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Wednesday, 23 August 1995
Page: 227

Senator ABETZ (5.24 p.m.) —This bill is appropriately entitled the Racial Hatred Bill because, if enacted, it will unwittingly assist those few in the community who believe that they are better or superior because of the colour of their skin or their cultural background. The true value of our fellow human beings is to be determined by their personality, their morality, their integrity—in other words, their character and not the colour of their skin or their cultural background. I stand here along with my Liberal colleagues implacably opposed to the peddlers of racial hatred. My own party, when it was formed some 50 years ago, had as one of its 17 founding principles as set out in We Believe the following statement:

We believe in religious and racial tolerance among our citizens.

That was the Liberal stance 50 years ago. It remains the stance today. Labor has—as did Senator Chris Evans in his contribution that has just gone before—sought to rewrite history by portraying the Labor Party as the party of promoting tolerance. History will tell us otherwise. Let me give a few examples. A former Labor Premier of New South Wales, a man the Prime Minister idolises, Jack Lang, was a well-known anti-semite and supporter of the White Australia policy. A former leader of Senator Evans's party, Arthur Calwell, had a number of things to say, for example:

Japanese women should not be allowed to pollute our shores.

That was leader of the Australian Labor Party. In 1972 he said:

If Australians are ever foolish enough to open their gates in a significant way to people other than Europeans, they will soon find themselves fighting desperately to stop the nation being flooded by hordes of non-integratables.

Just before he died in 1973 Arthur Calwell said:

No red-blooded Australian wants to see a chocolate coloured Australia in the 1980s.

What a proud tradition the Australian Labor Party has! But that deals with a past generation of Labor Party politicians. What about the present generation? Nobody encapsulates that better than the current Prime Minister (Mr Keating), who said in his maiden speech on 17 March 1970:

It is time we considered the enormous cost of bringing migrants to this country. . . After all, the best migrant is the infant Australian.

How is that supposed to make people like Senator McKiernan, Senator Spindler and me feel? What sort of attitude does that develop amongst the Australian born to migrants? I ask the rhetorical question: what sentiment does that develop towards migrants such as the Prime Minister's own wife? The callousness and harshness of the Prime Minister's comments will never be undone without a full recantation by the Prime Minister. His arrogance will unfortunately deny him this honourable course. If we need another classic example of Labor's attitude we need look no further than the member for Kalgoorlie (Mr Campbell), who undoubtedly is off to address another League of Rights meeting shortly.

Senator Crowley —Mr Acting Deputy President, I take a point of order. I am very concerned about those remarks attributed to the Prime Minister, including understanding what is in his mind and callous attitudes, et cetera. I draw the attention of Senator Abetz to the comments made by his colleague Senator Vanstone, who said that this debate was not about who would re-establish the high moral ground. So it would be of enormous assistance if he respected the Prime Minister's and other people's views and got on with his comments.

  The ACTING DEPUTY PRESIDENT (Senator Chapman)—Minister, there is no point of order. As you well know, it is a debating point the senator is making. I ask you not to take frivolous points of order.

Senator ABETZ —That was a shameful waste of my time. We on this side have tried to give everybody their full 20 minutes. As soon as you start scoring points off members of the Labor Party they change the rules. The minister clearly did not listen to her own Labor backbencher. Senator Evans tried to get stuck into our side of politics on this matter. All I was doing was quoting verbatim what was said by Labor members past and present.

  In contradistinction, the Liberal Party has a proud record in the area of racial tolerance. We believe that the way to deal with people's prejudice and ignorance is through education. It is ignorance that provides fertile ground for racism. As Mr Wakim, Secretary of the Australian Arabic Council, told the legal and constitutional legislation committee dealing with the Racial Hatred Bill:

The thrust of what we really want to inject into this discourse is not so much about the legislation, but to try and have a look at the roots of the problem rather than the symptoms, and have a look at how we can redress the ignorance that is a fertile ground for the racism in the first place, and we can redress the gap between the victim and the law, rather than the gap within the law.

That is why the coalition has proposed a $10 million fund for a multipronged education package. Because of my ongoing interest in this area I asked during estimates hearings what amount of money the Human Rights and Equal Opportunity Commission had spent on public awareness programs in trying to fight manifestations of racism. The answer for the year 1993-94 was the princely sum of $123,000—the government is spending a lot more money on the defence of Dr Carmen Lawrence—hardly the sort of financial allocation one would expect from a government allegedly genuinely committed to the elimination of racial hatred.

  I hope that my contribution to this point has set out in no uncertain terms the coalition's commitment to genuine racial tolerance and opposition to those who preach their poison of racial hatred and also our rejection of Labor's duplicity on this issue.

  I turn to the specifics of the bill. The bill proposes the establishment of three new crimes. Firstly, there is the prohibition of threats to cause physical harm because of race, colour, national or ethnic origin; secondly, prohibition of threats to property because of race, colour, national or ethnic origin; and, thirdly, prohibition of incitement of racial hatred because of race, colour, national or ethnic origin. The head of power for the establishment of these new crimes is the external affairs power.

