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Parliamentary Joint Committee on Human Rights
01/02/2017
Freedom of speech in Australia

ANDREWS, Mr Timothy, Executive Director, Australian Taxpayers' Alliance

MARAR, Mr Satyajeet, Research Associate, Australian Taxpayers' Alliance

[16:45]

CHAIR: I now welcome representatives from the Australian Taxpayers' Alliance.

Mr LEESER: I should just note that prior to my election to the parliament I was on the advisory board of the Australian Taxpayers' Alliance, although I think I disagree with their submission.

Senator PATERSON: I think you are a serial joiner of things, Julian.

Mr LEESER: No, I am just popular—what can I say!

Mr PERRETT: If we find out you are Bill Leak's cousin!

CHAIR: Do either of the witnesses have any additional comment to make on the capacity in which they appear today?

Mr Marar : I am a part-time employee of the Taxpayers' Alliance and I am the principal author of the submission before you today.

CHAIR: I invite you to make a brief opening statement, after which the committee members may ask some questions. In the interests of time, could you keep the opening statement fairly brief.

Mr Andrews : Thank you for the opportunity for us to appear before the committee. While primarily a taxpayer protection organisation, the ATA is concerned also with what we consider to be undue restrictions by the government on individual liberties. Like many other restrictions on freedom of speech which we have campaigned upon—for instance, we ran a large campaign against the metadata retention policies, which we considered an imposition on privacy—this is a concern for our members, to the extent that close to 8,000 of our members wrote formal petitions to the committee. We also note that a lot of non-traditional groups such as AiG have also joined in writing to this committee, which is why we feel that, due to the large cost of the human rights apparatus in Australia to taxpayers as well as—one of the things that we note—the large number of taxpayer funding attempts going to groups in support of retaining the current situation, it was necessary for us to involve ourselves in this debate. But Satya will detail a bit more of the ATA's position on this.

Mr Marar : We would like to see a repeal of section 18C for three main reasons: firstly, because it contradicts freedom of speech, which is a crucial value to our Western liberal democracy; secondly, because it unfairly punishes those who hold divisive political opinions, even if they are not ultimately convicted of an offence under this section, rather than doing what it is intended to, which is to protect minorities from racial abuse; and, thirdly, it is largely redundant because it operates alongside other laws we do have at a federal and state level that pertain to harassment, intimidation and abuse—even offensive language laws—which operate fairly effectively. The central problem with the section is in its very wording, which is: 'likely … to offend, insult' or 'humiliate'. These are highly subjective terms. The problem is that what this does is force parties to be at the mercy of a judge to convince them that their speech is legitimate even if it is plainly evident to our community that this is not an example of racist speech but just divisive opinion. As a result, it creates a distraction and diversion from actual racial issues and issues of racism and turns people who hold racist or divisive views into martyrs and victims, and that ultimately benefits no-one and no legitimate cause.

It is also our submission that a word like 'vilify' will not ultimately be beneficial—it will simply replace the word 'offend' with 'vilify'—because that word can be used interchangeably in common speech with 'offend'. We also do not know how the court will interpret that word because of its subjectivity. It is our belief that the problem with the law is not so much in how the Human Rights Commission operates in limiting complaints but in its very wording. From my personal experience, having come to this country as an immigrant, I can honestly say that none of the racists whose abuse I have taken have ever thought about section 18 C or had it in the back of their heads at all. What they are afraid of are the police and the criminal sanctions that will ultimately restrict them, and how we change their minds is through public engagement and education. I think those are the things we need to focus on when we talk about racism. Section 18C does not operate the way it is meant to operate. It defeats community expectations, it harms freedom of speech, it has failed to achieve what is meant to achieve and, therefore, should be repealed.

Mr PERRETT: We have had evidence and submissions that talk about the impact of racism on communities. There was mention of the fact that once racism is experienced it ripples through communities and people then become reluctant to engage outside of their own community for fear of again been targeted by racist comments. What do you say in relation to such people's freedom of speech and how it would be impacted by removing the current protections that are in section 18C?

Mr Marar : What I would say to that is that there has been an issue of narratives been distorted essentially here, whereby a link has been drawn between the specific section, being 18C, and that sort of racism and its effects on people in making them not engage with their communities and the wider world. What we see happen in practice, though, is that when that sort of racism is called out and actively attacked it actually becomes a rallying call for the community and shows ethnic minorities that the community is behind them and that society is behind them. When you have a particular law, like section 18C, rather than those other protections that exist in law, what this law does is to draw the focus away from the kinds of cases where someone is yelling abuse at someone else on the bus and interfering with their self-esteem and towards the cases where someone has a divisive or controversial view on a racially charged issue. We spend time debating that sort of thing and whether that is problematic rather than whether racism itself is problematic and whether racism itself is a huge issue for our society. So ultimately minorities are best empowered to deal with racism when they see that they can have that self-determination, when the government does not send them the message that racism is inevitable and the only thing we can do is force people who are racist to shut up. That is actually the wrong message. I believe that if you repeal the section you actually start on the path towards solving that problem and having ethnic minorities engage more in the public discourse and stand up against racism.

