Subject/s: 18c, Holocaust denial
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
SKY NEWS WITH DAVID SPEERS
TUESDAY, 21 MARCH 2017
Subject/s: 18c, Holocaust denial
DAVID SPEERS, HOST: With me now is the Shadow Attorney-General Mark Dreyfus, thank you very much for joining me this afternoon. Just to pick up on that point, the government wants to make it an offense to harass someone on racial grounds and that George Brandis says means “tormenting or bothering” someone because of their race. Is that the definition of harass and do you accept that is a better definition and a better law than what currently stands?
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Not at all. What this clearly is David is a weakening of the law, and extraordinarily, in fact tragically, it’s on Harmony Day – the international Day for the Elimination of Racial Discrimination. Of all days that the government should pick, this day to announce a change that is not needed, that they can’t justify, and amounts to a weakening of the protections against racial hate speech.
SPEERS: How does it weaken the law if you take out offend, insult and humiliate but put in “harass”?
DREYFUS: When Parliament changes the law, the very first court that comes to interpret the changed law will proceed on the basis that the Parliament intended there to be a different meaning in the law. And in particular what the next court to look at this – if this dreadful proposal goes through – will say is well, the Parliament now doesn’t mind if people are offended. The Parliament doesn’t mind if people are insulted, the Parliament doesn’t mind if people are humiliated by racist hate speech. It’s an extraordinary expansion of what is now permitted in Australian law if this goes through.
SPEERS: To put the other side of the argument though, it doesn’t mean it’s OK to offend and insult it just means it shouldn’t be something that should be dealt with by the court, it should be dealt with as part of the discourse. Do you accept that?
DREYFUS: We’ve had a line drawn by the Australian Parliament, that has served Australia really well for 21 years. This government is coming along wanting to rip it up, to create uncertainty in the law, I think it now would be in doubt if this went through that the Bolt case could be successfully prosecuted. I think it’s in doubt that the Holocaust denial, the vile Holocaust denial that’s been dealt with under this provision in a series of cases, could now in fact be held to be a contravention. There is doubt created immediately if you change the law in this way.
SPEERS: You’re saying that you think Holocaust denial would now be allowed in Australia? That is currently prevented by the law?
DREYFUS: I think there’s a very real doubt, and what we’ve had is we’ve got an Attorney-General who says that the current law is overreach. The only possible conclusion that a court or anyone listening to that could draw is that the government of Australia wants to expand the racist hate speech that people should be permitted to engage in and I think that’s disgraceful.
SPEERS: Is it currently though against 18C, a breach of 18C, to deny the Holocaust?
DREYFUS: 18C has been used in a series of cases to deal with vile Holocaust denial statements by a woman called Olga Scully in Hobart, by the infamous Frederick Toben in Adelaide, these are cases that proceeded to the Federal Court of Australia and they were held to have contravened the section. So it’s been very useful to deal with Holocaust denial just as it has been useful to deal with other vile instances of racist hate speech. You’ve only got to read the cases and I suspect the government hasn’t…
SPEERS: You don’t think “harass” though would cover that?
DREYFUS: I’m concerned that it wouldn’t and as I say, a court would hold that there is a different meaning intended by the Parliament. We’ve got the Attorney-General not answering your question – indeed the Prime Minister didn’t answer your question David at his press conference - and the Attorney-General didn’t answer your question in the interview just conducted, as to what successful prosecution under 18C warrants the change in the law. The Attorney-General ducked and weaved, the Prime Minister just refused to answer. They’re also not answering our question – what is it that the government, that the Prime Minister, that the Attorney-General wants Australians to be able to say that they can’t now say?
SPEERS: Just on the Holocaust example though, the judge’s ruling in those cases would have covered intimidation wouldn’t it, which stays?
DREYFUS: What’s happened in these cases, and I’ve been trying to make this point for years now, is that the courts have treated these four verbs: “offend, insult, humiliate and intimidate” as a composite phrase. As one. To be sure, they have sometimes directly said “that’s an offense” or “that’s an insult”…
SPEERS: It’s against the law to intimidate or harass, that wouldn’t cover Holocaust denial?
