Bills - Human Rights Legislation Amendment Bill 2017 - Second Reading


Senator IAN MACDONALD (Queensland) (13:40): I want to contribute a few words to this debate on the Human Rights Legislation Amendment Bill 2017, mainly in my role as Chair of the Legal and Constitutional Affairs Legislation Committee, which inquired into this piece of legislation on behalf of the Senate. This, of course, is not a new issue. It is not a new proposal even. I remind those who might be listening that the coalition went to the 2013 election with a commitment to either abolish or substantially review section 18C of the Racial Discrimination Act. Senators may recall that 18C became almost a household word following the prosecution of a columnist, Mr Andrew Bolt, under section 18C of the act in 2011. At the time, the then Prime Minister said that it was the coalition's view that freedom of speech is very, very important, and it was important to ensure that we did not have racism in this country. Mr Abbott said, on behalf of most coalition parliamentarians at the time, I think, that we believed that Mr Bolt should not have been prosecuted under that section. So this issue has been around for a long time, but particularly since it hit the headlines at the time of 'Boltgate'.

Following the 2013 election, the coalition did indicate that there would be legislation introduced into the parliament that year to ensure that the Human Rights Commission carried out the role that it was designed for. It was the view of the government then that the commission was being too narrow and selective in its view on human rights. At the time, the government said that it was going to enact some structural reform that the commission president herself had been for looking for.

My only regret is that it has taken this long to get to a review of section 18C. I pause to think what would have happened had the government pursued its intentions back in 2014, rather than delaying till now. Perhaps Mr Leak's untimely death might not have occurred. Perhaps the university students who were dragged through an intolerable couple of years of their lives might not have been in that predicament, had the government moved on that review following the 2013 election, as we had indicated at the time. I understand the reasons for that, but there was clearly building, within the Australian community, an understanding that 18C could not stand, because of the way it had been interpreted in the past. This was reinforced by the QUT students case, the facts of which Senator Bernardi has just mentioned and which I will not repeat. But to most fair-minded, ordinary, average Australians—the reasonable Australian—that was an outrageous abuse of power by the Human Rights Commission, and it drew attention to the need for reform.

It was such that, as Senator Bernardi said, he introduced a bill that was co-sponsored by—from memory—12 or so other senators, of which I was proudly one, to remove the words 'insult' and 'offend' from section 18C of the Racial Discrimination Act. That was, as I recall, a bill that had the support of a number of government senators and a number of the crossbenchers. I am fairly confident that I can say Senator Leyonhjelm was one, and I suspect Senator Hinch might have been one of those who co-sponsored that bill as well. It was really the outrageous application of 18C in the QUT case that caused that coming together of minds that saw the need to change.

One of the most outrageous actions of the Human Rights Commission in the QUT case was, of course, that a number of young students were accused of racial vilification in what I think most Australians would think was a fairly simple comment—again, Senator Bernardi has given the details of that—but these students were not even told about it for some 18 months. That defeats one of the basic principles of natural justice: if you are accused of something, you must at least be told about it and must be given the right to mount your defence. In the case of these young students, they were not even told about it. So, for 18 months, they lived their lives unaware that they could be dragged before the Human Rights Commission and, worse, they could end up as respondents in a lawsuit for $250,000, which none of them, as law students, would have had.

In fact, one student, when he did first learn about this, was so petrified at the prospect of having to pay $250,000 in damages plus legal costs that he took the easy way out—and I do not blame him—and paid $5,000 go-away money, just so the complainant would not proceed in a legal suit against him. The others, fortuitously, decided to fight it, and in that they were assisted by one of Australia's best senior counsels, Mr Tony Morris, who, as I understand it—I am not privy to this, of course, but I understand from news reports—did the work for free. All congratulations go to Mr Morris for standing up for the right of freedom of speech by helping these young people.

The Human Rights Commission, I repeat, for 18 months did not even tell the people being accused that they had been accused. In that intervening period, the tracking of some of the evidence that may have been available about emails that had passed from one party to another party to another party had been lost. Of course, when the subsequent civil lawsuit got to the courts—these are my words, not the judge's—the case was laughed out of court. I understand that costs are being awarded against the complainant—unlikely, though, ever to be paid. That is the background to this whole sorry saga. The QUT case particularly galvanised public support for the move to have some review, some redress, some amendment and some further consideration of 18C.

And then we all know, because it was in relatively recent times, the Bill Leak cartoon—a very graphic cartoon, a very telling cartoon, not a racist cartoon at all. No-one could suggest that that was racist except the Human Rights Commission. One of the commissioners—although he denies it and has done so at a couple of the committees that I have presided over—it is clear, was letting people know that if they were offended they should contact him or contact the Human Rights Commission. If they did, he then made the point, rightly, that he was not the one who determined it, but his colleague the President of the Human Rights Commission would become judge and jury of a complaint which one of the commissioners at best advertised and at worst encouraged to be made. No matter where you are in Australia—other parts of the world might be different—no-one could consider that that was fair and proper practice.

