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Wednesday, 30 May 1984
Page: 2140


Senator DURACK —I draw the attention of the Attorney-General to comments by the Deputy Chairman of the Human Rights Commission, Mr Peter Bailey, on the recommendations of the Commission for action to be taken against public comment which might be construed as inciting racial tension, which have been the subject of a report about which the Attorney-General is no doubt aware. What stage has the Attorney reached in his consideration of the Commission's recommendations? Does the Attorney agree with Mr Bailey that if the Commission's proposals were adopted, remarks such as those by Mr Hugh Morgan of the Western Mining Corporation Ltd on Aboriginal land rights could have been covered by such a law, but that the views expressed by Professor Geoffrey Blainey on immigration would not? Is the Attorney concerned that any movement in the direction advocated by the Commission in respect of such a law would have the effect of restricting debate on what may well be sensitive issues but are matters which, nonetheless, should be freely discussed in a free society?


Senator GARETH EVANS —I have said on numerous occasions that I am acutely aware of how sensitive is the balance of competing interests here involved between, on the one hand, a need to maintain traditional principles of free speech in their fullest possible extent and, on the other hand, arguably the need to curb some of the grosser manifestations of racist propaganda which have been all too unhappily visible in recent times. I think it has been universally accepted by those who have thought, written and spoken about this topic that, however distasteful one might find some contributions to public debate on these issues to be, nonetheless, mere distastefulness cannot, in itself, be a legitimate ground for seeking to limit such statements because otherwise one would be unduly limiting free speech.

I suspect that the comments of Mr Morgan and, to some extent, even of Professor Blainey, would come within that description and justify that kind of response. The matter is still being looked at very closely by the Government. As I said before, it is the subject of a report from the Human Rights Commission under Mr Bailey which came down in the latter part of last year. It has been the subject of a request by the Government for submissions from the public which have now been received in quite a significant number. I am in the process of trying to engage a high level consultant, given limited resources presently within the Department to devote to this job with the thoroughness and speed which it needs, in order that I might be in a position to make some appropriate recommendations to the Government in a few months time. Beyond that I am not in a position to comment further except to say that I think Mr Bailey's remarks and the Commission's report have been rather spectacularly misrepresented in a number of places. What is involved in their recommendations is not any penal sanctions being attached to language which they argue in limited circumstances should be rendered unlawful. Rather, it is a matter of that language exposing itself to the kind of jurisdiction which otherwise exists for the Human Rights Commission to seek to conciliate and, in other ways, ensure that that conduct is not repeated.

It is not a matter of creating a criminal offence. That has not been proposed although, on one version of what the Commission has proposed, it would involve making certain kinds of speech unlawfully. The other thing the Commission, of course, has proposed which, as I have indicated in many ways seems to be a possibly more attractive solution, is to expand, to a small extent, the notion of group defamation to enable affected groups to take some kind of civil remedy in appropriate circumstances. But the Government has made no-


Senator Durack —It would be class action against Mr Hawke, would it?


Senator GARETH EVANS —I leave it for Senator Durack, in his usual jurisprudential flair, to analyse the nature of the case that might be made in that sort of circumstance. It simply is premature to speculate how any such law might operate. It begs a whole series of questions about whether there should be such a law at all. I repeat that the Government has made no decision about this, but we do acknowledge, as I hope Senator Durack would, that it is an acutely difficult one to get the balance right. I simply hope that any further contributions from him or from the Opposition generally to any debate we might have are constructive and not destructive and that what we end up with, if anything at all, is something that is a genuinely effective and sensitive provision and not one that goes too far in either direction.