Senator Penny Wong

I rise to speak on the Human Rights Legislation Amendment Bill 2017, and I start by making this point: it says something distressingly sad about this government that it wants to legitimise offence, insult and humiliation all in the name of free speech—a value that gives expression to one of the cornerstones of our democracy. It is even more distressing that this government, captured as it is by a small group of ideologues, is prepared to change the barrier for what may be racially discriminatory from a sense of personal offence to one of fearfulness, for that is exactly what the changes proposed by this government to the Racial Discrimination Act and the Australian Human Rights Commission Act achieve. They declare it permissible to employ verbal abuse to affront and shock people, drawing the line only at the point of harassment. Harassment is about generating fear; it is not about protecting freedom. The boundary that Senator Brandis wants to set is harassment, the fear of being pursued and harried, rather than the protection of people’s dignity. But I suppose that is what one might expect of someone who proclaims the rights of people to be bigots, and it is certainly consistent with what one may perceive to be both the instinct and the aspiration of the Attorney-General.

The Racial Discrimination Act has been on the statute books for over 40 years, and it has served our community well. It was one of the many legacies of the Whitlam government to us, and the section that has caused so much discussion in recent times has been with us for some 25 years. But, typical of a government bereft of any fresh or constructive ideas, this government’s preferred way forward is to go backwards. Let us recall that the former Prime Minister’s modus operandi was to smash down whatever the Rudd and Gillard governments had constructed—witness the reckless approach when it came to climate change policy. For his part, the present Prime Minister chooses to do little more than dance to his predecessor’s tune—as I have previously described him, the organ-grinder’s monkey.

Senators will remember that the Prime Minister has said on no fewer than 16 occasions that amending the Racial Discrimination Act is not on his agenda. Well, now it is. Whilst imitation might be the sincerest form of flattery, what this tells us is that the Prime Minister has no control over his own agenda. His is set for him by the ideologues, and he simply obeys.

Laws are amended when they have been found to be inadequate by the courts or when they are no longer able to meet contemporary legal demands, and this government has singularly failed to demonstrate why this act needs changing. Is the government introducing these amendments because it has nothing else to do, a sort of ‘make work’ program? Or is it pursuing a more insidious purpose—to cuddle up to One Nation in an attempt to save seats? What is it that the Attorney-General wants to say that he cannot say now? Why does he want to change good law into bad law? Why does he want to send a signal to Australians that more racial abuse is permissible? Because that is the precisely the signal that is sent not only by the legislation that is before the chamber but by his rhetoric. Why is it that the policy preoccupations of the government, at least as they are paraded in this place, so constantly persuade us that we are in some kind of parallel universe where positives become negatives and vice versa?

Why is it that this government seems to be determined to subject us to a constant amateur-hour channelling of JRR Tolkien, transforming this parliament into a kind of Mount Doom? Why is it that it seems to model itself on the grotesques who live in the land of Mordor? Why is it that virtually everything it touches—the Racial Discrimination Act, for example—is left tarnished and spoiled as though it had been mangled by a gang of orcs?

The answer lies in the desperate need shown by the Leader of the Government in this place to acquire a bit of character. Since he has not, in all the time he has been in this place, provided the slightest evidence that he has anything that might be described as character, he is constantly grasping for the illusion of it. He might bask in the title of ‘leader’ but, in truth, he is a serial misleader. He has repeatedly misled the parliament and the Australian people over his involvement in the Bell Group affair. He has misled the parliament over claims that he consulted the former Solicitor-General, Justin Gleeson SC, prior to amending the Legal Services Directions. He has misled the public when he claimed to have consulted the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, before establishing the Don Dale Royal Commission when in fact he had not. In some jurisdictions it is three strikes and you are out. Whatever character this Attorney-General lacks, the Prime Minister has demonstrably failed to make up for it, because he should have sacked him years ago.

I have to say for the Attorney-General to arrive at the position in which he currently finds himself is a little sad. In fact, only the most hard-hearted people in this place would fail to feel a little sympathy for him. His is a lonely and thankless job: the leadership of a dysfunctional government in this place with a rabble at his heel and a rabble who is constantly on the lookout for somewhere to send him. One day it is the prospect of a High Court appointment—I presume the government is not going to be silly enough for that. Another day it is the prospect of appointment as High Commissioner in London—a suggestion that has led UK based Liberals to beg the Prime Minister to spare them the indignity of having to share London with the Attorney-General. But at last he has found his purpose, a token that might give meaning to his role as the first law officer and a cause that appears to perfectly suit his instinct and aspiration: to water down the Racial Discrimination Act. He wants to water it down so that he can say something he cannot say now: that he has found a cause that truly matters to him. To continue with the Tolkien allusion: he has found his ‘precious’.

Gollum was not the most articulate of Tolkien’s characters. Explanation was not his forte. In that, he displays a character not dissimilar to that of the Attorney-General, because this man has been totally unable to explain why he needs to amend 18C of the act. He has not been able to explain what he wants to change the language or why a term like ‘harass’ might have more legal force than ‘offend, insult and humiliate’.

