Senator REYNOLDS (Western Australia) (18:34): I too rise to speak in support of this bill. As a member of the Parliamentary Joint Committee on Human Rights, I too participated in the inquiry to freedom of speech in Australia, but, unlike those opposite, I took great heart from the process. I would like to share with this chamber why I did so.

There is no greater democratic value or individual freedom that is more greatly valued or more often cited in the Western world than the right to freedom of speech or freedom of expression. But no freedom is ever truly free in any society, and our society here is no different.

Human rights and our democratic freedoms are universal ones, but the preservation of these rights is not an issue for the left or right of any parliament, because they are truly universal rights. We may disagree on process and what the outcome looks like, but I do not believe any of us have a moral high ground on human rights or the preservation of democratic freedoms. As I said, democratic freedoms are the foundation of all modern democracies and are something that should never be taken for granted, because they are neither self-evident nor self-sustaining. Because of that, here in this place and in the other place we are the guardians of democratic freedoms of all Australians. I believe that there is no more important responsibility charged to any of us on behalf of the Australian people.

Our constitutional founders deliberately did not codify a bill of rights in our Constitution as the American founding fathers had, and that was for very good reasons. When you have a look at the reasons that they did not do it, I am very grateful today that they have given us the opportunity to progress with the times. So, rather than codifying a bill of rights, after extensive discussion and debate, our founders recognised and understood that societal values, norms and opinions change over time, and so too must the standards by which we assess freedoms and also imposition of those freedoms through human rights legislation, and that they too had to evolve with time and current values and standards. Our founders also recognised that once codified in a constitution, they would be difficult, if not impossible, to transform over time. I would ask all in this place to imagine had our founders actually codified the morals and the values and societal norms of 1901, and shackled us with that in this house, how challenging it would be to make sure that our legislation moved with the times.

Listening to those opposite saying, ‘Australians do not raise 18C with me’—of course they do not. They are not going to talk about specific aspects of complex legislation. But if you ask them a different question, if you ask any Australian, ‘Do you value your freedom and your right to speak, your freedom of speech’, there would be few, if any, Australians who would not identify that as an important issue. Our founders, because of that, had great faith that the Australian people, through their elected representatives—through us—would ensure that laws and judgements represented the community standards of the day. It is an incredibly difficult and challenging balancing act in all democracies, and Australia is no different, but it is something that must be constantly challenged and tested on behalf of Australian society, a process that starts and ends with us in this place.

It is the role of parliamentarians in a responsible parliament to balance human rights with our democratic freedoms, and this bill achieves that balance. The bill amends the Racial Discrimination Act to redefine conduct prohibited by section 18C to ensure that the defined conduct more accurately encompasses the notion of racial vilification. I strongly support the removal of the words ‘offend’, ‘insult’ and ‘humiliate’ from section 18C, not because I am a bigot but because I truly believe that the word ‘harass’ and the legal definition around that more accurately represents what we are trying to prevent—that is, racial harassment and vilification. We are strengthening this act. We are preserving freedom of speech, but we are also ensuring that this legislation meets contemporary Australian standards, which, again, is something that our founders charged us in this place with. One of the ways it is achieving a better balance of community standards is by introducing the ‘reasonable member of the Australian community’ as the objective standard by which contravention of section 18C should be judged, rather than by the standard of a hypothetical representative member of a particular group. This is a critically important change to this legislation, which, again, preserves a good balance.

Almost three years ago I spoke in this place about my concerns about the restrictions on freedom of speech and how section 18C in particular has been abused. In its current form, I do not believe section 18C today strikes the right balance between people exercising their right to free speech and the prevention of racial discriminations. The human rights legislation we implement in this parliament is designed to protect the rights of Australians, but what we do not often talk about in this place is that when we implement legislation to protect somebody’s rights—in this case their human rights—by that very act we are also further restricting someone else’s freedom of expression and freedom of speech. That is a really important point that gets lost in the politicisation of this point—that is, when you introduce legislation that does impose rights for certain members of our community, quite rightly it does also restrict freedoms, and in this case freedoms of expression, of some Australians. That is something we need to talk about more often in this place to make sure that, politics aside, we have got the balance right and that it reflects community standards.

