BILLS;Human Rights Legislation Amendment Bill 2017;Second Reading – 28 Mar 2017

Today we are discussing the Human Rights Legislation Amendment Bill 2017. The Attorney-General, Senator Brandis, the person I believe to be the worst Attorney-General in Australia’s history, has introduced this bill under the pretence of defending freedom of speech. Is it any surprise that the Attorney-General, after spending much of his ministerial career attacking the President of the Human Rights Commission for doing her job, would seek to introduce a bill that winds back human rights protections that have served Australians well for 20 years?

The changes to the Racial Discrimination Act proposed by this bill are not designed to improve freedom of speech, nor are they designed to protect ethnic communities and Indigenous Australians from racial abuse. This bill is designed for one purpose and one purpose only: to protect the prime ministership of Malcolm Turnbull. What has been clear from the Prime Minister’s behaviour ever since he took over from Mr Abbott is that he has been beholden to an agenda pushed by the ideologues who make up the majority of his party. These ideologues are like a pack of hungry wolves, baying for Mr Turnbull’s blood, and the only way he can keep them happy is to keep feeding them, so he throws them a few scraps of right-wing extremist policy to feed on, one after another, just to keep them satisfied. Whether it is his backdown on an Australian republic, an emissions trading scheme, his pursuit of a plebiscite on marriage equality or the bill that is before the Senate today, Mr Turnbull has abandoned one by one the moderate principles he once held in an increasingly futile attempt to keep the wolves at bay, and he has disappointed many. Many Australians who may have had faith in Mr Turnbull are now waking up to the fact that he is utterly beholden to the extremists, who will never, ever be completely satisfied. They will always be in charge of him. Their desire for more regressive right-wing policy will never be satisfied, and Mr Turnbull does not have the courage or even the authority to stand up to them.

It is very telling that, before the government introduced this bill, Mr Turnbull claimed that changes to the Racial Discrimination Act were ‘not on his agenda’ So why is it on his agenda now when it was not before? The answer is simple: the Prime Minister does not have control of his agenda. And how ironic it was that Mr Turnbull used Harmony Day, of all days, to announce that he is watering down race hate laws. It demonstrates the sheer insensitivity of this government that a day that is supposed to be about celebrating respect, inclusiveness and cultural diversity was hijacked to announce this regressive policy. What galling, shameless effrontery it was to use that day to announce that they are moving to undermine the very principles the day has been earmarked to celebrate.

It just goes to show how out of touch this government is with the concerns of Australians. After all, this is a reform that very few Australians are actually pushing for. I certainly have not been faced with a barrage of letters or emails from people saying changes to 18C must be pursued with urgency. As far as I can recall, I have received three emails, which I know is three more than many of my colleagues have received. It may be a priority for Senator Bernardi, Mr Christensen and conservative columnists such as Andrew Bolt, but no-one is coming up to me in the street to say we really need to do something about the Racial Discrimination Act.

However, when I talk to ethnic communities in my home state of Tasmania, the message is loud and clear. They want protection from racist hate speech and they are very concerned with the impact that changes to section 18C of the Racial Discrimination Act may have on people in their communities. As their peak body, the Federation of Ethnic Communities Council of Australia, or FECCA, said in a media release that the Racial Discrimination Act provides an ‘important protection against racially motivated attacks, including hate speech, against members of Australia’s culturally and linguistically diverse communities’.

Mahatma Ghandi said that a nation’s greatness is measured by how it treats its weakest members. This is something that those opposite could really learn from. Time and time again—and I have given so many examples of this before—their policy approach is based on attacking the most vulnerable and disadvantaged Australians, at the expense of the privileged few. When it comes to racial abuse and racial discrimination ethnic minorities and Indigenous Australians are some of the most vulnerable people in our community. And they need the protection of the Racial Discrimination Act. Section 18C of the Racial Discrimination Act has served those communities, and our nation, very well for more than 20 years.

Before I talk about why section 18C, as it is currently drafted, should be defended let me explain a few things about racial discrimination. First of all, we know that racial discrimination, or racism, is still widespread in Australia. Nearly half of Australian residents from a culturally and linguistically diverse background have experienced racism at some time in their life, and three in four Indigenous Australians regularly experience racism. The most common form of racism is racial abuse, of which one in five people living in Australia has been a target.

