Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

My question is to the Attorney-General, Senator Brandis. Attorney, you said yesterday that people have a right to be bigots. Today you have unveiled changes to the Racial Discrimination Act which enshrine that right in law. Racial abuse and hate speech are not criminal offences under the current act and are generally dealt with via mediation. If someone is called a 'chink', a 'boong' or a 'wog', they can, under the current law, rightly seek mediation and an apology from the aggressor. Minister, why is this government so keen to take away this basic right and give people free rein to abuse others at will?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I should correct what seems to be a misconception on Senator Di Natale's part. The exposure draft that I released this morning does not propose any changes at all to the machinery provisions of the Racial Discrimination Act—or of the Human Rights Act, for that matter. What the exposure draft does is honour an election promise the government made to repeal section 18C in its current form and replace it with provisions which are (a) more respectful of freedom of speech, including the freedom of speech of unreasonable and intolerant people like you, Senator Di Natale, and (b)—

Opposition Senators:

Opposition senators interjecting—

John Hogg (President) Share this | Link to this | Hansard source

Order! Senator Di Natale is entitled to hear the answer.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Through you, Mr President, I say to Senator Di Natale that there are many on my side of politics who find his views intolerant and preposterous. But we would not for a moment suggest that he should not be at liberty to express them. The second thing we intend to do, Senator Di Natale, is to introduce into Commonwealth law, for the very first time ever, a prohibition on racial vilification. The mechanism that was adopted in 1995 by a previous Labor government to deal with the problem was, through section 18C, the political censorship method. That is never the way to deal with a social problem—to ban people from expressing their views. The way to deal with a social problem is to ensure that we have, as in this case, appropriately framed legislation which is respectful of freedom of speech but targets the very problem at issue.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

Mr President, I ask a supplementary question. Minister, the government's proposed changes to the act exclude any commentary in any form that is part of 'a public discussion'. Nazi race theories would be exempt as a public discussion on eugenics. An attack on Asian Australians could be protected as a discussion on immigration policy. Racist speech against Aboriginal Australians could be shielded as a discussion on constitutional recognition. Are these unintended consequences and what good is a law that allows these sorts of hate speech?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Again, Senator Di Natale, you seem to have misunderstood the legislation entirely. The exposure draft I have circulated for community feedback is clear that there is a specific prohibition on an act 'reasonably likely to vilify another person or a group of persons'. That is new to Australian law. 'Vilify' is defined to mean 'incite hatred against a person or a group of persons'. If those are the sorts of issues you are concerned about, I wonder why it is that you are so critical of a government which, for the first time, proposes to bring a bill to this parliament to outlaw racial vilification.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

Mr President, I ask a further supplementary question. Minister, you are clearly concerned about the chilling effect of anti-hate-speech laws, despite citing no real evidence that the fear of a court-ordered apology is stifling legitimate public debate. Why then should not artists have the same freedom of expression to dissociate themselves, without the threat of the loss of their funding, from a cause that might go against their own values?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

As a matter of fact, Senator Di Natale, artistic freedom is explicitly protected by subsection (4) of the exposure draft. But I take it that your intended reference is to the Sydney Biennale. I might remind you that nine artists threatened to destroy the Sydney Biennale. Nine artists threatened to destroy this great Australian art event—and they were stopped. If an artist decides that they do not want to be associated with a particular event because of its association in turn with a particular commercial sponsor, that is entirely a matter for them. There is no law stopping them from choosing not to be associated with a particular event. But I am sorry to hear you using artistic freedom as a pretext to condone artists seeking to destroy a great arts event.

Anne Ruston (SA, Liberal Party) Share this | Link to this | Hansard source

My question is also to the Attorney-General, Senator Brandis. Further to the responses he has just given to Senator Di Natale, I was wondering if the Attorney-General could give the Senate a more detailed explanation of the government's plans to amend the Commonwealth Racial Discrimination Act?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Thank you very much indeed, Senator Ruston, for your question. I know this is an issue that means a lot to you.

The exposure draft, which was released this morning, seeks to address two of the problems with the existing section 18C. The first problem is that, as I said a moment ago to our colleague Senator Di Natale, section 18C in its current form tries to attack racism through political censorship. Political censorship is never the right way to attack a social problem. Political censorship is certainly not the right way to attack racism. So the proposed replacement section for 18C ensures that freedom of speech, freedom of public discussion, is protected. Secondly, the proposed new section, as I said to Senator Di Natale, for the very first time in Commonwealth law creates a prohibition on racial vilification.

It does frustrate me, if I may say so, that so much of the discussion in recent months about section 18C of the Racial Discrimination Act—it was implicit in the false premise of Senator Peris's question yesterday—has been on the basis—

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

And that went well, didn't it?

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Let's remember who defended the bigots!

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I defended people like you, Senator Wong: the intolerant.

John Hogg (President) Share this | Link to this | Hansard source

Senator Brandis, you are not to debate the issue. Address yourself through the chair.

Senator Conroy interjecting—

Senator Wong interjecting—

Order! Senators Wong and Conroy!

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The discussion proceeded on the false assumption that Australian law—at least the law of this parliament—did make provision for racial vilification and hate speech. In fact it did not. And even the shadow Attorney-General, who should have known better, has serially fallen into that trap. For the first time now, if these amendments are enacted, racial vilification will be specifically prohibited under Commonwealth law.

Anne Ruston (SA, Liberal Party) Share this | Link to this | Hansard source

Mr President, I ask a supplementary question. Could the Attorney-General please explain, further to his previous response about the greater protection against racism, exactly how the proposed changes are going to improve and strengthen protection against racism?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

As I have started to explain, they will do so by introducing a prohibition on racial vilification under Commonwealth law, and that term will be defined as 'the incitement of racial hatred'. The Commonwealth law has had a gap; the Racial Discrimination Act has had a gap in lacking such a prohibition hitherto. I wonder why all of those on the Labor side and the Greens side of politics has spent all this time accusing this government of proposing to weaken the provisions of the Racial Discrimination Act when in fact, when it comes to the core question—that is, introducing a provision to deal with racial vilification and the incitement of racial hatred—we have completed the act by inserting provisions that did not exist before.

Anne Ruston (SA, Liberal Party) Share this | Link to this | Hansard source

Mr President, I ask a further supplementary question. In the exposure draft there is reference to whether an act is reasonable or not. Can the Attorney-General please explain what test should be applied when determining whether an act is reasonable?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Yes, I can. The test should be the test of ordinary community standards. One of the ways the old section 18C was demonstrated to be unsatisfactory was in the case of Eatock v Bolt, in which the judge interpreted section 18D—which by the way will also be repealed under our reforms—as imposing a test not of community standards but of the standard of a member of the alleged target or the alleged victim group. In that way, section 18D of the old Racial Discrimination Act transformed an objective community standard to, as it were, a semi-subjective standard to be judged by a small and narrow group in the Australian community. We intend to restore the test of the ordinary, reasonable Australian—the community standard test.