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Thursday, 16 February 2017
Page: 1106


Senator BURSTON (New South Wales) (09:43): We in Pauline Hanson's One Nation Party regard freedom of speech as a fundamental human right, even though there is no formal recognition of the right in our legal system. Last week at a rally for medical cannabis on the lawn in front of Parliament House, Senator Hanson was described as Australia's favourite racist. Of course, anyone who knows Senator Hanson knows she is not racist. It is offensive to call someone a racist, especially if it is not true. But the right to free speech is more important, in my opinion, than any personal offence that might be taken by describing someone as a racist. Senator Hanson may object to a person describing her as a racist, but she will never deny the person the right to say what they think.

Although I support the right to freedom of speech, I am conscious of the fact that such a right is not formally recognised in law. The most Australians can say about protecting freedom of speech is that the High Court has ruled that we have the right to freedom of speech in government and political communication. In other words, ridiculing politicians and speaking contemptuously of them is acceptable in a political context, but the use of offensive words is not otherwise protected in Australian law. There is no free speech act, for example, and the only individual rights protected by Australia's Constitution are the right to freedom of religion and the right to a trial by jury for certain criminal offences under Commonwealth law.

The original draft of Australia's Constitution prepared by Tasmania's Attorney-General Inglis Clark included about a dozen individual rights taken from the United States Bill of Rights, including the right to freedom of speech. Only two rights survived the constitutional convention of 1898 in Melbourne—the right to freedom of religion; and the right to a trial by jury for certain criminal offences, as I mentioned. The problem with trying to assert rights such as freedom of speech in 1898 was that our founding fathers wanted to be free to discriminate against Aboriginal people, and the Chinese working in the goldfields. Now, that was racist. We have no fundamental right to free speech in our legal system because of the discrimination practised by our ancestors.

I suggested earlier in this speech that the Labor Party made a very poor attempt at fixing this deficiency in the legal system in 1985, when the Hawke government passed the Australian Bill of Rights Bill in the House of Representatives, along with the Australian Human Rights Commission Bill. They were companion bills, and the plan was that the Human Rights Commission would be the enforcement mechanism for Australia's bill of rights. The Bill of Rights Bill stalled in the Senate when the Western Australian Premier, Brian Burke, told Prime Minister Hawke that there would be no money for the Labor Party from the west if the Bill of Rights Bill became law. In 1986, the Human Rights Commission Bill became law, but the commission was always a shadow of its former self once the Labor Party killed off the bill of rights, contrary to Labor policy. This bill will facilitate early assessment of unmeritorious complaints to the Human Rights Commission.

Just as Labor did in 1986 when it frustrated the right to freedom of speech in Australia's stillborn bill of rights, Labor is still trying to suppress freedom of speech in Australia. Labor say they support individual rights and freedoms, but they deny the right to freedom of speech every chance they get. Labor and the Greens say we need to be protected from tyrannical governments, but that can be done only with a bill of rights which is a line in the sand between people on one side and the executive, the legislature and the judiciary on the other. A bill of rights is about the rights of people to take a stand against government. Whenever I am reminded that Australia is the only common-law country in the world that does not have a bill of rights, I am also reminded that the Australian Labor Party pass up every chance they get to promote human rights, including the right to freedom of speech, which is fundamental to the bill before the Senate.

Some people say that we already have a bill of rights in Australia. They are referring to the English Bill of Rights of 1689, which sets out certain rights of individuals, and parliamentary rights including the right to free speech in parliament. The English Bill of Rights still applies in the realms, including Australia, to the extent that it has not been overridden by inconsistent later law. I believe the only provision of the English Bill of Rights which still applies in Australia is article 9, which guarantees free speech in parliament. So politicians enjoy the right to free speech in the form of parliamentary privilege, but the same privilege is not extended to ordinary citizens who need to be very careful what they say in case they fall foul of the Human Rights Commission.

I must say I was unaware of the dangers of falling foul of the Human Rights Commission and the race laws until the case of Eatock v Bolt in the Federal Court, a case in which two articles written by Mr Bolt were found to contravene the racial vilification provisions of the Racial Discrimination Act. The court said the articles were reasonably likely to offend, insult, humiliate or intimidate the plaintiffs. What is not so well known about the case is that the plaintiffs had a perfectly good cause of action in defamation against Mr Bolt, but they chose instead to sue under the race laws in order to send a so-called message to the community. The community responded by saying that, if freedom of speech is so fragile in Australia as to be put aside to accommodate personal feelings of identity and self-worth, then we should think about changing the law.

Currently the Joint Parliamentary Committee on Human Rights is looking at the race laws, as well as the way the Australian Human Rights Commission deals with complaints about discrimination and allegations of human rights violations. A number of high-profile cases since Eatock v Bolt have focused public attention on the race laws, including the failed case against cartoonist Bill Leak and the failed case against three students at Queensland University of Technology. At a hearing before the parliamentary committee in Brisbane last week, Tony Morris QC, the lawyer acting for the three university students, said that his clients had to pay unjust compensation and legal fees to avoid a process biased against them. One student is trying to raise $41,000—yes, $41,000—to pay legal bills.

The number of submissions to the parliamentary inquiry expressing concern about unmeritorious complaints to the Human Rights Commission was a surprise to me. Eminent jurists suggesting early intervention to terminate complaints without merit include Justice Ronald Sackville AO, QC; and Professor Anne Twomey, of the University of Sydney. In Professor Twomey's submission to the inquiry, she said:

It is not clear why the Commission should proceed to conciliate complaints of acts which the President is satisfied are not unlawful. Hence, it may be better to oblige the President to terminate the complaint once he or she reaches that state of satisfaction. Further, it might be of assistance to require the President, upon first receiving a complaint, to make an assessment as to whether the alleged act would, prima facie, appear to be unlawful, before proceeding to engage in the conciliation process.

A former Australian Human Rights Commissioner, Dr Sev Ozdowski OAM, informed the committee that the complaints process at the Human Rights Commission is biased in favour of the complainant. The former commissioner spoke about people at the commission enforcing their vision of the world. The combined effect of running unmeritorious complaints and promoting agendas brings the law into disrepute and damages the good work the commission otherwise undertakes. People who are the subject of serious discrimination are entitled to the protections of the law. The suffering caused by serious discrimination is abhorrent, and I would not like to see the law diminished for utilitarian purposes or sectional interests.

The Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017 has no impact on legitimate complaints to the commission and does not in any way diminish important protections for people who suffer serious discrimination. In fact, the bill has the opposite effect in that it extends the protections of the law to innocent respondents who currently are at risk of being dragged before the commission to answer spurious allegations and malicious attempts at character assassination. The defamation law in Australia is uniform and well settled and there is simply no need to run a case against a person in the Human Rights Commission that would not get past first base in the defamation courts for reasons of triviality, lack of evidence or the absence of good faith. Damage caused to a person by an unjust claim of discrimination cannot be justified in any circumstances. I commend the bill to the Senate.