Mr PERRETT: Earlier today people sat in the chair that you are sitting in, Mr Marar, and said the complete opposite of that—from the Indian community's experience, from the Chinese community's experience, from the Indigenous community's experience and from the Jewish community. They were saying that the protection of 18C empowered their community because they were able to work towards shutting down racist comments.

Mr Marar : Sure, and they are important stakeholders and I can accept that completely. But at the end of the day ethnic communities are not homogenous and single associations cannot speak for entire communities or ethnic communities in general. I certainly do not claim to speak on their behalf either but what I would say—

Mr PERRETT: But you speak on behalf of Australian taxpayers?

Mr Marar : Yes. Certainly.

Senator McKIM: Who are not homogenous either.

Mr Marar : Who have certain common interests.

Mr PERRETT: But in terms of balancing their right to be free from discrimination and freedom of speech, you are saying that 18C goes too far?

Mr Marar : Certainly. I do not think that 18C is the most important protection that there is in instances of racism. We can see that in the current debate being focused on the kind of thing which 18C and 18D are supposed to prevent, which is people being taken to court for divisive political opinions. What we have seen happen in cases like the Bill Leak cartoon, for example, is that that cartoon coming out was a reflection of attitudes that certain people did in fact hold. What that cartoon did was that it started a debate about those attitudes and why those sorts of generalisations might be problematic or unfair. I cannot speak for every ethnic minority here, but I would rather that sort of discussion happen and we actually dismantle and tear apart these negative viewpoints than simply have the government say, 'You cannot say that.'

Mr PERRETT: But isn't that exactly what happened? The people in Australia debated the merits, the humour, the intent of that cartoon. Mr Leak drew the cartoon. The world turned on. Mr Leak did not end up in court. There was a process. So you are actually saying that we were not able to have a civilised debate?

Mr Marar : That is not what I am saying. What I am saying is that we had a civilised debate but that debate would have happened one way or the other. What else happened was that there were a lot of news stories and there was a lot of press about Bill Leak being threatened with a lawsuit for saying what he had said. A lot of people—

Mr PERRETT: A civil process might be the first step in that.

Mr Marar : Certainly a civil process, but, indeed, there is the very threat of a lawsuit for having these views. This does send the message that you are not allowed to have certain views and that you are some sort of martyr for holding or expressing those views. Luckily in that case the complaint was dismissed fairly quickly.

Senator PATERSON: Withdrawn, actually, rather than dismissed.

Mr Marar : Withdrawn—my apologies. But the fact of the matter is there was still that diversion. We believe that the focus should be on the debate and not on the diversion.

Mr PERRETT: Are you concerned that any change would send a dangerous message to the community about the type of behaviour that is acceptable and could result in an increase in racist behaviour? You might have heard this question earlier today.

Mr Marar : I have heard the question and I certainly appreciate the sentiment, but, at the end of the day, we are weighing up freedom of speech and a person's right to have a certain opinion and have their opinion critiqued and dismantled, which is a long-term process rather than something where you see an immediate effect. There is the potential for some people to feel that a legislative change somewhat empowers them, which it actually does not, because we still have all those other protections against offensive speech which still exist within the law. Perhaps parliament can help with that problem by making it clear that we have these other laws and the community should be empowered to rely upon the other laws, as they do, and—

Mr PERRETT: But not this law?

Mr Marar : Not this particular law, no.

Mr PERRETT: They should be empowered by relying on other laws, but not this law because this law does not empower them. I cannot quite see the logic. I might leave it there.

Senator PATERSON: Would you like to finish that answer, Mr Marar?

Mr Marar : Yes, sure. The problem with this particular law is the kinds of cases that you see litigated are those that involve often divisive opinions rather than the racial abuse that you say will be emboldened. Suddenly it is a political inconvenience issue, certainly, and I can understand how some people might interpret that message. But I believe, based on priority, we should give freedom of speech and free intercourse and free discourse, and this committee should err on the side of favouring that right.

Mr PERRETT: I just want to be clear. Only about 96 cases in 20 years have actually been litigated. There are significant numbers that are never litigated and never publicised, and we have heard today that 98 per cent of people involved, whether they are accused or fronting the commission, are happy with the process. I just want to make sure that you are using the right word. You were talking about the 96 cases, not everyone involved with the Human Rights Commission process?