  Criminal law has traditionally been the province of the states. The activities proposed to be outlawed by the first two crimes are already crimes in every state and territory of the Commonwealth and, might I add, they do it a lot better. During hearings by the legal and constitutional affairs committee I asked the following question in relation to the first two crimes:

Do you accept that all types of behaviour, irrespective of motivation, are already covered by criminal law in every single state and territory of the Commonwealth?

Mrs Jackson, Deputy Government Counsel, Civil Law, Attorney-Generals' Department, responded:

Yes, that is true.

Let me repeat the point that the proposed legislation will mean that there will be a lesser penalty if the crime is committed and prosecuted pursuant to these proposed new sections of the Crimes Act than if they were prosecuted under existing state legislation. Mr Pearce, of the Civil Liberties Council, told the committee:

But let me make this point about it . . . under section 198 of the Crimes Act in Victoria, for example, for the threat to damage property the penalty is 10 years. Under this legislation it is two years. Under this legislation you get time off for being a racist.

Clearly, the educational value of such an anomaly is in direct contrast to what the bill seeks to effect. This indicates that the legislation has not been thought out in the manner that it should have been. In fact, what has occurred is that under close scrutiny this legislation is now embarrassing Labor. It is noteworthy that Mr Pearce is from the Victorian Council of Civil Liberties, hardly an organisation committed to the promotion of racist ideals.

  I am very strongly of the view that the way to deal with racists who commit crimes is to treat them as the common criminals they are. As Ms Wallace, also from the Council of Civil Liberties, said very succinctly:

Some 30 years ago, we had chronic domestic violence. We still do, but we have decided in the interim that defining domestic violence as violence, and prosecuting the people who perpetrate the violence on members of their family, that has made the difference. Not treating them as having a particular kind of violence, but treating them as ordinary perpetrators.

She went on:

And if there are levels of racial ignorance, you have a fertile ground for the growth of racism. We must address community ignorance about race, and about victims, and we must do it with a budget and with a knowledge that a budget has to be commensurate with the difficulty of the task in front of us.

We have committed $10 million to that fund.

  In creating a separate crime, we run the risk of making political martyrs out of common criminals. Let us never forget that the extremists from all types of causes will go to gaol to make a statement. In my home state of Tasmania, the Greens are very well known for doing exactly that. I have no doubt that racists will also try the same tactic, especially in relation to proposed section 60, which deals with the third crime that is to be created. From that section, I believe that political martyrs may be born if prosecutions are raised. This provision will turn the expression of a view into a crime even if no threat or act of violence is perpetrated.

  I join with John Stuart Mill when he said:

We can never be sure that the opinion we endeavour to stifle is a false opinion, and if we were sure, stifling it would be an evil still.

The worldwide experience of this type of legislation has shown it to be a dismal failure, commencing in a country where, if it had been effective, one of the greatest tragedies ever inflicted upon humankind by humankind should have been avoided. I refer to the holocaust. Mr Borovoy says at page 50 of his book entitled When freedoms collide: the case for our civil liberties, which was published in 1988, the following:

Remarkably, pre-Hitler Germany had laws very much like the Canadian anti-hate law. Moreover, those laws were enforced with some vigour. During the 15 years before Hitler came to power, there were more than 200 prosecutions based on anti-semitic speech.

He goes on:

As subsequent history so painfully testifies, this type of legislation proved ineffectual on the one occasion when there was a real argument for it. Indeed, there is some indication that the Nazis of pre-Hitler Germany shrewdly exploited the criminal trials, in order to increase the size of their constituency. They used the trials as platforms to propagate their message.

Now, 60 years later, with the aid of mass communication, the platforms provided by such trials to propagate racist messages would be all the greater.

  Let me add as an aside that this book by Mr Borovoy draws on journals such as Jewish Social Studies and Contemporary Jewish Record, the latter of which details that Joseph Goebbels was sentenced twice—once to three weeks and once to six weeks in prison—for insulting a Jewish deputy police commissioner of Berlin. The rest is, of course, a very shameful chapter of human history.

  A very interesting article in the Australian Journal of Human Rights written by Anne Twomey is entitled `Laws against incitement to racial hatred in the United Kingdom'. At page 235, she makes the following observation:

Every time there is a review of these laws, the allegation is made that they are not achieving their functions, and should be amended. Although the problems are easy to identify, the solutions have been elusive and the Westminster Parliament is still struggling to find the best approach.

She concludes at page 248 with this further observation:

Experience in the United Kingdom has again shown that many of the most notorious racists are capable of avoiding conviction under such legislation, and that it is often members of minority groups who do not have the same access to legal advice who are caught by the legislation.

If the aim of racial vilification legislation is to set out community standards of behaviour, then it may well achieve this objective. However, one might wonder whether there are other less coercive means of achieving the same results.

I endorse Anne Twomey's perceptive observations.