One might ask: if one is to change the intention of 18C, would a word like ‘vilify’ or ‘degrade’ work better than a word like ‘harass’? But I think the answer is lurking in the very term the government has chosen to use, because ‘harass’ has connotations of the pursuit, of frequency, of repetition, of interference, of threat and even of incipient violence. It evokes the emotion of fear as distinct from loathing or disgust. That is precisely the shift in meaning that this amendment affects. Taking offence at racial vilification is no longer enough. The victim of racial vilification now would have to be fearful, if the Racial Discrimination Act is to apply, and I think that is disgraceful.

It is difficult to determine how the term ‘harass’ would be defined, and I daresay, should this pass—which I hope it does not—the courts would be eventually called on to interpret the proposed amendment. The Law Council of Australia has raised concerns that the term could denote proximity between people and hence not cover situations where racially offensive speech is used in a media article. Neither the Prime Minister nor the Attorney-General have been able to lend any clarity to the purpose of the amendment. Their commentary has both been vague and inconsistent.

I have to say the ducking and weaving from the Attorney-General has not been only in relation to these amendments. His behaviour in this place has been characterised by obfuscation and imprecision, a desire to obscure the truth and to mislead the parliament of the people about his intentions and actions. We all know he spent tens of thousands of dollars of public money trying to hide his diaries from public scrutiny. We all know his refusal to tell the full story in this place about the Bell matter and other matters. We also know he is not unfamiliar with conflict of interest. We have seen that he has a penchant for appointing old friends to well-paid board appointments without being able to indicate whether he did so on the advice of his department, whether he knew his old friend was in fact a Liberal Party donor or whether he acted for a member of his family in a criminal matter. The Attorney-General has clear form. His general mischief, whether as a senator or as an office-holder, begins to make sense when we see him attempt to defend the indefensible: an amendment to a sound and effective law so as to permit racial slurs that are not currently lawful. As I said earlier, what is it that he wants to say now that he could not say before?

As we look at the proposed amendments the Racial Discrimination Act, things get even more curious. Besides changing the language and meaning of section 18C, the Attorney-General is also proposing to change the objective test for determining a breach of 18C by introducing ‘a reasonable member of the Australian community’. As presently drafted, the statute’s objective standard is whether an act is ‘reasonably likely, in all the circumstances’ to have the relevant effect—offence, insult or humiliation. It is very difficult to understand the reason for such a change. Is it, for example, designed to prevent a court from taking into account the views and sensitivities of a specific ethnic or racial group on the grounds that ‘a reasonable member of the Australian community’ may not know or appreciate the sensitivities of the various communities that make up our multicultural Australia?

This is again a matter of concern to the Law Council of Australia, as it should be. Had the government been able to display any sense or sensibility at all, it would not have attempted to fool around with 18C or the objective standard. It would have acted as all sensible government act. It would have left well enough alone.

Tinkering with perfectly sound legislation and the associated procedures for complaints handling is always risky, not least of all because of the risk of unintended consequences—even though the changes may well, in some circumstances, be well intended. That is the real risk of the procedural changes that are sought. There is a real risk that those changes, as recommended by the Attorney, will adversely affect not only those bringing complaints under section 18C for racial discrimination but also the thousands of Australians who are party to complaints for disability discrimination, sex discrimination and age discrimination. But the government cannot leave well alone.

It is impossible to think that the Attorney-General will be successful in his quest to amend the Racial Discrimination Act by watering it down to appease the hard Right of his party. I hope this parliament represents a people who understand what a fair go looks like and, as representatives of a people who value inclusion and harmony, I hope this parliament will demonstrate its abhorrence of anything that might render our community less inclusive or less harmonious. I hope that this parliament will vote this amendment down.

It is a poor reflection on this Prime Minister that he would even permit the proposed amendments to the Racial Discrimination Act to see the light of day. What a disgrace it is that the government dominated Senate inquiry failed to call any Indigenous witness

Not only is it disgraceful, what a profound statement about freedom of speech, about who they have in mind when they lecture us all about freedom of speech. How is it that the men—and women, but in this case the Prime Minister and the Attorney-General—who stand up in the parliament and say, ‘We believe in freedom of speech’, then deny Aboriginal Australians and their representatives the right to speak at a committee? That is a profoundly important statement about their values. It is one that reflects most poorly upon them. The Australian people are far better than the behaviour and agenda of the government in relation to this legislation. The community wants to see the parliament toss out proposed amendments to section 18C.

I want to end on this point. In voting on this, and in discussing this legislation, I hope that people in this place can not only think of the rhetoric and the principle and the politics, I hope that in this place they can also have in their minds the experience of the young Muslim woman on the bus or the young Asian boy in the street, or some other member of Australia’s multicultural community who is abused because of who they are. Not only is the amendment before this place wrong, but also in many ways what is most wrong and what has been most damaging has been the signal that has been sent by a Prime Minister who believes he is a Liberal moderate, the signal that he is sending in cahoots with this Attorney-General, that this sort of racial abuse is more permissible. I ask my colleagues in this place: think of the people who this legislation is designed to protect and think of the principle, the message, that this legislation seeks to send out to the community, because what it says to the community is, ‘We do not believe in this modern multicultural Australia that it is okay for you to be abused because of your race.’ That is a principle that we should all stand for.

Chamber Senate on 28/03/2017 Item BILLS – Human Rights Legislation Amendment Bill 2017 – Second Reading Speaker :Wong, Sen Penny

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