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

and move to a position where we can have a community discussion about this important issue. That community discussion should be given to the parliament—should be given to this parliament—to do. I will come back to that point in a few moments. But let me just start by saying that when this debate started a number of years ago—and I have only been in the Senate for four years—there was little support for reform, but what has happened is that the arguments for reform have been increased, not just from Senators McKim, Smith and Moore but from esteemed people in our community. Let me start with one of them: a very eminent Western Australian who is now the Chief Justice of our High Court. Justice Robert French has said:

The lower registers of the preceding definitions [in 18C] and in particular those of 'offend' and 'insult' seem a long way removed from the mischief to which Art 4 of CERD is directed. They also seem a long way from some of the evils to which Part IIA [of the RDA] is directed as described in the Second Reading Speech.

What the now chief justice, then a justice, was saying is that reform of 18C is defensible. That is the first point. Julian Burnside AO QC, a prominent human rights lawyer not known for his articulation of political values similar to my own or similar to Senator Paterson's, has said:

… the mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability. My personal view is that 18C probably reached a bit too far so a bit of fine-tuning would probably be OK.

What I am trying to demonstrate is that there is a wide breadth of argument in the community from esteemed people who, at a minimum, think that this should be reviewed.

Let me turn now to the Australian Human Rights Commission, because Senator Moore did use the Australian Human Rights Commission's contribution some years ago in defence of her position. Let me share with you what the Australian Human Rights Commission have said in the last two years. They said that 'the legislation could be clarified so that it more plainly reflects the way in which it has been interpreted in practice'. And, most significantly, what did the Australian Law Reform Commission say? The Australian Law Reform Commission concluded, just last year:

… there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to 'offend'. In some respects, the provision is broader than is required under international law—

to prohibit the advocacy of racial hatred—

broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.

In comparing Australia's section 18C with other common-law countries, the Australian Law Reform Commission found:

The New Zealand and UK provisions seem narrower than the Australian provision … For example, the provisions do not cover offensiveness, and require that the person provoke hostility or hatred against a group of persons defined by race or ethnicity.

The commission also stated that, in 2013, the Canadian parliament repealed a broader provision in the Canadian Human Rights Act—one reason being that the provision conflicted with the freedom of thought, belief, opinion and expression safeguarded by the Canadian Charter of Rights and Freedoms.

I have a strong view on this issue but I accept absolutely that there are other people in the community who have a different view. The idea that we should not take the next step forward and have a proper debate—and I do not like to use the word 'debate'. The word 'debate' in an instant suggests conflict. It does not have to be conflict driven. It can be a parliamentary discussion about the merits or otherwise of reforming section 18C, because people outside of this Senate, esteemed people, have argued that that is the right course of action. The politics in this are tempting. It is easy to whip up hysteria. It is easy to whip up concern. But we have an obligation, as considered people with rights and responsibilities as senators, not to create fear where fear does not have to be created but to give people a degree of confidence that this is a debate, a deep debate, that we can participate in.

I am looking forward to Senator Dodson's contribution in his first speech, which we will hear shortly, as a fellow Western Australian and as someone who spends a lot of time across Western Australia's far North. But I think it is interesting to be reminded of the comments of Mr Warren Mundine reported in The Australian newspaper this week. Mr Mundine did start by opposing the Abbott government's plan to repeal section 18 in its entirety, and that is not what we are talking about. Those of us like Senator Patterson and I, who argue that reform should be possible, are talking about a very, very narrow reform. Mr Mundine has said that he believes that the law needs changing. He has said that he was supportive of removing the terms 'offend' and 'insult' from the section. I quote Mr Mundine now:

"The way things are going at the moment we are seeing people who have been stifled in regards to their conversations, that is the concern I have," he told The Australian. "I do believe it needs changes—not to wipe it completely, but to pull it back a bit."

Again, it just demonstrates the point that there are a variety of opinions in the community. It is beholden on us to conduct the debate carefully, to conduct the debate in adherence with our convictions and values and to accept that different people will have different points of view.

I have an idea about how we can progress that. On many occasions this parliament has demonstrated its capacity to deal with difficult and sensitive issues. A proposition that I have shared with colleagues is that I think it is time—I do think we have the capacity—for a parliamentary inquiry to examine the broader issue of freedom of expression, of which 18C is just one part, and to invite members of the House of Representatives to join in that parliamentary inquiry, because we know that they will have different views as well. We know that the sorts of pressures that are on House of Representative members are different to those that are on senators. It would be a parliamentary inquiry that includes members of the House of Representatives and that is given to an esteemed committee of the parliament—perhaps the Parliamentary Joint Committee on Human Rights, Senator McKim, of which you and I were members in the last parliament. We can step above the partisanship and the point-scoring. But is beholden on all of us to do it in a way that exercises care and caution. And it is beholden on Senator Patterson and me as opponents of reform to make sure that that consensus for reform is as broad as possible. A parliamentary inquiry puts the responsibility on Senator Patterson and me and others to broaden the consensus, to build confidence that this is a positive next step. If it is not a positive next step, we can review that—we can inquire into that. It is just not defensible anymore.

Indeed, in Senator Moore's own contribution she recognised that there is a debate in the community. The Australian Human Rights Commission had a view; I have shared with you why that view is now different. The Australian Law Reform Commission had a view and now that view is different. It is time to take this debate to another level. Rather controversially, let me put out a challenge to my own colleagues: reform is possible, so we must exercise the greatest diligence in making sure that every action, every word we speak, has as its objective building consensus and not distracting from consensus.

Senator McKim, I think a freedom of expression parliamentary inquiry of which 18C is a part is important. We know that one of the most cherished principles in our country is the freedom of opinion and expression. We know that it stands first amongst equals and its intrinsic worth is the fact that it sits in very close proximity to other liberties that we cherish—the freedom of association, the freedom of assembly, the freedom of thought, the freedom of conscience and the freedom of religion. These are live issues in our debate in our country. I challenge anyone who thinks that they are not. But now is the time to take it to a new level, to a new place, and to encourage and empower parliament to conduct what is a very necessary community inquiry.