Mr Marar : I am not ultimately saying that the entire process is completely flawed, but the issue here is that the process has been abused. When we talk about freedom of speech—

Mr PERRETT: In the litigated cases, do you mean?

Mr Andrews : There have also been people who have been forced to settle and in later cases have regretted this, which was one of the instances, for instance, in the QUT cases. So to simply say that there were cases that did not go to litigation—

Mr PERRETT: So they were coerced into settling, do you mean?

Mr Andrews : Pressured into settling. At least one respondent was pressured into settling, I believe, in the QUT case. They essentially felt that they were coerced into doing so. So, simply to use the argument that, because some cases did not go through to fruition, it was a valid use of section 18C. I do not think is necessarily an accurate use.

Senator PATERSON: Mr Marar, you will be relieved to know that Professor Anne Twomey shares your view that there are other laws more effective than 18C addressing these issues. Mr Andrews, in your opening statement you made a reference to a number of organisations in this debate being taxpayer funded. Could you expand a little bit on that comment?

Mr Andrews : One of the interesting things that we have been looking at is the people who have been funding submissions to this inquiry. This is still a very preliminary assessment, particularly given the batch of submissions that were uploaded yesterday and also the length of research needed to do this. For organisations that are in favour of retaining the current wording of 18C, we have identified net taxpayer funding of slightly over $150 million for last financial year, whereas organisations that have come out for reforming or repealing section 18C have received zero dollars in taxpayer funding over the past financial year, which we would consider is a relatively interesting use of—

Mr PERRETT: Charity status does not count?

Mr Andrews : Of course not. That is not taxpayer funding. We are talking about taxpayer funding of an organisation. We think that is a very interesting use of bargaining power and that it also raises questions, as we have raised in the past, about essentially—due to the fungibility of funding—taxpayer-funded lobbying. We believe that it is an immoral use of taxpayer dollars for taxpayer dollars to go into lobbying the government. This is still, I stress, very preliminary in our assessment, and we are still looking into this further—and not necessarily everything falls into this and we are not even including things like the government of Victoria lobbying the Commonwealth government—but we consider that this raises some relatively serious questions.

Senator PATERSON: Thank you. I will not name them, but there was one organisation who came to us in Hobart on Monday that sent four people along and I think in the view of many committee members we could not quite establish the connection between their organisation and this issue.

Ms MADELEINE KING: Was that Family Planning?

Senator PATERSON: I was not going to name them, but you are welcome to. Mr Marar, one of the features of this debate has been an accusation by some people that you would only be in favour of changing this law if you are an Anglo-Saxon white male. In fact, there was a member of parliament who said that it was white males I think of a certain age who are in favour. I am not sure you would qualify in that category—certainly not by your ethnicity or your age, but you are man so you do have that to answer for. I am interested in your reflection on why, as someone who is an immigrant to this country and who has experienced racism yourself, nonetheless—given those characteristics—you are still in favour of reforming the law.

Mr Marar : I think the problem with that sort of characterisation of, 'You have to be an Anglo-Saxon white male to propose the change,' firstly, is patently false and, secondly, it feeds into a narrative of the other side. It is an attempt to shut down debate based on stereotyping the other side, which is ironic here because we are dealing with racism, which is based on making certain assumptions and stereotypes about people. Like I mentioned before, that just creates a big distraction away from actual debates on controversial issues and more towards debates about what you can and cannot say, which does absolutely nothing, quite frankly, to stop racism. These sorts of laws did not stop me from copping abuse in the schoolyard; what stopped that abuse was me standing up for myself and me having the backing of the teachers and the education system behind me, should I have needed that. I think that is where the focus needs to be—not so much, 'You can't say that, because that is really problematic,' and that is my view on this issue.

Senator PATERSON: Thank you.

Ms MADELEINE KING: I wonder if I might ask you about your research and also ask—the committee might discuss it later—if you are willing to table that research. In that, how many of the submissions you have gone through, accepting that there is a lot to do and there are a lot of submissions to go through, how many did you figure support no changes to the Racial Discrimination Act?

Mr Andrews : If you count individual submissions, I think the 8,000 that our members submitted would show that the vast majority supported them, but in terms of organisations I would consider that the majority of organisations—virtually all of whom are taxpayer funded to some degree—did support the current form.

Ms MADELEINE KING: Have you in your research gone through and assessed how much of their funding is taxpayer funding? Is it two per cent, 10 per cent, 100 per cent?

Mr Andrews : We have not gone to that level.

Ms MADELEINE KING: Would you propose to do that to make it a fair—

Mr Andrews : We would certainly love to have the resources to be able to go through the financial documents of every single organisation, but that is not something which I think we would realistically be able to go into.

