Racial Discrimination Law Amendment (Free Speech) Bill 2016 - Second Reading


Senator IAN MACDONALD (Queensland) (10:23): I appreciate the Racial Discrimination Law Amendment (Free Speech) Bill 2016 being brought forward by Senators Leyonhjelm, Day, Hanson, Burston, Culleton, Hinch and Roberts. I have some sympathy with the bill, although I think it perhaps does go a little too far. As you know, I am a co-sponsor of the other bill before this chamber, in much the same terms as this one except that it seeks to remove only the words 'insult' and 'offend' and leave the words 'humiliate' and 'intimidate' in 18C. I have thought about this a bit. I do think having 'insult' and 'offend' is just ridiculous in today's day and age, and the cases quoted by Senator Paterson and others in this debate show just how ridiculous this particular provision is in its entirety. I would certainly support any move to remove 'offend' and 'insult', but I think removing 'humiliate' and 'intimidate' is perhaps a step too far.

I might say that my thoughts in this view are supported by my political party, the Liberal-National Party of Queensland, which at the last state convention—I think there were over 500 delegates there—resolved that the federal government should be urged to amend 18C to remove 'offend' and 'insult'. As recently as last month, my own federal divisional council of the LNP, meeting in my home town of Ayr—it is George Christensen's FDC but it is the FDC in which I live, so it is the one I go to—also moved a resolution along the lines of amending 18C by removing 'offend' and 'insult'. So my position on this is well supported by my own political party.

Perhaps both our bill, which is before the parliament, and this bill are a fraction premature. As I understand it, the Attorney-General has referred to the Parliamentary Joint Committee on Human Rights an inquiry to report into all issues relating to freedom of speech in Australia. The Attorney has asked the committee specifically to inquire into and report to parliament by 28 February 2017 on the following matters:

1.   Whether the operation of Part IIA of the Racial Discrimination Act … imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss. 18C and 18D should be reformed.

2.   Whether the handling of complaints made to the Australian Human Rights Commission … under the Australian Human Rights Commission Act … should be reformed, in particular, in relation to:

a.   the appropriate treatment of:

i.   trivial or vexatious complaints; and

ii.   complaints which have no reasonable prospect of ultimate success;

b.   ensuring that persons who are the subject of such complaints are afforded natural justice;

c.   ensuring that such complaints are dealt with in an open and transparent manner;

d.   ensuring that such complaints are dealt with without unreasonable delay;

e.   ensuring that such complaints are dealt with fairly and without unreasonable cost being incurred either by the Commission or by persons who are the subject of such complaints;

f.   the relationship between the Commission's complaint handling processes and applications to the Court arising from the same facts.

The committee has also been asked to inquire into:

3.   Whether the practice of soliciting complaints to the Commission … has had an adverse impact upon freedom of speech or constituted an abuse of the powers and functions of the Commission, and whether any such practice should be prohibited or limited.

4.   Whether the operation of the Commission should be otherwise reformed in order better to protect freedom of speech and, if so, what those reforms should be.

That reference will look into these issues. It is joint parliamentary committee chaired by Mr Ian Goodenough. Naturally, because it is joint, it contains members of all parties. It is a good committee to seriously look into all of these issues. Those who have spoken in this debate who have a particular view should make sure that their views are known to this committee if they are not members of the committee. Of course, as we senators know, we can all put ourselves on that committee as participating members, so we can all participate directly should we want to.

It is curious that the terms of reference make a not very veiled reference to some of the atrocious procedures and actions we have seen in this country in recent times. Senator Paterson rightly referred at length to the QUT case, the Bolt case and the Leak cartoon case. The way that the process has been handled by the Human Rights Commission is nothing short of scandalous. Those who follow parliamentary debates will know that I do not have a high regard for the commission in its present form. I have very grave concerns about the president of the commission and the way she and the race relations commissioner have handled some of these issues.

The case of the Queensland University of Technology, which is a major and significant university in my home state of Queensland, was appallingly handled. All credit to the three students that when they were told 15 months after the event that they were the subject of the complaint they stood up to the Human Rights Commission and the complainant. Their position was ultimately justified by the Federal Circuit Court. I also should thank Mr Tony Morris who, I understand, at his own expense assisted those three students in their hour of need. There were other students who were also subjects of the complaint who just paid up. They paid 'go away' money so they would not have to be involved in a court case and possibly subjected to fines of $250,000, which had been sought by the complainant. It was just appalling behaviour by the commission, by the complainant and by the whole system.

To Professor Triggs's credit, she did tell me at the last estimates committee hearing—it was one of the things she did interact with us on; there were some other things where she denied having said certain things, but we will follow that up later—that, 'I would be very happy indeed to work with you and others who might consider amendments that would meet your concern.' So I think it would be very helpful to open up a discussion to examine the powers of the commission in this regard. Professor Triggs was indicating perhaps a fair point—that if the laws are wrong it is not up to her to fix them; it is up to parliament to fix them. In that regard, I do agree with her. But, having said that, the way the Australian Human Rights Commission acted in that particular instance was a disgrace.

In the subsequent instance of the Leak cartoon, the commissioner was out there touting for business almost and encouraging people to complain. As I read in the paper, there were a couple of complainants in Western Australia who did complain only because they had been encouraged to by the commissioner and then, after they thought about it, they withdrew their complaint. I think that clearly shows that they were neither insulted nor offended by the issue until they were egged on by a commissioner. That, to me, is unfortunate. I am pleased that the committee will be having a look into this issue.

As I say, I would not support this bill at the present time. The bill that I give preference to is the one that just seeks to remove 'insult' and 'offend' from 18C. I think this one goes a little bit too far. But I think both of them are perhaps a bit premature. I think we should wait for the report from the Parliamentary Joint Committee on Human Rights to see what they think about this whole issue. I am aware that there are other senators who want to speak on this important debate, so I will conclude my remarks there. But I again thank the proponents for at least bringing this forward so that we can legitimately, maturely, sensibly and like adults discuss these issues which are of great importance to the freedoms we expect and enjoy in Australia.

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