The Bill I introduce today is the same in substance as the Bill that Senator Day introduced in 2014, of which I was a co-sponsor.
Section 18C currently states that it is unlawful for someone to ‘offend, insult, humiliate or intimidate another person or a group of people’ based on their ‘race, colour or national or ethnic origin’.
This Bill merely seeks to remove two words: ‘offend’ and ‘insult’.
It is a very modest change, and one that is supported by a wide range of Australians, including Julian Burnside, David Marr, Justice Robert French, Justice Ron Sackville, Paul Howes, Mark Latham; along with other lawyers, academics and commentators across the political spectrum.
We are not talking here of removing section 18C completely.
It would still remain unlawful for someone to humiliate or intimidate another person or group based on their race, colour or ethnicity.
I believe that this is an elegant solution that strikes the right balance.
Offending or insulting someone should not be cause to drag someone before a commission or a court.
‘I’m offended therefore you’re wrong’ – as Jennifer Oriel put it – has no place in a modern legal system and democratic society (Oriel, 2016).
This is echoed by the treasurer of the Law Council of Australia and a past President of the Law Society of SA, Morry Bailes, who recently said:
‘I neither condone offence nor insult on racial grounds; indeed, I am implacably opposed to it. But I do treasure the right to allow citizens to speak freely.
‘We do ourselves a great disservice as a society utilising the Parliament to enforce the niceties of language. If you wish to be a rank racist and offend and insult, let society judge your actions rather than the courts (Bailes, 2016).’
Today I wish to acknowledge the co-sponsors of this Bill.
It is an extraordinary achievement that so many of my colleagues – from so many different political parties – are putting their names to this Bill.
It demonstrates how significant free speech is for so many Australians.
And it should give the Australian people confidence that members of this Senate can come together to work for the benefit of the nation and that we will stand up to represent their concerns in this place.
Law Reform Commission conclusions
Even one of this country’s most influential legal reform bodies concludes there are valid concerns about the inclusion of the word ‘offence’ in section 18C.
The President of the Australian Law Reform Commission (ALRC) has said that ‘by extending to matters only likely to offend, section 18C may go beyond the permissible limitations on freedom of speech’ set out in international law (Croucher, 2016).
And the Law Reform Commission echoed these concerns in its report:
‘… 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’ (ALRC, 2015).’
Equivalent provisions in New Zealand and Great Britain do not cover offensiveness, and Canada recently repealed its broad provision because it conflicted with free speech.
Also, it was found that 18C is broader than article 20 of the International Covenant on Civil and Political Rights.
This led the Commission to conclude that:
‘In some respects, the provision is broader than is required under international law, broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge (ALRC, 2015).’
Such conclusions lend significant weight to amending 18C.
As does the views of Justice Ron Sackville, a former Federal Court judge, who says that ‘the balance at present is not quite what it should be (Merritt and Martin, 2016).’
Like this Bill, he proposes removing the words ‘offend’ and ‘insult’ – and then goes further in removing ‘humiliate’ and ‘intimidate’, replacing them with ‘degrade, intimidate or incite hatred or contempt’ – a much more stringent standard (Doig, 2016).
And he believes an objective test based on community standards should be used instead of the more subjective test in the current Act.
Given that some of the best minds in our legal system hold serious concerns about section 18C, surely it is time to make a modest change to it in order to better protect free speech.
Unfortunately, the Abbott Government took a backward step two years ago when it decided not to act on 18C.
But I welcome recent comments by the former Prime Minister, Mr Abbott, who admits he got it wrong.
He said that in hindsight, he ‘should have persisted with a simpler amendment along the lines of Senator Bob Day’s … private member’s bill (Abbott, 2016).’
Our current Prime Minister had also indicated his support for what I’m pursuing here today.
Just last year he told Andrew Bolt that he didn’t think that removing ‘offend’ and ‘insult’ ‘would have any negative impact’ and that he ‘was very comfortable about that (Breheny, 2015).’
So I am disappointed – along with many Australians – that the Prime Minister and others now say that amending 18C is ‘not a priority.’
Surely the Government is capable of doing two things at once.
In fact, this Bill makes things even easier for the Government … the hard work has been done: a Bill has been drafted, we’ve had the negotiations and all that’s left for the Government to do is get on board.
