Senator RYAN (Victoria—Special Minister of State and Minister Assisting the Prime Minister for Cabinet) (19:32): It is a privilege to be able to make a short contribution to this debate on the Human Rights Legislation Amendment Bill 2017. I do not often speak on legislation that I am not carrying or that is outside the portfolio I represent, but I have spoken on this particular issue on a number of occasions in this chamber as it has arisen over the last few years. It is an issue strongly felt by me and by many of my colleagues. I will not repeat what a number of my colleagues have gone through earlier this evening with respect to specific examples, but there are some issues and some perspectives I would like to highlight.
I have long said that I am a first amendment type of person. I am not necessarily someone who is in favour of a bill of rights, but I have always said that I would not have a problem if there were a constitutional restriction on parliament passing laws abridging freedom of speech.
A liberal democracy depends on the free flow of ideas. A liberal democracy depends on that being sometimes ferocious, sometimes unpleasant, sometimes difficult, but the flow and debate are critical to achieving some of the changes that opponents of this particular bill today are actually lauding in their speeches. Speech in a liberal democracy cannot be the product of a licence by the state.
We have an inherited tradition in this country—founded following the revolution in England and the changes of the 18th century—that says that speech is free unless there is an overwhelming reason for the government to legislate or regulate against it. My colleague Senator McGrath earlier referred to the famous example of not being able to shout, ‘Fire,’ in a crowded theatre.
But underpinning the arguments put forward by those opposite who seek to license speech—and, when they were in government, as I will highlight, they floated proposals to license speech and proposals to regulate the media in a way unprecedented in this country, outside wartime—is the philosophy that somehow it is up to this parliament to grant citizens the right to what they can and cannot say, to define acceptability.
Where there is an immediate risk to someone, where there is a threat of violence to another citizen, where there is a threat to the safety of our citizens, no-one disagrees with that. But this law, as it stands at the moment, goes much further.
I am surprised that the parties opposite, including the Greens—and some of their predecessors in the WA chapter of their party opposed this particular legislation in 1995 and indeed predicted some of the concerns that history since then has shown were true—now are so vehement in their support for a law that has proven itself to be flawed.
The last time this was debated in this chamber, there was an argument put that changing section 18C—and the changes put forward in this bill—somehow represented the grant of the right to be a bigot. I say to those opposite and those concerned about racism in Australia: look at our history. Our great, overwhelming success in establishing the world’s most successful multicultural country happened, in the main, before this law came onto the statute books in 1995.
We all have stories of family or friends or neighbours or growing up in our multicultural communities. All that success happened before there was a law that has proven itself to be so flawed. All that happened before those opposite took it upon themselves to say that it is up to this parliament to license appropriate and inappropriate speech.
But what I say also is that in this world, where technology has changed so much, the idea that we can license speech is flawed.
I want speech to be free so that it can be repudiated. I want to be able to challenge the person who is racist or sexist. When there are those who would deny historic calamities like the Holocaust, I want to hear that argument so I can outline why they are wrong, why it is offensive and why it needs to be repudiated in the modern world. That is important, as we move away from historical events, even our own past, where not all events in Australian history are moments that we are proud of, but we are a product of them.
Our success as a multicultural country—not being free from sin, not all having a halo—came before laws like this one that has dramatically impacted on the rights of people, albeit of a few, like that group of students from QUT. I am not trying to dismiss the idea that racism can hurt, but why is it that those opposite dismiss the accusation of state-endorsed racism and that what happened to those QUT students does not hurt them? Why is it that the process that they were put through, profoundly unfair as it was—no-one can defend it—where they were accused of being racist when they clearly were not, is somehow dismissed as not worthy of this parliament’s consideration?
I think that shows one-sidedness.
One of the arguments against this change, at its core, has also been that community leaders think that this is a bad law. Well, we are not a nation of tribes. We are not a nation defined by leaders of distinct communities. We are a nation of citizens. We are a nation where every individual opinion, every individual vote, matters; and where people are accountable for what they say and it can be repudiated or they can seek to persuade their fellow citizens.
The fact that self-defined community leaders—or, indeed, those elected by some but not dominating the field, not able to claim the membership of every one of that group—might think this is a bad law is not an argument that means we should not be considering a legal change, when we have demonstrated some of the problems.
That leads to what is one of the most dangerous and, I think, one of the most offensive elements of one of the arguments used against this bill, which is that somehow certain people, because of the colour of their skin, their gender or their background, do not have the right to argue for a change to a law like this. That is the first step towards institutionalising the very racism, or the very sexism, that some of those opposite claim to oppose.
I do not claim to have the experience of suffering direct racism. I cannot claim that experience. But those opposite should not say that, because I have not had that experience, my view is invalid and should be dismissed. That is the core of that argument. It is the cancer of identity politics eating away at Western civilisation, where who you are—a label assigned to you by someone else—is more important than the deeds you undertake or the words you utter.