There have been a number of studies that show racism can have profound negative effects on the people who experience it—impacts on physical and mental health, reduced productivity and reduced life expectancy. A study of 823 Australian secondary school students found that the mental health impacts of racism include depression; a constant fear of being physically or verbally attacked; having little or no trust in anyone except family; and even some physical symptoms such as headaches, increased heart rate, sweating, trembling and muscle tension.

Racism also presents barriers to participation which can entrench social and economic disadvantage. Before his election to parliament the member for Fenner, Andrew Leigh, co-authored a study which found that an Indigenous Australian must submit 35 per cent more applications than an Anglo-Australian to get a job interview. For the same chance of an interview an applicant of Middle Eastern heritage must submit 64 per cent more applications, and one of Chinese heritage must submit 68 per cent more.

While we have all heard the saying ‘sticks and stones may break my bones’, the truth is that what we say can hurt and can have real consequences. It can affect people’s lives, their livelihoods and their mental and physical wellbeing. Let’s also recognise that if we tolerate or permit racist language, particularly in the public arena, it sends a message to Australians that it is okay to discriminate through other means. The proponents of this change to section 18C claim that insulting or offending someone is objective, that it is up to an individual whether they are insulted or offended by a statement. I believe that anyone who says that has not had to suffer racial abuse, certainly not on a regular basis.

As FECCA said in their evidence to Friday’s hearing into this bill, the removal of the terms ‘offend’, ‘insult’ and ‘humiliate’ sends a message to Australians that it is okay to offend, insult or humiliate someone on the basis of their race. To those opposite, who want to weaken the protections in section 18C, I pose this simple question—and it is one that most people on our side have been asking for a long time: what is the problem you are trying to solve? What is it that Australians are not allowed to say now that you would like to permit them to say? As I said, we have been asking that question for a long time but we cannot get an answer from those on that side in regard to that.

In 2015-16, the Human Rights Commission received 77 complaints under section 18C of the Racial Discrimination Act. This represented less than one per cent of all the complaints received by the commission. While the majority of complaints were either withdrawn or resolved through conciliation, only one complaint proceeded to court. While hundreds of complaints have been made under section 18C since it was introduced, proponents of changing this section cite a small number of cases as examples of why the current section needs reform.

One of the cases often cited—in fact, it was mentioned by Senator Abetz—is that of a complaint against the Queensland University of Technology for Facebook posts made by some of its students. This case went to court, but was dismissed by the Federal Court and leave was denied for the complainant to appeal. Without providing any comment on the appropriateness of the students’ posts or the merits of the complainant’s grievances, I simply ask the question: how does this example provide a case for watering down the protections of section 18C? If the court found that the case did not meet the threshold for a breach of section 18C then what changes to 18C would have improved the outcome for the students? The answer is none.

Government members who have advocated for changes to section 18C have argued that change is needed to protect free speech. But the free speech protections that those opposite are so set on are already provided in section 18D of the Racial Discrimination Act. Quite simply, you cannot read section 18C in isolation, as it interacts with 18D. Section 18D provides a number of exemptions which ensure that public interest and constructive public discourse are protected. For example, you cannot say anything unlawful if it is said in good faith in an artistic performance or in publishing a report in the public interest or in contributing to genuine academic debate.

That brings me to another case that is often put forward in favour of a change in the law—that of political cartoonist Bill Leak. Regardless of the merits of the process to which Mr Leak was subjected, you cannot use his case to argue the merits of the wording in section 18C, because the complaint against him was withdrawn. We have no test as to whether his cartoon was a breach of section 18C. And if it was, it is very possible that the free speech protections provided by section 18D would have applied to him anyway.

Neither of these examples provide a case for change to sections 18C or 18D of the act. The QUT example is a bad example because it was found not to be a breach of the act. The Bill Leak example is a bad example because there was no opportunity to test its legality under the act. I am not saying that the cases could not have been handled better, but this goes to process issues that would not be addressed by changes to section 18C.

