SUBJECT/S: Section 18C
THE HON TONY BURKE MP
SHADOW MINISTER FOR THE ENVIRONMENT AND WATER
SHADOW MINISTER FOR CITIZENSHIP AND MULTICULTURAL AUSTRALIA
SHADOW MINISTER FOR THE ARTS
MEMBER FOR WATSON
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
GRAHAM PERRETT MP
MEMBER FOR MORETON
DEPUTY CHAIR OF PARLIAMENTARY JOINT COMMITTEE ON HUMAN RIGHTS
PARLIAMENT HOUSE, CANBERRA
TUESDAY, 21 MARCH 2017
SUBJECT/S: Section 18C
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: I am shocked that on Harmony Day, on the day on which we are celebrating the International Day against Racial Discrimination, that the Prime Minister of Australia and the Attorney-General of Australia can stand up and try to explain, and fail to explain, a change to the law against racist hate speech in our country. Make no mistake, the change that has just been announced is a weakening of the Racial Discrimination Act. It is a weakening of the protections which have served Australia very well for more than 20 years. And for the Prime Minister to stand up and pretend, and it is only a pretense, because he's had his chain yanked by the right wing of his party, for the Prime Minister to pretend that this is a strengthening of the law is simply nonsense. The Prime Minister gave the game away when he was unable to explain, in answer to a direct question, what successful claim under the law as it stands warrants this change to the law. He did not offer one single example of a successful claim under Section 18C as a reason for changing the law. Instead, he went to failed claims. It is the first time I have ever seen law reform in this country being conducted with reference to claims which have failed. Claims which have failed to meet the standards we've set in the law. The line we've drawn against racist hate speech. This is a weakening of the law. The Attorney-General gave the game away as well. He described the new term that they are going to introduce to the law, "harass", as a "stronger term", as a "more powerful term". And what happens when you introduce a stronger and more powerful term to the law is that you raise the bar. You make it harder for people to complain against racist hate speech. It is a betrayal of Australia's multicultural communities. It is a betrayal of the Prime Minister's statements, frequent statements, that the law wasn't going to be changed, of the Prime Minister saying at the election that this law wasn't going to be changed. It's a betrayal of the Aboriginal community in Australia, the Jewish community in Australia. Every single ethnic community in Australia has been betrayed by this Government and no-one should believe in any way that this is, as the Prime Minister has untruthfully attempted to suggest, a strengthening of the law. It is not. It is a weakening of the law. It's a shameful thing to be doing on, of all days, Harmony Day, when schools around Australia, school children are having explained to them, why we set our face against racial discrimination and why we set our face against racist hate speech in our community. This is a dreadful step back. I am, however, hopeful of working with the crossbench in the Senate, who have already expressed clear views about this, to make sure that even if this legislation, which we have not seen yet, passes through the House of Representatives, it will not pass through the Senate. My colleagues want to add some comments.
TONY BURKE, SHADOW MINISTER FOR MULTICULTURAL AUSTRALIA: Thank you, Mark. In every school in Australia at moment, there are children, many of them wearing orange, celebrating harmony and being taught about respect. And here in Canberra, we have a Government wanting to give permission for more racial hate speech. Yesterday, this Government released its multicultural policy. It didn't even survive 24 hours before they walked all over it. There is no way of looking at today's announcement without this one fact in mind. The Government intends to give permission to forms of racial hate speech that are currently not permitted. Now, that might not be real for George Brandis or Malcolm Turnbull. But it is real for the person who gets humiliated on public transport on the way home. It is real for the child who has to stand there while his or her parents are being abused in a shopping centre. It is real for many, many Australians. And this Government, on Harmony Day of all days, on an international day to eliminate all forms of discrimination on race, on this day, the Government has chosen to lower the bar and allow forms of hate speech which are not currently permitted. Well, the Government needs to answer one question - what is it that they want to be allowed to say that they're not allowed to say now? What forms of racial hate speech that are currently not permitted do they want to give permission for? Because be in no doubt, when you remove the words that they're removing, there are forms of racial hate speech which will be given licence to. And the farce of a media conference that the Prime Minister just held. As if we're meant to believe this is a strengthening of the law. As if we're meant to believe, after all the complaints that they've been making over the last couple of years from the hard right of the Liberal Party, how on earth are we meant to believe that they've then come up with a law reform pushed by the hard right of the Liberal Party and it's all about giving more protections against racial hate speech? No-one will fall for that. And this change today is the first time in a long time a country like Australia could be seen to be taking a backward step on racial hate speech, and they've chosen Harmony Day to do it.
