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Janet stands up for Australia's anti-discrimination laws

Janet Rice 18 Apr 2017

This debate [on weakening Australia's anti-discrimination laws] is not happening in a vacuum. It is not something confined to the chambers of this parliament, inside the Beltway and Parliament House. It is happening in an environment in Australia where racist hate-speak is on the rise, and where people of colour, of diverse multicultural backgrounds cannot walk down the street without feeling threatened. It is happening in an environment where there has been an increase in people being insulted, humiliated, offended, harassed and intimidated—all of those things.

I want to share with you a meeting that I had last Sunday. It was with a Muslim women's group who were having a morning tea to bring their community together. The name of their event and their theme for the morning was 'Working towards unity in today's hostile political climate', because they recognise what has changed for them as Muslim Australians over the last couple of years. They told me some horrific stories. They mostly wanted to celebrate their diversity. They mostly wanted to come together and focus on the positives, and a positive way forward. But it was inevitable that they shared what had been happening to them, their experiences—being yelled at on the streets, or abused on public transport, just for being identifiably Muslim; women wearing hijabs being told, 'Go back to where you came from,' and being vilified just because of who they are. They told me of a woman wearing a niqab, which is the face covering that shows only the eyes, driving a car with the window wound down, and having a cup of hot coffee thrown at her, scalding her face. They told me of another woman, also a niqabi, walking down the street with her two-year-old in a pram and having the pram kicked over. They told me of their young children coming home and saying, 'Why do people always say bad things about Muslims? Why can't they say good things about us? We are good people, aren't we?' And they are good people.

This is the climate in which this debate is occurring, and any weakening of our Racial Discrimination Act is going to give the green light—it is already giving the green light—to the unleashing of more racism. This weakening that is going on has consequences, and there is no doubt that replacing 'offend', 'insult' and 'humiliate' in the Racial Discrimination Act with 'harassing or intimidating' is giving people licence to say more.

Even if the legislation, once it finally goes to court hearings, does not change the situation on the street, it is giving people that sense, 'We can now be more racist than we felt we could be before.' It is encouraging those racist attitudes. It is encouraging that sense of difference. It is encouraging people to feel that difference and to feel that it is okay to offend people. The argument being put by the government is that not being able to 'offend', 'insult' or 'humiliate' is an attack on free speech. Simply put, it is not.

The argument that is being put up that this is an attack on free speech—that people should be able to offend and insult and humiliate and just not be able to harass or intimidate—is a complete straw man. I think almost everybody in this chamber would have agreed with the arguments put by Senator Fawcett before in defence of free speech, but free speech is not under attack with the current wording of the Racial Discrimination Act. Senator Leyonhjelm said that what he said would have violated section 18C, and he was going to go outside and say it and see whether it would have got through.

Firstly, under the existing provisions of 18C, it is not just somebody taking offence that would enable a successful case. Justice Kiefel, who is now the Chief Justice of the High Court, in the Cairns Post case said that in order to be successful those words had to have 'profound and serious effects, not to be likened to mere slights'. So it is not just, 'Oh, I'm offended,' and therefore people cannot say that, because they are going to be prosecuted in a court case. No, it has to be something that is causing 'profound and serious effects, not to be likened to mere slights'.

The other thing that we never hear from the government is the provisions of section 18D. Sections 18C and 18D operate together. So, for example, everything that Senator Leyonhjelm said in his contribution earlier on absolutely would have been covered by the provisions of 18D. I want to read out the provisions of 18D in their entirety because I think people need to be reminded that we have 18C that says we are not allowed to 'offend', 'insult' or 'humiliate', but 18D says:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest—

Senator Leyonhjelm—


(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Clearly, 18D covers off any reasonable expression. It is not just a case of offending somebody and then being hauled up before the courts.

The case that is being used as a cause celebre is that of Bill Leak. It is absolutely clear that the 18D defence would have cleared Bill Leak of any prosecution. It was 'the performance, exhibition or distribution of an artistic work', first of all. It was making a fair comment in a matter of public interest. Section 18D, a hundred times over, would have let Bill Leak off. It would not have been a case that would have held up. In fact, we have been told that Gillian Triggs, of the Human Rights Commission, has said that they wanted an 18D defence to be put forward as a defence because that would have meant, very clearly, that the whole case would have been able to be very quickly dismissed.

Finally, in having this debate tonight, I really urge the government and I really urge the crossbench to be thinking about the impacts that this debate is having on people who are just trying to live their lives in a dignified way, free of harassment. I ask people to be listening to the voices of multicultural Australia, listening to the Aboriginal and Torres Strait Islander people and listening to the peak bodies representing our diverse Australian community. As a parliament we do not need to capitulate to the far right of the government backbench. We have a Prime Minister who has capitulated to his far right, but we as a parliament do not need to do that.

We need to be listening to our diverse society. We need to be hearing what they are saying, hearing about the racist attacks that are on the rise in Australia. We need to be doing everything we can to put them to bed and to say that we want to celebrate multicultural Australia. We want to be reducing racism. We want people to be able to live their lives free of insults, offence, humiliation and harassment, to be able to get on with their lives, to feel valued and to feel at one as part of the Australian community. These proposed changes to the Racial Discrimination Act are the exact opposite of what we need to be doing. We need to be encouraging our diversity, not attacking it.

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