  This legislation has unfortunately drawn division within the ethnic communities and has also been misunderstood by the very top people in the ethnic communities. For those who might be interested, on 17 February 1995, at page 289 of the Hansard, Mr Rebikoff, the president of FECCA, the Federation of Ethnic Community Councils of Australia, said this to the committee:

. . . We are talking about a sanction being imposed in the most extreme situation. We are not talking about this legislation reverting to the immediate course of criminal sanction. We are saying that you go through the conciliation process first, depending on the seriousness of that offence.

His legal adviser, Mr Lacey, then interrupted him. The Hansard shows that he says this:

Not quite. They are two entirely separate sanctions.

The unfortunate thing is that Mr Rebikoff had gone right around Australia promoting this legislation on the misunderstanding of how it would work. Of course he was getting support for it, but unfortunately he failed to understand it.

  I do not believe that Mr Rebikoff did that with any malintention. But the simple fact is that he was wrong and he sold it incorrectly. Now that the ethnic communities understand the difficulties with the legislation, they have written to people such as Senator Short, whom I congratulate for giving a most excellent address and for his detailed consultation with the various ethnic communities in this country.

  If we turn to the civil sanctions that this bill provides, it is noteworthy that Mr Peter Bailey, in his evidence to our committee, suggested that proposed section 60 ought to be removed from the criminal area and put into the civil area to overcome a whole host of problems, including the constitutionality of it, given the inherent right to freedom of speech discovered by the High Court in recent times. Mr Bailey's evidence was based on his background as a former human rights commissioner.

  The opposition criticism of the civil sanctions is based on its broad framework. The legislation deals with such terms as `offend' and `insult'. Mr Pearce said:

Dealing first of all with the civil side, essentially the effect of that legislation will be to protect people from hurt feelings. The legislation is designed specifically, and in terms, to protect people from offence and insults.

No other legislation or principle of law that we are aware of in this country, has that effect. No other legislation or principle of the law that we are aware of seeks to protect people from hurt feelings. We say the government has no role as the guardian of hurt feelings.

We say that no case has been made out to give the government that role, and we say further that no case has been made out to why hurt feelings from racial abuse, as opposed to any of the many other forms of abuse to which people are subjected on a daily basis, ought to be singled out for special protection.

It is very easy to foresee a situation where people can be offended, insulted or humiliated on the basis of the colour of their hair or their lack of hair; their size, be it height, such as tall or short, or their width, be they thin or not so slim; if they wear glasses; or whether they have a large nose or chin; or on the clothes they wear. The range of possibilities is quite endless. I support the view of the Victorian Council for Civil Liberties in relation to this legislation going way over the top. The implications have not been thought out in a mature and sustained manner. With the current minister, we would not expect it to be considered in such a manner.

  The legislation does provide defences if it is done in `good faith' or on a `scientific', `artistic' or `reasonable public interest' basis. If we are to have tribunals in this country that are to determine whether something said was in the proper pursuit of `scientific views' or `artistic performances', we are really getting into the realm of the `thought police' state. The idea that a tribunal might determine that somebody's experimentation or views will be classified as scientific but others not flies in the face of those fundamental freedoms of academic freedom and freedom of speech which we in the Liberal Party so strongly embrace.

  I can foresee a situation where, given an unfortunate social climate within this country, a defence might be established on the basis of a `scientific pursuit'—indeed, that was Hitler's defence, was it not—or that a certain performance is `artistic', albeit that it is absolutely and utterly crass. To have those sorts of defences indicates how this legislation impinges on fundamental freedoms.

  Unfortunately, because of the interruptions of Senator Crowley during my speech, I will undoubtedly run out of time. I seek leave to incorporate the remaining part of my speech in Hansard.

  Leave granted.

  The speech read as follows

If those fundamental freedoms are impinged upon, we do not want the "thought police state" to develop even further where government, through its appointed people in the Human Rights Committee, will determine whether something is scientific or artistic. Clearly, this legislation goes too far and ought be condemned.

This legislation is far too broad, because the law tries to make unlawful practices which are merely socially unacceptable. Uncertainty of meaning means uncertainty in the law. And a fundamental for the rule of law to function effectively, is that there be certainty.

This legislation does not provide that type of certainty. Indeed, the only certainty it provides is, that it will be a bonanza for my profession, but on its way it will create heartache and hurt to countless people who will be inappropriately taken through the processes of this legislation.

Mr President, I look forward to dealing with the bill in more detail in the Committee stages.

Let me conclude by adopting Mr Bartlett's view, who so cogently summarised the defects of this legislation, when he said at page 345 of the Hansard:

"I would say that in my view the bill will do nothing to reduce or stop racial hatred. It seeks to take the easy approach of hitting any offender with a big stick, rather than the more difficult task of further encouraging multiculturalism through education and assimilation.

The process of multiculturalism and assimilation is continuing in this country, and it would not be encouraged by harsh, criminal and civil remedies."