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Wednesday, 22 March 2017
Page: 1855


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (16:49): I table the explanatory memoranda relating to the bills and move that:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

HUMAN RIGHTS LEGISLATION AMENDMENT BILL 2017

The Human Rights Legislation Amendment Bill will reform section 18C of the Racial Discrimination Act 1975 and amend the complaints handling processes of the Australian Human Rights Commission (the Commission).

The Bill will give effect to the recommendations of the Parliamentary Joint Committee on Human Rights (PJCHR) in its report on Freedom of Speech in Australia, which was tabled on 28 February 2017.

The Bill will also make minor technical amendments to the Commission's reporting and conciliation requirements, as well as its governance arrangements. These minor amendments were requested by the President of the Commission to improve efficiency and reduce regulatory burden in how the Commission exercises its jurisdiction.

PJCHR report

On 8 November 2016, the PJCHR was asked to inquire into and report on two issues relating to freedom of speech in Australia. This reference was made in response to growing public concern about the effect of section 18C of the Racial Discrimination Act on freedom of speech, and about the Commission's complaints handling procedures.

The concern arose following certain high profile cases, namely, a cartoon by the late cartoonist Mr Bill Leak which was published in The Australian newspaper on 4 August 2016, and a case concerning students from the Queensland University of Technology posting comments on a Facebook page about having been refused access to a computer lab for Indigenous students.

The PJCHR received 11,460 items (consisting of submissions, form letters and other pieces of correspondence). The PJCHR held nine public hearings in total, across each state and territory.

The PJCHR's majority report made 22 recommendations; most concerned the Commission's complaints-handling processes. The Committee did not reach a concluded view on the appropriate wording of section 18C. Rather, it put forward a range of proposals that had the support of at least one committee member.

Why is the Government reforming s. 18C?

It is a hallmark of a free and democratic society that all of its members have the right to voice their opinions. That is what freedom of speech means. That freedom of speech is integral to the operation of a liberal democracy has been recognized by the High Court, when it acknowledged that freedom of political communication was a necessary implication of Australia's Constitution. In 2004, Justice Michael Kirby, in Coleman v Power, put it this way:

"In Australia, we tolerate robust public expression of opinions because it is part of our freedom and inherent in the constitutional system of representative democracy. That system requires freedom of communication. It belongs as much to the obsessive, the emotional and the inarticulate as it does to the logical, the cerebral and the restrained."

Yet, as we know, people have widely differing views. As the great American judge, Oliver Wendell Holmes, said more than a century ago, in his famous opinion in Lochner v New York , "A Constitution … is made for people of fundamentally differing views." As both Michael Kirby and Oliver Wendell Holmes recognized, every citizen of a democracy, whoever they may be, wherever they may stand on any given issue, has an equal and fundamental right to hold and to express their views. And however profoundly others may disagree with or disapprove of those views, we all, as citizens of a democracy, have an obligation to respect the equal right of every other citizen to hold and express their views. As I said in the first speech I ever gave in this Chamber:

"[A] liberal society is only worthy of the name if its citizens enjoy an absolute right to hold, and to express, opinions which other members of society find outrageous. Any attempt to limit that right, whether by actual censorship of opinions or by the insidious new cultural tyranny sometimes called 'political correctness', is a fundamental violation of a free society. For as long as I sit in this place I will defend the absolute right of all citizens to the free expression of their opinions - no matter how unfashionable, ignorant or offensive those opinions may seem to others,"

We see the clash of fundamentally different views on display every day in the Senate. The very purpose of the Parliament is to bring those views together, as representative of the whole Australian people, and engage in a contest of ideas as we debate the great issues of the day.

Sometimes, as we debate those ideas, we will say things that are offensive to others, or insulting, or even humiliating. That is partly because one person's ideas may themselves be offensive to a person who has a completely different point of view, and sometimes because, in making our case, we may hurt the feelings of others. That is the way democracies work. That is why we proudly describe our democracy as "robust". In a democracy, it should never be a reason to censor somebody's participation in debate that others may feel offended, insulted or humiliated by what they say.

What political cartoon, for instance, does not humiliate its subject? That, in a sense, is its very purpose: to make a point sharply, wittily and memorably. That is something the late great Bill Leak - whose spirit presides over this debate - knew better than anyone, which is why his cartoons were so penetrating and so effective. It was something the cartoonists at Charlie Hebdo knew too, which is why they were a target for authoritarians and fanatics.

Yet s. 18C specifically prohibits the expression of views merely because they may insult, offend or humiliate. It is political censorship, pure and simple. A law like that has no place in a free country. It is not to the point that s. 18D provides certain carve-outs or exemptions: there should not need to be exemptions from a prohibition on free speech, because free speech should never be censored in the first place. And, of course, whatever the exemptions, the very existence in our law of a provision like s. 18C has a chilling effect on freedom of speech which can never be measured, but is inevitably harmful.

