Senate debates

Thursday, 2 October 2014

Bills

Racial Discrimination Amendment Bill 2014; Second Reading

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.

And:

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.

And:

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.

And:

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.

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