Ms MADELEINE KING: It is a big job.

Mr Andrews : It is a huge job.

Ms MADELEINE KING: I just wonder how you are getting the figures that you have already.

Mr Andrews : The ones that we have been those who, in their annual reports, have said, 'This is the amount of taxpayer funding we received.'

Ms MADELEINE KING: In the last year, or—

Mr Andrews : In the financial year. Not all organisations have done this.

Ms MADELEINE KING: Are there any cases that you are aware of before the 2011 case of Bolt, Eatock and others that you consider an abuse of process of the Federal Court and the Racial Discrimination Act?

Mr Andrews : None that come to mind for me.

Ms MADELEINE KING: So it is post-2011 and basically the cases we have talked about already.

Mr Andrews : However, in the years before that I was living overseas and prior to that I was a student, so I do not necessarily—

Ms MADELEINE KING: I do not if that is an excuse for coming to a committee and alleging an abuse of process on different cases and not looking before a certain time.

Mr Marar : I think one of the problems with the section is that it is so subject to change over time. Indeed, even the reforms to change it often make reference to what a reasonable member of the community might be offended by. The problem with that is that it operates today very differently to how it might have been intended to operate originally. Indeed, if you look at the second reading speech for the 1994 law, I forgot the name of the MP but he makes reference to, 'This is designed to protect people from racist abuse'. Since that period we now have so many other laws which do that more effectively. In fact, he probably did not foresee the fact that the law could be used in the way it has been used some 15 years later.

Mr Andrews : Even the case for protections like bullying legislation, stalking legislation—all of these new laws at a state level which have developed now—were to provide protections that did not necessarily exist.

Ms MADELEINE KING: Certainly. Could I seek to clarify paragraph 28 of your submission:

The ATA further wishes to submit that the inclusion of 'racial vilification' is an unacceptable intrusion upon freedom of speech, as it is a term of imprecise definition capable of subjective value judgement including based on the idea of subjective offensiveness. As such, the ATA considers any "compromise" which includes this term unacceptable.

So the inclusion of racial vilification is unacceptable. I want to ask you about competing rights, given we have two rights competing here—the right to freedom of speech, which you agree with, and also the right to live a life free from discrimination and racism. Do you believe both of those rights exist, and how do you think they interact?

Mr Marar : I certainly believe that there is, to an extent, the right to be free from discrimination. For example, I would not want to be denied an economic opportunity simply because of the colour of my skin, my accent or whatever other reason. But, when you make the threshold a lot lower and you include things like someone's hateful words, the fact of the matter is people are going to be yelling racist abuse 100 years from now. It is going to still exist.

Ms MADELEINE KING: I get what you are saying, but by the same token you would agree there is a right to live a life free from discrimination?

Mr Marar : I would agree with the general principle, but we would probably have issues with how exactly it should be applied, because—

Ms MADELEINE KING: It is incorporated into Australian law. Governments over many years have done this and it is part of our law now.

Mr Andrews : One of the issues, and I think Senator McKim very correctly raised it previously, is that we are seeing a resurgence of xenophobia and nationalism around the world. I do not think anyone here can deny that or the troubling nature of what we are seeing now. What we would argue, though, on the basis of the evidence, is that factors such as restrictions on freedom of speech such as 18C, despite perhaps being well intentioned, do not have the effect of enabling us to solve this problem. They have the counter-effect of suppressing and pushing underground negative thoughts and racist views. You cannot necessarily identify a racist and publicly shame them or educate them. So you see the festering of these vile views occurring.

We could have a debate about positive rights and negative rights, whether or not there is a right not to be offended or a right not to be discriminated against, but we all agree that discrimination is bad. The question is: what is the way to stop it? We would say that changing cultural norms rather than this rule-based approach is the way to combat it. We see in Europe, for instance, a rise in nasty incidents of anti-Semitism. Holocaust denial is illegal, and yet we are seeing large swathes of the community believe in it. Why? Because by suppressing it you do not get an opportunity to identify and attack it. So it really should not be a question of competing rights but a question of being able to use freedom of speech as the sunlight, as the best disinfectant, to best defeat these sorts of views.

Ms MADELEINE KING: I will wrap up with a point of clarification. No-one is suggesting that there is a right not to be offended, although a lot of people have put in submissions saying that somehow people supporting 18C think there is a right not to be offended. That is not the case. But there is a right to live a life free from discrimination, as there is a right to freedom of speech. I will leave it at that.

CHAIR: Mr Marar and Mr Andrews, thank you very much for appearing before the committee today.

Mr Andrews : Thank you.

Mr Marar : Thank you.