GRAHAM PERRETT, PARLIAMENTARY JOINT COMMITTEE ON HUMAN RIGHTS DEPUTY CHAIR: This is the Human Rights Committee report on freedom of speech and section 18C. I brought it along because the Prime Minister obviously wasn't familiar with it, nor was the Attorney-General. We went to every capital city, received over 400 submissions, consulted widely, received 11,000 individual submissions. We didn't just talk to a couple of people in Point Piper or Brighton. Instead, we spoke to the people who would be affected by this change. And what did we say? The committee where Senator James Patterson used to be in the IPA…all the committee agreed to with the Liberal majority was that we would not change section 18C. Instead, we've got the party room, I don't know what the vote was, but the party room came out from the Coalition and said we're going to change it. They're not listening to the report at all. We clearly stated that there would be consequences, particularly for those one in four Australians who are either born overseas or had parents born overseas. Malcolm Turnbull should hang his head in shame. This is a day of infamy for Malcolm Turnbull.
REPORTER: You said earlier that there was an instance of racial abuse that could occur?
BURKE: That permission would be given for them.
REPORTER: Permission would be given. Can you give an example of exactly what sort of instances you're talking about?
BURKE: Well, I'm not the one wanting to make this change. But there is no doubt the entire push from the Government in wanting to make this change has been that they've said that currently, they believe, it is a curtailment of freedom of speech. So therefore, unless everything they've been saying is untrue, there must be new things that this amendment will allow to be said. It must mean that. And they're wanting in that media conference from Malcolm Turnbull, he's refusing to come to grips with that issue. What do you dress it up as? Actually, no, it's a very strong term. He's the one who needs to answer the question - what is it that he wants to say or wants people to be allowed to say that they're not allowed to say now? The other thing, if I may just touch on, the Government's strategy in introducing this to the Senate first is deliberate. Very few bills are introduced to the Senate first and it is not only money bills that only start in the House of Representatives, and it is no principle that bills in the Attorney-General's department always start in the Senate. It's starting in the Senate for one reason and one reason only. If they can't get it through the Senate, they don't want to force their own back bench to have to vote for it. Well, if they think that the communities around Australia are going to fall for that, they've got another thing coming. Liberal and National Party members are going to have to make very clear whether they believe the statements that they used to make in defence of Section 18 C of the Racial Discrimination Act, and against racial hate speech, or whether they have now changed their views. Starting a Bill in the Senate won't get them off the hook.
REPORTER: The Prime Minister says Labor has no interest in free speech which is why they're proposing the changes. What do you make of that assessment?
DREYFUS: What an absurd thing for the Prime Minister of Australia to say that the Australian Labor Party, with a proud history of defending free speech in this country, does not care about free speech. It's an absurdity just to state it. This is not about free speech at all. Section 18C of the Racial Discrimination Act is paired with section 18D which protects free speech. It protects comments on political matters. It protects, as my colleague Graham Perrett reminds me, cartoons and some of the decided cases are, indeed, about cartoons, in which the courts have held that cartoons are protected by section 18D. So for the Prime Minister to suggest that this is either about free speech, or worse, and completely improperly and incorrectly, that the Labor Party doesn't care about free speech, what a nonsense. He needs to explain what it is that he says that Australians should be free to say. What type of racist hate speech does he want screamed in the street? What kind of racist hate speech does he want published on Facebook or Twitter? What kind of racist hate speech does he want to hear children exposed to in schools? Or people with dark skins walking on the streets exposed to? That's the question that he won't answer. He can't answer the question about what successful claim shows that the law needs to be changed. He can't answer any questions about it. He's talking nonsense in suggesting that this law is a strengthening of protections. It's not. Let me repeat it. It is a weakening. It is a weakening of protection against racist hate speech. It is a moving of the line that we have drawn against racist hate speech for more than 20 years in the wrong direction and he's done it on Harmony Day.
