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

In Canberra I am a very strong coalitionist. In Western Australia I am a very strong Liberal. In fact, there are now 13 senators on the record in support of reforming section 18C, including one from the Labor Party. That is nearly one-fifth of the chamber for a bill that, officially, does not have the backing of the of either major party. Why is this the case? I believe it goes back to the sentiments expressed by Victor Hugo: the opponents of reform may shriek loudly, but their sound and fury is not enough to overpower an idea whose time has come.

It has been an instructive experience to sit in the Senate on those occasions when reform of section 18C has been debated and to listen to the opponents of the reform mount their arguments. Generally speaking, their opposition is based around three flawed approaches. The first is that supporters of reform wish to give the green light to race hate speech. That idea is so patently ridiculous that, frankly, it does not deserve the dignity of a response. The opposition's next tactic is to highlight various contemporary examples of racist statements or behaviour and suggest that reform of 18C will simply encourage such acts. The Cronulla riots are generally included near the top of the list of examples. Again, this arguments is self-defeating. Section 18C in its present form was on the statute books for a decade before the Cronulla riots occurred. It manifestly did nothing to prevent them. Those that were charged as a result of the riots were charged under various criminal statutes and not the Racial Discrimination Act of 1975. Those riots, which were ugly and unacceptable, proved the point. If someone is so irrational, so filled with prejudice and hatred, that they engage in the sort of behaviour that encourages the followers of a religion, a political party or some other organisation to physically attack or otherwise degrade those of a different view, I am not sure why people think two words in a piece of legislation are going to stop them.

The final strategy was to try and paint reform as an obsession of right-wing ideologues who are out of step with mainstream thinking. This actually is a very important and critical point. The problem here is that advocates for reform of section 18C do not hail exclusively from the right of the political spectrum. It is hard to affix the label of 'right-wing zealot' to the Chief Justice of the High Court, Justice Robert French, who noted in 2004 that the words 'offend' and 'insult' were a long way removed from the mischief that the Racial Discrimination Act was intended to address. It would probably come as a surprise and as news to activist lawyer Julian Burnside QC that he is an irredeemable conservative ideologue, yet he too has said:

The mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability.

Sarah Joseph, the director of the Castan Centre for Human Rights Law at Monash University has noted that, Feelings of offence and insult are not serious enough to justify restrictions on the human right tofreedom of speech …

There are other prominent Australians who would self-identify as being on the left or at least not being on the right of politics who have backed reform, among them David Maher, Jonathan Holmes and The Age newspaper. There are a good many eloquent words spoken on this subject right across the political divide. Some of my favourites come from 1994, when the original parliamentary debate on the introduction of what is now known as section 18C was occurring. They are worth repeating today:

… 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 under this bill is for someone to have hurt feelings.

  …   …   …

… 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.

The speaker in that instance was the member for Warringah, former Prime Minister Tony Abbott. Indeed, the current Prime Minister, Mr Turnbull, has expressed support for the aims of what is contained in Senator Day and Senator Leyonhjelm's bill. In May of last year, the now Prime Minister said that the proposal to remove the words 'offended' and 'insult' from 18C is:

… broadly supported and I was very comfortable about that, I didn't think that would have any negative impact.

Earlier in my contribution I mentioned my fellow Western Australian colleague, Labor's Senator Joe Bullock, as also being someone inclined to support reform in this area. Indeed, Senator Bullock used his first contribution in this place to underscore that point when he told us in his first speech:

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.

Plainly, this issue is not one that can be couched in traditional left-versus-right terms. Attempts to do so are disingenuous.

However fervently the opponents of reform in the Australian Labor Party and elsewhere may wish this debate would go away, the plain fact is that it will not. The momentum for change is undoubtedly building, even if the pace is slower than some of us would like. Fundamentally, the parliament faces a pretty simple choice. That choice relates to how we view those we are sent here to represent. Either we trust in the basic decency and fundamental fairness of Australians or we do not. Either we believe that Australians are mature and intelligent enough to know racism and bigotry when they see it, and dismiss it, or we believe that Australians are helpless, unthinking rubes who need the government to protect them from things they find distasteful.

Clearly, many senators opposite take a very dim view of those they are supposed to represent. They seem to believe that there is a pervasive culture of racism in our country, that the air crackles with bigotry and that the only thing stopping it are two words in section 18C of the Racial Discrimination Act. That is a view I reject. I think it is a view most Australians would reject. I believe Australians are fundamentally decent, open and tolerant. We can have disagreements on issues but in a respectful way. If passionate public debate on occasion gives rise to hurt feelings, my view is that that is a small price to pay for the privilege of living in a free society.

In closing my contribution today, I would again say that I disagree with the premise of the motion before us. The government has done much to uphold freedom of speech and I am confident that in time, and with the support of this parliament, it will be able to do more.