As a member of this committee, I was very proud of the way that the inquiry happened. I would particularly like to congratulate my colleague Mr Ian Goodenough for his chairmanship of this quite challenging inquiry. The committee received 11,000 submissions. We held nine public hearings right across this country. We heard a wide range of quite diverse input from people—different aspects of the same issue from their own personal perspectives. What really pleased me was that this discussion was robust. Quite often it was very emotional and it was very harrowing sometimes to listen to some of this evidence. But, most importantly, it was done with great respect. That gives me heart and that makes me proud to have participated in this process, because to me this inquiry demonstrates that as hard as it can be sometimes to discuss challenging issues in Australia today it can be achieved. Considerable weeks of work were put into getting the draft of this report right and to doing justice to everybody who appeared and the range and diversity of opinions. So whatever happens with this bill, I take great heart that we have not completely lost the ability in this chamber and in this place to have the debates that Australians should rightly expect us to have in this place. I passionately believe that our society is absolutely improved by a diversity of ideas, robustly contested and debated. I believe also that in this way the bad ideas that come forward, that the majority of society think are bad ideas, wither away and they die while the good ones gain traction so that changing societal norms and community standards are reflected in the legislation that we debate in this place and that we ultimately pass.

The treatment of the late Bill Leak, a respected cartoonist and satirist, demonstrated to me that we still have serious constraints on freedom of speech in Australia and that we are not actually ‘je suis Charlie’ as many of those tried to claim here in Australia. We have heard the criticisms of those who, I believe, deliberately misunderstood or misrepresented some of the arguments. Some of those arguments include, ‘There’s been no-one successfully but unfairly prosecuted under section 18C’. This conveniently ignores that those who have been pursued relentlessly and for years under 18C and have been subject to years and years and years of legal action, who have been financially crippled and also had the financial stress that it incurs. Clearly we saw that through the evidence given—not just through various representatives of ethnic groups and religious groups that had experienced racial vilification, but from those who had been unfairly put through this process. Sadly, under this process truth is no defence. Bill Leak found that out. It is also interesting to note people in here talk about cartoonists. Bill Leak was not the first cartoonist who was caught in this web of 18C. Those opposite often say, ‘Well, 18D is a get-out-of-jail-free card’. But 18D is not a get-out-of-jail-free card. I will explain why.

You might remember the Bropho case in Western Australia, where a cartoonist was caught up for seven years under this current legislation. In that case, truth was no defence under 18D, and he was taken through the courts for seven years. Hundreds of thousands of dollars later, it had taken an enormous toll on Dean Alston’s life. Truth was no defence and he got caught up in this web. Again, this is a web that others have been caught up in since. Others might try to downplay it and say: ‘Well, it doesn’t really matter. It is only a few cases.’ But, let me tell you, if it was any of you or any of your family members who were caught up in this web, in how this has been applied, you would be the first ones here saying how bad this system was. One person treated unjustly under this process is one too many.

In terms of that, I would like to share with you some of the evidence we received from Mr Alexander Woods, one of the QUT complainants. He said:

I feel I should explain the simplistic incident and add to it my personal experience. I was 19 and in my second year of uni. I was with two of my engineering mates and we were trying to find a computer so that we could do our uni work. … There was a computer lab that looked like any other. We sat down and about five minutes later a lady came towards us and asked us if we were Indigenous. We said, ‘No, we are not,’ and she quite brusquely asked us to leave, because they were reserved for Indigenous students, and that we had to go. We promptly left and about 45 minutes later I found another computer where I posted on a Facebook page to a couple of thousand other QUT students. I said:

Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation.

I did not follow the post too closely after that, but what ensued was quite a political debate both for and against the merits of the facility. It was not until the next day, when I got a letter from a staff member at QUT, that I was told to take down the post. I promptly jumped on Facebook to take it down but it was already deleted. I sort of put the incident to the back of my mind until about two years later, when I was in my last semester of uni and I was faithfully reading my emails one Friday afternoon. I had an email from the HR department at uni detailing a case that had been with the [AHRC] for over 14 months, with a conciliation scheduled for the Monday, which was just one business day after. I was quite confused because at no point had anyone from the commission ever got in contact with me personally, and, to the best of my knowledge, ever tried. I spoke to the university’s lawyers, who told me that conciliation was optional and the uni has been dealing with it for quite some time. I did not appreciate the full gravity of the situation at the time, and I was not legally represented. Around two months later, I was served with a notice to appear at the Federal Circuit Court of Australia, as I was personally being sued for over $250,000. At the same time, I was offered a confidential settlement of $5,000. I was extremely disappointed with my university and the commission, who I felt have effectively hung me out to dry.

