenge is to make the law fair to all.

From observation, those involved in the human rights industry are generally extremely well educated, academic and intellectual. It is fine to have complex legal concepts and precedents, but there is a disconnect in understanding with the proverbial person in the pub or suburbs. The operation of the Racial Discrimination Act needs to take into account the context of the ordinary person in a typical setting. In giving evidence, Australian Human Rights Commission President, Gillian Triggs, used the example of 'the typical person on the Manly ferry'. However, unfortunately, that person is not commonly found in the rest of Australia. How will a regular mainstream person of average education in a suburban setting understand or interpret the law?

The government needs to ensure that resources are being directed at preventing material racial discrimination and serious conduct resulting in harm, violence or incitement to violent acts, not cartoons and trivial matters. Many members of the public mistakenly believe that if section 18C is amended it will permit abusive and vilifying behaviour based on race, not taking into account that there are already other legal protections in force against incitement to violence, harassment or intimidation.

I would like to thank deputy chair, the member for Moreton, and members of the committee: the members for Berowra, Brand, McMillan; and Senators Paterson, Reynolds, Moore, Brown and McKim, for the collegiate way they have worked together during the inquiry, and for their specialist technical skills. I also thank our committee Secretary, Toni Dawes, and the team of secretariat staff who went above and beyond the call of duty, working long hours to meet the reporting deadline. I encourage my fellow members, the government and others to examine the committee's report. With these comments, I commend the committee's report into freedom of speech in Australia to the House.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

by leave—As deputy chair of the Parliamentary Joint Committee on Human Rights, I have been chastened and humbled to hear the disturbing evidence presented to this human rights inquiry. It is particularly important that I note up-front that the committee is recommending no change to section 18C of the Racial Discrimination Act.

Australia is a successful multicultural nation, but that does not mean we can be complacent about protecting our minority communities from racist abuse. The inquiry has heard evidence from people right across Australia who have been subjected to racist behaviour, sometimes almost every day. We heard evidence of the harm that racism causes to individuals and their communities. It is detrimental to their health, detrimental to their employment prospects and detrimental to their educational advancement, and it results in exclusion and marginalisation.

No government law will ever prevent all racism, but laws set the standard of acceptable community behaviour. We only need to look through history to see examples of behaviour at times when racism has been accepted, such as during the civil rights movement in the United States of America and even in Germany in the 1930s when racism was the law. Sadly, even in our own backyard here in Australia we have not been immune to racist ideology creeping into law and policymaking. In fact, the very first piece of legislation passed by the Commonwealth parliament was the White Australia policy, a unity ticket for all members of parliament. But things have moved on. In fact, the Australian Constitution, our nation's birth certificate, still discriminates against Indigenous Australians. Hopefully, that will change.

Laws help set the standard of acceptable community behaviour. Once our Constitution was amended in 1967, once the White Australia policy was dismantled, Australians, mostly, respected that Indigenous Australians should be treated equally and that immigrants should be welcome and accepted. This powerful message has helped to make us the most successful multicultural nation in the world. For more than 20 years, part IIA of the Racial Discrimination Act has been helping to prevent racial hatred. Part IIA of the RDA is well established and well supported. It strikes an appropriate balance between freedom of speech and freedom from racial abuse and should be retained and strongly supported by all Australians. I thank the committee members, including the member for Brand, for being involved in a report that recommends that status quo. The four Labor members of the committee believe that no case has been made to amend part IIA in any way, and I am thankful that the report put forward by the member for Moore, the chair of the committee, reflects that.

Parliamentary committee process is important. The majority committee report from this inquiry notes that many members of the committee did have differing views about how to balance the competing rights and freedoms that were the subject of this inquiry. That is how committees work. It is only when there is overwhelming support for a particular course of action that a recommendation for change will result. In this case, there was not overwhelming support for any change to part IIA of the Racial Discrimination Act and therefore no recommendation to amend part IIA has flowed from this Turnbull government initiated inquiry. The committee has not recommended any amendment to the Racial Discrimination Act. I stress that. The majority report of the committee and the recommendations for legislative and policy change that are contained within it reflect some of the community concerns heard by the committee.