I have yet to hear the proponents of removing the words ‘offend’, ‘insult’ and ‘humiliate’ from section 18C put forward a real example of something that they say should have been allowed, but was which was found to be a breach under the act. If Senator Brandis or any of those opposite have an example, please enlighten me, because I am still waiting for just one example. What words which would offend, insult or humiliate a person on the basis of race should people be allowed to say freely that they cannot say now under the current law? What racially vilifying language—what racist hate speech—does the government want to permit in the name of free speech?

Advocates for removing or watering down section 18C constantly misunderstand or deliberately misrepresent what this law does. This section of the act protects ethnic minorities and Indigenous Australians from nothing more than some of the most vile, hurtful racist language. It is completely disingenuous to claim that section 18C, as it currently stands, allows people to take legal action against others for hurt feelings. The language prohibited by 18C goes well beyond that and, as has been pointed out many times to those opposite, the court has interpreted this section so that it only applies to:

… profound and serious effects, not to be likened to mere slights.

If free speech is the primary concern of those pushing for this change then they should consider the implications for free speech when protections in section 18C are watered down. This point was made by Robin Banks, the former Anti-Discrimination Commissioner in my home state of Tasmania, when she explained to a parliamentary inquiry into free speech the effect racism can have on the targeted individual. Ms Banks said:

… they end up being silenced, which is an anathema to freedom of speech. It causes people to feel that they have to hide from society, shut themselves down, withdraw from active engagement and not speak out because of fear of being further attacked for being different.

This is exactly the kind of response to racism which, as I mentioned earlier, causes it to entrench disadvantage through social and economic participation.

We heard Senator Brandis using Orwellian language the other day to defend the government’s changes to the act. Senator Brandis kept claiming that section 18C was being strengthened. If this is about freedom of speech, as those opposite claim, then surely the changes are about allowing people to make statements now that they could not previously. That, by inference, means a weakening of section 18C. So how can the government be strengthening this section and weakening it at the same time? The government really cannot have its cake and eat it too. Of course, the truth is obvious to most people.

Then we have the comments by Andrew Bolt, one of the government’s strongest supporters on this change to the Racial Discrimination Act, that you would have to insult someone on the basis of their race five times before it met the bill’s definition of harassment. Mr Bolt has revealed the uncomfortable truth that Mr Turnbull, Senator Brandis and the rest of the government do not want to admit—that this bill will lead to more racist hate speech in Australia.

If the government were completely open about the impact of their changes then why are they avoiding scrutiny of this bill? Why have they sought to rush it through a three-day Senate inquiry? Why did government members of the committee exclude the Aboriginal Legal Service from giving evidence at Friday’s public hearing? Why have they allowed a situation where not a single Indigenous voice was heard in relation to a law that could have wide-reaching consequences for Indigenous Australians? And why, as was revealed in Friday’s hearing, did the government only consult with the Australian Human Rights Commission on the procedural changes in the bill, but not on the changes to section 18C? The government senators simply do not want this bill subjected to scrutiny, because they know that the consequence of the changes to 18C will be more racist hate speech in Australia.

In addition to the changes to section 18C, this bill makes a number of changes to the complaints handling processes of the Australian Human Rights Commission. On this side, we are disappointed by the rushed nature of these changes and the lack of consultation—an approach to legislating that is becoming more and more the norm and a habit with this sloppy, lazy, out-of-touch government. The changes, if passed, would result in additional red tape, additional delay and added costs for parties to complaints and would impede access to justice.

Labor will move amendments to the bill to improve the government’s poorly conceived changes to the complaints-handling procedures, to ensure that they do not create new problems. As for the proposed changes to 18C in schedule 1 of the bill, of course we will be opposing them. The proposed changes to 18C are, as I said earlier, an ideological obsession of the Turnbull government, without any basis. By putting forward these changes, Mr Turnbull is doing nothing more than bowing to the right-wing extremists who run the Liberal Party and providing comfort to anyone who wishes to racially vilify their fellow Australians with impunity. It just goes to show that Mr Turnbull is willing to do anything, willing to sacrifice any principle, in order to maintain his leadership of the Liberal Party. It is very well known that he is more interested in defending his prime ministership than he is in defending Australians from racism.