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Thursday, 30 March 2017
Page: 2876

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Senator McKIM (Tasmania) (21:35): That is the lamest strawman argument I have heard since I was elected into this place, which is a fair while ago, and that is really saying something. What a load of absolute tosh we are listening to from the Attorney-General this evening. He reads from the Australian Law Reform Commission report a lengthy passage which does not call in any way for section 18C of the Racial Discrimination Act to be changed. Not one word of the passage the Attorney read out is a call for change or an opinion that it ought to be changed.

He quotes Professor Triggs quite accurately, saying she wanted to review 18C and strengthen it, which is emphatically not what this government is proposing to do with the amendments that are currently before the chamber. He is quoting Professor Triggs accurately, but in fact he is not benefiting his argument in any way whatsoever by doing so. I have formed the view that if we are going to have a filibuster from the government, which is clearly what is going on in here, then I have a few things I would like to place on the record.

I want to start by talking about the interactions between lawyers representing The Australian and the late Bill Leak and the Human Rights Commission, during the Human Rights Commission's good-faith attempt to settle that matter expeditiously, which was met at every turn by the legal representatives of The Australian and Mr Leak with obfuscation, delay and aggression.

Clearly what was going on here was that key figures at The Australian—and I presume with the acquiescence of Mr Leak—made a decision very early on that they were going to use the complaint that somebody else had submitted to the Human Rights Commission as a weapon not only in their ongoing campaign against section 18C of the Racial Discrimination Act but in the ongoing vendetta that was being conducted by The Australian and Mr Leak against the Human Rights Commission and specifically against Professor Gillian Triggs. It is not in any way inaccurate to suggest that the Human Rights Commission effectively begged The Australian and Mr Leak to submit a section 18D defence. Senator Paterson can smirk all he likes, but the facts are the facts.

Senator Brandis: Senator Paterson is a lot smarter than you.

Senator McKIM: The Attorney can loll around superciliously in his chair all he likes, but the facts are the facts and they are on the record in black and white. They are loud and clear. The facts are that the commission twice wrote to the legal representatives of The Australian and Mr Leak and twice asked for a submission to the Human Rights Commission from the legal representatives of The Australian and Mr Leak and on behalf of The Australian and Mr Leak in regards to a section 18D defence.

In fact, when there was reference to section 18D in a communication from the lawyers of The Australian to the Human Rights Commission, the commission wrote to the legal representatives of The Australian and Mr Leak and asked whether that could be taken to be a submission in regards to section 18D. The legal representatives of The Australian and Mr Leak wrote back to the commission:

… we have made no such “statements”.

It goes on to say:

You ask us to—

and this is in quotes because it quotes the previous communication from the commission—

“provide a written submission from Mr Leak covering [a number of specified] points and any other points he would like to make, so that they can be considered by the Commission as part of [your] inquiry into this matter”. We confirm that Mr Leak does not intend to make any submission to your inquiry, whether in writing or otherwise.

There it is in black and white. Despite being asked twice to make a submission on section 18D, the legal representatives of Mr Leak and The Australian refused to do so.

You have to ask yourself: why did they refuse to do so? The answer is blindingly obvious. They wanted to run a vendetta against the Human Rights Commission, because of course they had already submitted to the commission that in their view—a spurious view though it was—the Human Rights Commission ought not hear the complaint against Mr Leak and it should be heard by an independent person. That was the view expressed by the legal representatives of The Australian and Mr Leak. That had no merit and the commission quite rightly, in a very lengthy and considered response, said that they had considered that submission and determined that in fact they were the appropriate body to hear it and the accusation of apprehended bias that was made was a complete load of rubbish. Just to be clear, that last phrase is me paraphrasing the commission. Those are not the words the commission used.