Hence, the government, somewhat belatedly, but better late than never, some might say—although I am not sure that Mr Leak's family would say that—has brought forward legislation to address this particular section. But it did not do it overnight. The government set up an all-party joint committee of the parliament that deliberated—I think—for over two months, had a number of meetings, assessed the evidence, read all of the submissions, discussed what the committee's conclusion should be and came forward with a very good report under the chairmanship of Mr Goodenough MP. The committee decided to take the view that there were several ways that this could be addressed and gave the government—because they were reporting to government—the option of several ways to address this. They also made some very sound and strong recommendations as to the process that should be followed, some of which, I have to say, Professor Triggs had spoken about in one of the estimates committees before which she appeared. And so the government considered that report that had been carefully put together by members of that committee and came forward with a piece of legislation which was then referred, as I said earlier, to the Legal and Constitutional Affairs Legislation Committee, which I chair, for a brief look at that particular bill being proposed by the government.

It was not a terribly complicated piece of legislation from the government. It had been, as I said, spoken about for almost four or five years. Everybody had argued it back and forward. The joint committee had looked at it over a couple of months or more. And so the Senate referred the bill, when it came to this chamber, to my committee to have a quick look to see whether it was an appropriate bill and one that should be supported by the parliament.

The committee did call submissions quite quickly. We were not really interested in the substantive issue of 18C, because another committee of this parliament had already spent two months going through that in very fine detail. We wanted to look at some of the actual provisions of the bill and to see if there were suggestions that could be made to improve the bill, understanding that it was the government's intention and the government's prerogative to bring a bill forward as the government saw fit. The committee did take evidence over the course of last Friday morning and had a number of written submissions, and we relied heavily on the hundreds of pages of Hansard evidence given in the other parliamentary committee that had looked at this very carefully.

I should mention in passing that there was some complaint that not everybody who wanted to appear before the committee was able to appear. The Institute of Public Affairs was one of those. They wanted to come and appear, but the committee said, 'No, we've selected a narrow group of people to address the important issues, and that's what we're going to do.' We had the Human Rights Law Centre or the Multicultural Legal Centre—I have got it somewhere here in my notes—and they wanted to bring along an Indigenous group. The Labor Party made some big issue about that. These groups had all had the opportunity to put their point to the other committee, and my committee came to the conclusion that, if you invite groups of people knowing that there are different groups of those people who have one view and others that have another view, you start repeating what the previous committee had done. So we decided to restrict it.

The committee found that the bill would make overdue reforms to the Racial Discrimination Act, strengthening the protections against hateful speech based on race, colour or national or ethnic origin on one hand and at the same time enhancing the rights of freedom of speech that all Australians enjoy.

In its consideration the committee noted that the term 'harass' had been recommended by the joint committee that had dealt with this committee for some time. The committee thought that using the term 'harass' was an appropriate broadening of the scope of the section in a way which did not impinge upon legitimate freedom of speech. The committee went on to say that some of the recommendations of the joint committee report included many that were instigated at the request of the commission itself to improve administrative function and government, but the committee in its wisdom also thought that the government should consider some amendments to this bill before us today. Whilst we did not actually recommend the amendments, we did suggest that the government should contemplate that the bill should be extended to existing as well as new complaints. Existing complaints that were in the system, the committee thought, should probably be covered by this amending bill, and we have asked the government in our report to have a look at that and to see whether they think the government might be able to amend it accordingly.

We also considered that it was worthwhile drawing the attention of the government and the parliament to a particular issue for consideration, and that was to improve the future interpretation of some of the bill's provisions. In the public hearing some witnesses argued that the term 'harassment' was not sufficiently defined in the explanatory memorandum. Given that the term was central to the amendments made by the bill, the committee considered that the government could consider explaining this term more fully so as to give direction to interpretation into the future. That is the matter which Senator Bernardi also mentioned in his contribution, and I believe Senator Bernardi intends to move some amendments towards that. We will hear those debated later on, but, for the moment, the committee has asked the government to have a look at that and see whether a comment in the explanatory memorandum could be made that would better define 'harassment' and 'harass'. Senators will know that the explanatory memorandum and the second reading speech can well be used by the courts later on as an aid to interpretation, and that is why the committee thought that a neater way of dealing with it rather than through Senator Bernardi's legislative proposal might be for the government to mention this in some amended explanatory memorandum or in a second reading speech.

With those couple possibilities, the committee which investigated this bill quite fully was very keen in its recommendation that the bill should be passed, and I urge the Senate to follow the committee's recommendation.

Debate interrupted.

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