Those opposite may brush away this injustice, but one injustice like this is too many, and this represents the stories of many others.

I believe the words ‘insult’, ‘offend’ and ‘humiliate’ are synonyms, and they are deeply subjective. They protect against hurt feelings, and they lack clarity, and that was never the intent. When you go back and have a look at the released cabinet papers, and at comments by Michael Lavarch, the Labor Party Attorney-General, you will see that how they are being applied today was never the intention of the government when they introduced this legislation. I agree that the word ‘harass’ captures the conduct intended and is more consistent with the original intent—and it is still the intent of government today within the act. The word ‘harass’ is a term deeply understood legally. It is much simpler to determine whether or not someone has been ‘harassed’, rather than ‘offended’ or ‘insulted’. It is far less subjective. For an act to be unlawful under section 18C:

… a reasonable member of the Australian community must be of the view that the act must be reasonably likely, in all the circumstances, to harass or intimidate a person or a group of people on the basis of their race, colour or national or ethnic origin.

That, despite all of the hyperbole and venom from those opposite, is not racist. We are not racist. We are not condoning hate speech. We just have a different point of view on how it should be addressed in our society. I believe that, by providing the clarity that is in this bill, the law will be stronger. There will also be a better balance with protecting Australia’s freedom of speech. While we might not get to that point of genuinely—as in France, ‘Je suis Charlie’—having true freedom of expression, and political expression in particular, I think it does go some way to redressing the balance. This bill will also extend protections against racial vilification. I believe the case for reform is simple and clear. It is simply the right thing for those in this chamber to do.

As I have said, these amendments will strengthen the legislation. After going through this inquiry, I believe that simply doing the process reforms and changes is not enough—as necessary as they are; they will improve the process and they will make it fairer for defendants and respondents and will also simplify the process and make it more transparent. But, without the changes to 18C in particular, it will still leave too many people who do push the boundaries of freedom of speech, such as cartoonists, vulnerable. It has been clearly shown in many cases that 18D as it is is not sufficient; people can still be dragged through the courts, because truth, in the current legislation, is no defence.

The intention of the Racial Discrimination Act under these amendments will not change. As I have said, it is still designed to protect the very people it was introduced to protect, albeit with greater clarity and without overly burdensome restrictions on people’s freedom of expression. This bill restores the balance, I believe, more appropriately, between people’s freedom of expression and of political communications and the legislation we introduced and we oversee to make sure that the rights of particular individuals in our society are protected as far as possible.

I have been left with the impression from the comments of those opposite that they disagree with us because they fundamentally do not trust the Australian people enough to have confidence in Australians’ ability to have robust but respectful discussions about issues that are critically important to our nation, to them, to their families and to our future. Again, we have heard some of those speeches today from those opposite; they are not only hinting but I think actually, in effect, saying that they do not trust Australians to have these respectful discussions on issues that are so important to them.

But I have far more faith in the Australian people. I do believe in their ability to have robust and respectful debates. Yes, there will always be people who take discussions on either side to extremes. But I think what this inquiry has shown us all is that it is possible, even amongst those of us in this chamber who have such diverse points of view, to still come together and have these debates, and if, in this chamber, we can come together and have these debates civilly and robustly and come up with a very comprehensive report that does justice to the input from all Australians who have submitted, I think that demonstrates, more than anything else, that we need to have a lot more faith in the Australian people that we can have these debates, on same-sex marriage, on freedom of speech and on other contentious issues, and not have to nanny-state them and say, ‘We can’t have these discussions because it will incite hatred.’ I just do not believe that, because the majority of ordinary, sensible Australians will always triumph, I believe.

So I urge all of you in this place to have the same faith in the Australian public as I do, because, if we do not preserve the balance between our democratic freedoms and the rights that we implement, who will? (Time expired)