DREYFUS: Quite possibly not because “harass” to me in its ordinary English meaning, involves some kind of course of conduct. It may not cover a single instance. “Intimidate”, it might or might not be that you would say that Holocaust denial is caught by that, whereas it is not in doubt that because we have long now established decisions in the courts that the words “offend” and “insult” and “humiliate” certainly catch Holocaust denial. Don’t think that I’m just arguing the case here to make sure Holocaust denial is covered…I want all Australia’s multicultural communities – the Jewish community, the Aboriginal community, the Vietnamese community, the Chinese community – every other multicultural community in Australia to be protected by a law that we now know from long experience – 21 years of court decisions – exactly how it works.
SPEERS: To go to the process changes that the government has also announced here, do you support any of those?
DREYFUS: Yes – many of those changes were directly suggested by Professor Triggs and the Human Rights Commission.
SPEERS: The ability to make an early termination on an unmeritorious claim, notification of the person the claim is made against, so that they’re aware there is a claim against them – all of that you support?
DREYFUS: These are…we’ll have to see the legislation obviously David but these are a tweaking of powers that are already there in the Human Rights Commission Act and if it’s felt that we can streamline those processes – this is the same for any governmental or court process. You always want to be looking for ways to streamline it…
SPEERS: There’s one more substantive change though and that is to change the test as to who regards racial intimidation or harassment to have occurred. At the moment under 18C it’s a member of the affected group…
DREYFUS: Well that’s not right. And I don’t accept the descriptions that have been given to the existing court decisions by either the Attorney-General who talked nonsense when he was being interviewed by you before, or the Prime Minister. Not only did the Attorney-General of the Commonwealth Michael Lavarch introducing this legislation say that it was to have an objective test, the legislation itself already uses the words “reasonably likely” and if you go away and read, there have only been 96 decisions David in the 21 years that this legislation has been enforced. There have been several hundred complaints dealt with by the Human Rights Commission but only 96 decisions by courts. Those decisions make it very clear that it is an objective test. So this suggestion by the government that somehow they need to introduce an objective test is wrong.
SPEERS: But if it is just to make clear in the statute that it is a member of the general community that would judge it to be racially harassing or intimidating…
DREYFUS: Of a member of the affected group obviously…
SPEERS: No no no, but the change they’re seeking now is to have, as you know, a member of the general Australian community test that. Would that at least clear up some of the confusion around what the test is?
DREYFUS: It’s already written into the law that it is the general standards of the community that are to be applied but of course it’s the affected group that we need to be concerned with. It’s the Vietnamese person who has been racially abused. It’s the Aboriginal person who has been racially abused, that this section is trying to protect.
SPEERS: So you think it still should be a test of the Vietnamese community or the Aboriginal community..
DREYFUS: I think we’re at cross purposes here David. It’s not a subjective test, it’s not judged now and the law does not say now, that it is to be judged by the subjective view of the member of the affected group. It is an objective test judged by community standards…
SPEERS: OK the government has a different view on that they say..
DREYFUS: I’ll be direct, the government’s wrong – they misstated constantly what the decisions have been of senior judges of the Federal Court, in a whole range of cases.
SPEERS: Well you can have the legal argument of who’s right and wrong in the interpretation of the Act..
DREYFUS: That’s pretty important David.
SPEERS: OK but you think it should be a member of the affected party who tests whether somebody has been racially intimidated? Or a member of the general community?
DREYFUS: We are talking here about racial discrimination against a member of a minority group in our society. We’re talking about racial vilification.
SPEERS: So it should be tested by a member of that group?
DREYFUS: No, it’s judged by community standards of ordinary members of the community but with a clear focus on the member of the affected group. You cannot disregard the member of the affected group. That’s what the law is there for David.
SPEERS: Shadow Attorney-General Mark Dreyfus, appreciate your time this afternoon.
DREYFUS: Thanks David.