But make no mistake there was a vendetta being run. There was a murky, nasty, aggressive campaign being run by The Australian and Mr Leak against the Human Rights Commission and Professor Gillian Triggs. It should be named up, and I am naming it up here tonight. They got overtaken in that vendetta by their desire to continue their campaign and that is why they refused to make a section 18D submission. Professor Triggs has been very clear—and I will paraphrase her here—in saying that, if Mr Leak had made a section 18D submission, it is very likely that the commission would have acted to immediately terminate that matter. Of course it is blindingly obvious that Mr Leak and The Australian had a section 18D defence in regards to the cartoon that was the subject of the complaint. It is blindingly obvious that Mr Leak—

Senator Brandis interjecting

Senator McKIM: You will get your chance in a minute, Attorney. I have got a lot more to say yet, mate. I have another seven minutes, so you sit quietly there, Attorney. You will get your chance in a minute. It was blindingly obvious to any independent and reasonable person watching what was going on that The Australian and Mr Leak were more interested in running their vendetta against the commission and Professor Triggs than they were in settling that matter, and that means that all of the arguments that we have heard about how terrible a trauma this whole thing was for people at The Australian and Mr Leak are premised on marshmallows, because they could have submitted on section 18D at any time and the overwhelming likelihood would have been that the commission would have acted to dismiss the case.

But they did not, because remember they were using the complaint that was not made by the commission; it was made by another person. The commission had statutory responsibilities to conduct an inquiry in regards to that complaint, and they did that and they did that properly. At all times they encouraged The Australian, Mr Leak and the legal representatives of The Australian and Mr Leak to submit a section 18D defence to the commission but they would not do it because they were more interested in having a fight than they were in settling the matter.

So it is gross hypocrisy for Senator Brandis, Senator Paterson and all the other agents of the» «IPA» in this place to come in here and use this case as any kind of an argument against 18C—for a start. It is also rampant hypocrisy for Senator Brandis, Senator Paterson and any of the other agents of «the» «IPA in this place to come in here and use the Leak case as an argument for reform of the commission's processes. I agree that there are actually other cases that do at least constitute an argument for reform of the commission's processes. But not the Leak case—that is a spurious argument because it is blindingly obvious that neither The Australian nor Mr Leak had any interest whatsoever in settling that matter. They were spoiling for a fight. The whole raison d'etre of The Australian in recent times has been to run a vicious, vindictive, appalling campaign against the Human Rights Commission, against Professor Triggs and against section 18C of the RDA. Make no mistake, that was their motivation here. They did not want to settle this matter, they wanted to prolong it because they thought it suited the vendetta and the campaign they were running.

The TEMPORARY CHAIR ( Senator Sterle ): Senator McKim, could you resume your seat. Senator Bernardi on a point of order.

Senator Bernardi: I am just going to draw a point of order on relevance. This is completely irrelevant to the amendment that we are discussing.

The TEMPORARY CHAIR: There is no point of order.

Senator McKIM: We have heard ad nauseam the arguments from Senator Brandis, Senator Macdonald, Senator Paterson—at nauseating length—and Senator Abetz. They are all seeking to use the Leak case as an argument for reform of 18C, as an argument for reform of the processes of the Human Rights Commission. Those arguments are spurious. They are not based on a reasonable observation of the facts of the matter regarding the Leak case. The commission was falling over itself to seek a submission from Mr Leak, from The Australian—or from the legal representatives of Mr Leak and The Australian—in regard to 18D. There was a clear, unambiguous defence under 18D—

Senator Bernardi interjecting

Senator McKIM: It had everything to do with 18D.

Senator Bernardi interjecting

Senator McKIM: I will take that interjection even though I did not hear it—it was a bit of a mumble—

Senator Bernardi interjecting

Senator McKIM: You can just mumble away like Bill the Steam Shovel over there all you like. It does not worry me, because what I am doing is reading the facts into the Hansard so that anyone who is listening to this debate, anyone who might read the Hansard in the future, knows the facts. And the facts of the matter are that the legal representatives of Mr Leak and The Australian steadfastly refused to make an 18D submission to the Human Rights Commission. The president of the commission, Professor Triggs, has given evidence to the Legal and Constitutional Affairs Committee that, had such a submission been made, it was highly likely that the commission would have moved immediately to dismiss the matter. Make no mistake, Mr Leak had an unambiguous defence under section 18D; he just chose not to exercise it—and neither did the Australian.