The committee has made 19 recommendations around the procedures of the Australian Human Rights Commission. Labor members of the committee are supportive of improving procedures at the AHRC. In fact, the Australian Human Rights Commission itself recommended some amendment to its own procedure. While I support the premise of these procedural amendments, it comes with the caveat that any implementation of these amendments must be cognisant of these three factors: any amendment must be constitutional, and the inquiry heard evidence from constitutional experts around some of these recommendations, and it is trite to say that these are very complicated issues which will need to be thoroughly explored to ensure that any implementation does not fall foul of my constitutional concerns; access to justice must continue to be a paramount principle when implementing any change to the complaints procedure of the AHRC; and any implementation of a recommendation that will result in increasing the workload of the Australian Human Rights Commission should be coupled with the appropriate increased resources for the AHRC to function efficiently.

It has only been 112 days since the date of the referral of this inquiry, and 62 of those days were in December and January, a time when, traditionally, Australians and community groups have some time off and come together with their families. But during this ridiculously short time frame the committee has heard evidence in every capital city. If you look at the faces of the secretariat up there in the gallery, you will see that it shows. We have received 11,460 items, including 418 submissions. It is a credit to the secretariat that they were able to deal with all of these.

It is a remarkable achievement that, despite the strict time frame arbitrarily dictated by the government, we have tabled this report, and some credit does go to the work of the member for Moore for his chairing of the committee. I thank all of my fellow committee members from all sides of this chamber, including those located opposite. I cannot quite make out their faces, but they seem familiar, those gentlemen up the back there! I thank all my fellow committee members for recognising the harm that racism causes in the community and for constructively working through the issues raised. The recommendations that are included in the majority committee report are all intended to increase the ability of the AHRC to process complaints under the Racial Discrimination Act, increasing access to justice for complainants and respondents.

Much of the media attention that has surrounded this inquiry has centred around two cases: the QUT case and the Bill Leak case. There have been many criticisms of these cases, even though the QUT case was actually dismissed in court and the Bill Leak case was withdrawn. Some criticisms of the procedural handling of these two cases have been addressed in the recommendations, but neither of these cases provided a substantive case for changing the Racial Discrimination Act. As the committee was told by several witnesses, hard cases make bad law.

Part IIA of the Racial Discrimination Act is a piece of legislation that most of us will, hopefully, never have to encounter. Most of us, especially Anglo-Saxon males in positions of power, will not need to make a complaint to the Australian Human Rights Commission under section 18C. Most of us will not be respondents to a complaint either. But to minority groups in Australia part IIA is very important, and watering it down in any way would cause much harm to them. At the extreme end of racial abuse, white supremacists do not care what harm is visited on those they wickedly try to victimise with their vile hate speech. However, there is a special place in hell reserved for those apologists for white supremacists and those who enable their vile work. All sensible members of a tolerant society must remain vigilant and ensure that any rise in racism is combated and controlled.

Many witnesses to the inquiry spoke of their concern that any change to part IIA of the RDA would send a dangerous message to the community about acceptable standards of behaviour. That message would be a signal not only to white supremacists and the like but to others in the community, especially those keyboard warriors who gutlessly and carelessly hurl around their vile abuse. Social media has become the modern school ground for racial bullies. Sadly, we drag the playground into our lounge rooms and our bedrooms. These bullies can bravely throw their racist abuse from the safety and, usually, anonymity of their homes, while the victims remain vulnerable everywhere, with nowhere to hide.

The committee heard evidence from experts in cyber racism that removing or watering down regulations protecting from racist abuse would open up opportunities for people to 'push it further'. From all of the evidence presented to the human rights committee, what has been brought home loud and clear is that protections against racism are important. They are important to those facing racism every day, they are important to our communities as a benchmark for behaviour and they are important to our Australian businesses that are more productive when their workers are not concerned about being racially abused. Now is not the time to water down laws that protect our vulnerable minorities from this type of abuse. That is not the Australia that I love—not on my watch.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

I move:

That the House take note of the report.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

In accordance with standing order 39, the debate is adjourned. The resumption of the debate will be made an order of the day for the next sitting.