Some have said amending 18C isn’t a priority because it will not create extra jobs or build more roads or reverse the deficit.
Yet this argument rings hollow when this Government continues to put significant resources and time into Indigenous Constitutional recognition and the homosexual marriage plebiscite.
Removing two words from the RDA is more modest than the policy of reform the Coalition took to the 2013 election; an election they won convincingly.
Coalition policy at the time said:
‘Prohibitions on inciting racial hatred or intimidation of particular groups should be focused on offences of incitement and causing fear but not a prohibition on causing offence (Liberal Party, 2013).’
It’s now time to return to defending this most basic principle – contained in our Party’s statement of beliefs – in order to stop the detrimental impact that 18C has on our society.
I am pleased that 19 of my Senate colleagues are prepared to stand for what is right and have the courage of their convictions in supporting this Bill.
18C infantilises us
Reform of 18C is important.
Laws like 18C infantilise each one of us.
It erodes our ability to challenge ideas in open debate.
It assumes that we need the law to protect us when we are offended, rather than trusting Australians to assess and repudiate views.
Brendan O’Neill put it well when he said:
‘Hate-speech legislation is not only an attack on the speaker — it is also an attack on the rest of us, the audience. It undermines our right, and our responsibility as citizens, to expose and confront bigotry; to use the tools of freedom and reason to challenge those who say genuinely racist things (O’Neill, 2016).’
‘Censorship … makes us lazy and childish and stupid. It turns us into infants who don’t have to worry about what is right and wrong because that has already been decided for us by our good, gracious rulers and betters. It weakens our moral muscles; it retires our moral judgment. It encourages passivity, thoughtlessness, obedience — all of which are anathema to a healthy democratic society (O’Neill, 2016).’
The remedy for offensive and insulting words is more speech, not less.
In recent years, I have had the following levelled at me:
the world will be a better place when you and your ilk of conservative, out of touch, middle-aged white men finally expire.’
‘You are the lowest common denominator of society, and are the definition of white trash.’
‘You, as a wealthy, white, Christian male, appear to have a revolting sense of entitlement …’
Under current 18C I could probably take each of these people to the Human Rights Commission.
Their comments are based on the colour of my skin and could be deemed offensive by white people.
But I won’t do that – although I do see the merit in Senator Leyonhjelm taking the Commission to task in order to expose potential double standards in how 18C is applied.
I can counteract these views through debate and discussion – in the battle of ideas.
That is the way to a better society.
Bad ideas can be brought out in the open rather than festering in the shadows, so that they can be challenged and exposed for what they are.
Citizens become more engaged as we entrust ourselves to consider ideas and formulate opinions.
More freedom in the exchange of ideas allows us to develop thoughts, find the truth and foster a more transparent, open and honest society.
To conclude, I don’t want to see our country turn into a place where someone is arrested for quoting the Bible, or taken to court for calling a religion ‘stupid’, or sentenced to jail for singing a song at the football.
Sounds fanciful, but these things have happened in Britain and France.
We have an opportunity in this Parliament to make a difference, to fortify one of our most fundamental freedoms from the tyranny of censorship and group think.
I am encouraged by the support of the thousands of Australians who have signed my petition, and others who have engaged in the debate.
And I am heartened by the support of my colleagues in this place, from many different parties, who are willing to put principle above all else in pursuit of this ‘freedom par excellence’.
In the coming debate, I urge all involved to remember these words by a young Australian, Matthew Lesh:
‘Ultimately, freedom of speech is meaningless if it applies only to those with whom you agree.
‘It works only if you defend the right of people you fundamentally disagree with to express ideas you find deeply offensive (Lesh, 2016).’
Offending or insulting someone should not be cause for legal action.
The law as it stands can have damaging implications for our freedoms and way of life.
This Bill seeks to defend a founding principle of our democracy; to maintain a fearless pursuit of truth.
The removal of two words. That’s all this Bill is asking for.
It’s a common sense solution for a free and vibrant Australia.
I commend this Bill to the Senate.
Source Parliament of Australia BILLS Racial Discrimination Amendment Bill 2016
Second Reading Page 255 Senator BERNARDI (South Australia) (15:59):