This law has proven itself to be flawed. We have heard example after example, particularly that of the QUT students. As someone who made a small contribution to their legal fund, on a website, I say that when you have all these groups, many publicly funded—if not directly, then indirectly through access to tax deductibility status —who are able to assist complainants, how can we have a situation where thousands of dollars, let alone tens of thousands of dollars, can be accrued by people addressing a complaint that they may not have known about for a year and for which there is not the standard of evidence we would expect for someone to be subjected to a civil or criminal procedure. The process can be the punishment, and it is inappropriate for the burden and the hurdle to be so low that we can put our fellow citizens through that.—
The other aspect of this law that has posed a problem is that it can ban opinion. I refer here to the Bolt case—not that Mr Bolt has been fan of mine over recent weeks and months, I must add. But free speech matters, regardless of the proponent and regardless of what the opinion expressed may be, because it gives us an opportunity to repudiate it. The Bolt case led to the prohibition of the publication of an article of opinion.
Senator McKim: It is still on their website.
Senator RYAN: It is not on the News Limited website. Well, it was not the last time I looked, because I checked.
That was an article of opinion. Do we want to get to the point where the publication of articles of opinion can be prohibited by a court? I think that is profoundly troubling, because the next step will be that other opinions are banned.
The problem with that is that the opinions banned are not always going to be ones that the proponents of laws like this want to see banned.
Under the last Labor government, there was a proposal to dramatically expand, in effect, the grounds on which free speech could be limited brought forward by the then Attorney-General, Ms Roxon. There was a proposal brought forward by the then minister for communications, Senator Conroy, that proposed—for the first time, I think, outside wartime in this country’s history—the regulation of newspapers, not just broadcast media, the big difference being that the rationale for regulation of broadcast media is the public ownership of the spectrum and the fact that it is limited in quantity. But that has never been applied to newspapers because there is no limit. The idea put forward that there would be a newspaper tsar that could make rulings and compel the production of certain things in newspapers that were imposed by the state puts a great deal more faith in bureaucracy than I think any of us should have when it comes to expressing opinions. At the time, that was fought against very strongly by the then opposition, for the same reason that these laws are being proposed today.
A law that has the effect of taking fellow citizens through a gruelling process in a profoundly unfair way—exposing them to public ridicule; to the opprobrium of being officially accused, with the stamp of a Commonwealth agency, of being racist; and to thousands of dollars of financial disadvantage, all in a process that does not meet the test of natural justice—is no way to treat our fellow citizens. A law that sees the prohibition of the expression of an opinion in a major newspaper, offended though some might be—but this is a country that has historically valued free debate—is a law that is endangering the larger law it is part of.
I am a strong supporter of the Racial Discrimination Act in principle: the Commonwealth should use a law to say all our citizens will be treated equally, regardless of their creed, colour or opinions.
When I do citizenship ceremonies, particularly on Australia Day, I take pride in the fact that this is a country where, when someone takes the oath in good faith, they are as Australian as someone whose family has been here for six generations, like my family, or someone who was born here. There is no test other than a civic commitment to being an Australian.
But a law that allows the perspective of some to restrict the rights of another, particularly when it is so subjective, is a law that puts the Racial Discrimination Act, in my view, at risk of not maintaining the high degree of public support that it has.
The Racial Discrimination Act is an important part of our legal settlement, but this particular aspect of it will cause it damage if it continues to be used increasingly in the way we have seen it used in recent years. I do not think that anyone would like that. I read about proposals to expand the grounds upon which speech can be limited or complaints can be made, through what is effectively a replica of the Court of Star Chamber in a modern sense, although without the power to fine or imprison but with the power to put people through a fairly gruelling legal process. That is going to endanger that important piece of legislation and the degree of public support for it.
There are certain laws where I think that the less contested they are in this place, the better, because they send a signal that they are something that all of the parliament and all the groups they represent across the country support. But we are now at the point where there is a genuine perspective from an increasing number of Australians that the law limiting speech on politically contentious opinions can be used as a weapon by one side of politics against another.
I have long opposed laws against blasphemy. I remember the action taken in, I think, the Supreme Court of Victoria against Andres Serrano’s work of art—which I will not repeat the name of in the chamber because I think it is unparliamentary language. The court upheld that there was no modern law that could be used to suppress the publication of that work of art.
I do not like laws that censor. I do remember, when I was younger, reading and studying politics. It was not always my side of politics that opposed the abolition of censorship laws, but those who did oppose them I think were in the right. Yet now, in areas that are much more politically contentious, in areas where we have confronting debates about issues where at least one side will use identity politics and talk about race or other issues as part of it, if you cannot have that debate freely and frankly, you will lead to a great deal of community conflict, and you will endanger the very strong public support we have for the Racial Discrimination Act. I do not think that is something that as a country we want to do.
These changes are entirely reasonable and entirely appropriate. In years gone past, I would have thought that, apart from the Greens in that corner, they would have been non-contentious for the Labor Party, which once did fight for speech, to remove censorship, and supported due process. Sadly, that does not appear to be the case on changing the words that have been outlined, particularly removing ‘insult’ and ‘offend’ and replacing them with ‘harass’. I think that is an appropriate balance. I would personally probably go further, but I accept that historically I am on the harder edge of free speech. This is not a First Amendment country, as someone who supports these laws once put to me.
But this law strikes a balance that will protect the interests of those who are vulnerable. It will protect the institutions of those who support it so that it can still undertake the work that it needs to, but it will not do so by risking support for those laws by being seen to be ideologically charged or weaponised in a political context.
There are many, many other debates that will become much more difficult in this country if this law is not changed. I hope the Senate sees fit to reflect the hard work by the Parliamentary Joint Committee on Human Rights and the work undertaken by the Attorney-General and others, over many years, to bring these changes forward and strike this balance.