REPORTER: Can we get a sense of what sort of incident do you think could potentially come under the change that would not be covered by "harass "or hate speech?
DREYFUS: It's not a question for us to answer. It is the Government changing the law. And I am predicting that there are forms of racist hate speech which now fall on the wrong side of the line and can give rise to complaints to the Human Rights Commission, and if they are not resolved, complaints to the Federal Circuit Court or the Federal Court of Australia. Complaints that can now be made will now not be able to be made because they are seen as insufficiently serious.
REPORTER: Like what? You say you predict it? Like what?
DREYFUS: It is not for me to give specific examples. I invite everyone here to go away and read the 20 years of decided cases. That will give you an idea of the kinds of cases which have been held to contravene section 18C. I'm going to read out what the now-High Court Chief Justice said in a case when she was a Federal Court judge in 2001. She said, "To offend, insult, humiliate or intimidate, are profound and serious effects not to be likening to mere slights." Now, what will happen if this law is weakened in this way by removing the terms "offend and insult", any court interpreting the amended law will say - we no longer have to concern ourselves with "offend or insult". We are only going to look for "intimidate and humiliate and harass". "Harass" is a verb which describes a course of conduct, whereas "offend and insult" do not. So this is not merely a prediction. This is a very confident reading of the established law on this section. The established law on this section, looking not just at now Chief Justice Kiefel's quote. Showing that it is a provision reserved for serious cases, by changing the law in the way that the Government has proposed, that bar will be put higher and instances of racist hate speech, instances of abuse, instances of insulting and offending other Australian citizens, will no longer be caught by the section. That's the intent of the right wing of the Liberal Party which has yanked the Prime Minister's chain on this matter and that's what will happen. And it's not for me to give you particular examples of racist hate speech. I'm simply saying that it follows as night follows day. If you take out the words "offend and insult", if you replace them with the word "harass", you are weakening the statute, you are raising the bar, you are making it harder for people to complain. You are reducing the protection against hate speech in this country.
REPORTER: Mr Dreyfus, to what extent do you think that this will development will harm the chance of Australia getting a seat on the Human Rights Council?
DREYFUS: How can it do other than harming Australia's chance to get a seat on the human rights council. Under the International Covenant on Civil and Political Rights and the International Convention For Elimination of All Forms of Racial Discrimination, because it is those two international statutes that this law complies with, or fulfils. How can it do anything other than harm Australia's chances of getting a seat on the Human Rights Council, that we are running away from our obligations to protect the human rights of Australians? Because that's what this change will mean. It is a running away from our obligations. It is a weakening of the protections and no explanation has been offered by the Government, other than a hollow claim that a law which is weakening protections is somehow strengthening it.
REPORTER: Obviously we've spoken about 18C but what about the changes to boost the Human Rights Commission to throw out vexatious complaints early on. Is that something that Labor supports?
DREYFUS: We've said all along that all parts of Australia's laws have to have procedures looked at constantly to make sure that the procedures are working well. And many of the changes that were put forward by the Joint Committee on Human Rights, a number of them actually put forward directly by the Human Rights Commission itself, we think seem to be sensible changes. We'll have to look at the legislation that the Government brings forward, but in principle, the changes indicated seem to be sensible changes.
REPORTER: Just on a related statement regarding yesterday’s Multicultural Statement. Are you comfortable with what seems to be a marked shift towards an emphasis on integration, rather than diversity, within that statement? And does Labor support that?
BURKE: I was amused. I saw the front page of one much the newspapers saying how revolutionary it was to be talking about integration. And I went back to some clippings from when I was Shadow Immigration, Integration and Citizenship Minister in 2007. And the same paper had the same article on the front page, only it was about me. If I can explain very simply. Integration and multiculturalism are part of the same story. If you keep everything separate, you've got segregation. If you whack everything together and say none of it has any identity, that's assimilation. Where you create the salad mix where everything keeps its own integrity, but together you get a national flavour, that's multiculturalism and integration. Always has been. I think that they got away with some good spin and I think that a couple of people who wrote that article had forgotten what the same paper had published about a decade earlier.
REPORTER: You don't see a substantive shift at all?
BURKE: It's not a shift of what I've been saying my whole time in Parliament and my party's belief. Integration has always been completely in step with multiculturalism. It's the same concept. Thank you.