That is why the Government is moving to remove these words. They are not words which are necessary to protect people against racial vilification, because we are rewriting the section to provide for stronger protections: by retaining the word "intimidate" and introducing the word "harass". If there is anyone left in this country who sincerely believes that s. 18C should not be reformed, let them ask themselves this question: what kind of anti-racial vilification law fails to prohibit harassment? Those who oppose this reform should ask themselves this question: what is the conduct that they would prohibit which is not already caught by the concepts of harassment and intimidation? It can only be the expression of ideas. Yet the one thing a free society must never do is censor the expression of ideas.

Intimidation and harassment, by contrast, are not exercises of free speech. Rather, they are - and have always been acknowledged to be - species of unlawful conduct. The fact that that conduct might take the form of spoken or written words is beside the point. To intimidate another person - in other words, to threaten them or to cause them fear; to harass another person - in other words to vex, to annoy, to attack them - not to express an idea as an opinion. It is to intrude upon that other person's freedom itself. Such conduct has nothing to do with freedom of speech, and its prohibition is entirely justifiable both to protect freedom and to protect social order. That is why I have always believed that there is no inconsistency whatever between effective, appropriately-worded racial vilification laws, and the robust defence of freedom of speech. And that is the principled reason why the Government is moving to reform s. 18C: at the same time, to strengthen its anti-vilification provisions, and to remove its anti-free speech provisions - not inconsistent objectives, but complementary ones.

Section 18C

The Government considers that the section 18C, as it is currently drafted, has become an inappropriate barrier to people expressing their legitimate opinions.

The Government considers there is a clear conceptual distinction between conduct which merely affronts the feelings of a person, and conduct which threatens them. This Bill will clarify the conduct captured by section 18C by replacing the terms 'offend', 'insult' and 'humiliate' with 'harass'.

The inclusion of the term 'harass' will reflect the original recommendation of the 1991 National Inquiry into Racist Violence by the then Human Rights and Equal Opportunity Commission, which was that the Racial Discrimination Act be amended to 'prohibit racist harassment'.

The Bill will also specify that the standard against which alleged contraventions of section 18C are assessed is that of the reasonable member of the Australian community. This will ensure that the subjective sensitivities of particular groups do not make unlawful conduct which a reasonable member of the Australian community would not judge to be likely to harass or intimidate another person or group. The standard introduced by this Bill is a strong endorsement of the sensibilities of the Australian people. Ordinary and reasonable Australians, from all cultures and backgrounds, can, and do, recognise and reject racial prejudice.

The amendments to the Racial Discrimination Act will maintain protections against racial discrimination whilst ensuring that frank and open discussion and debate, however challenging, is not subject to unreasonable legal sanctions.

Complaints handling procedures

The Commission has an important and legitimate role to play in resolving complaints on unlawful discrimination. However, the Commission's complaints handling model does not operate as effectively as it should.

The Bill responds to recommendations of the PJCHR by amending the Australian Human Rights Commission Act 1986 to ensure that unmeritorious complaints are discouraged or dismissed at each stage of the complaints handling process.

The Bill introduces requirements for the Commission to act fairly in the course of inquiring into, and attempting to conciliate a complaint. This extends to offering reasonable assistance to both complainants and respondents. The Bill will also introduce an obligation for the President or the Commission to act expeditiously when dealing with complaints, and to use best endeavours to dispose of complaints within 12 months. These requirements will implement PJCHR recommendations 6, 7 and 8.

The Bill will require the President to notify all respondents to a complaint, and any person other than the respondent who is the subject of an adverse allegation in the complaint. These amendments are designed to overcome the situation which arose for the students at the Queensland University of Technology, who were first advised that they were the respondents to a complaint over a year after it had been made. The implements PJCHR recommendation 5.

The Bill will also raise the threshold for lodging a complaint of unlawful discrimination. At the moment a complaint can constitute as little as a bare allegation in writing that unlawful discrimination has occurred. It is an inefficient use of the Commission's time and resources to finalise such complaints. The amendments will require that a complaint specify the conduct alleged to be unlawful discrimination. It must also be reasonably arguable that this alleged conduct constitutes unlawful discrimination. This will implement PJCHR recommendation 9.

The Bill will provide a greater ability for the Commission to terminate unmeritorious complaints, including by introducing new mandatory and discretionary grounds upon which a complaint can be terminated by the President.

The President would also have discretion to terminate complaints lodged 6 months after the alleged unlawful discrimination took place—down from 12 months.

The President will also be required to consider whether to terminate a complaint before starting to inquire into the complaint, and the legislation will make clear that regard must be had to any relevant exemptions when considering whether a complaint constitutes unlawful discrimination. These requirements will implement PJCHR recommendations 12 to 16.

Unmeritorious complaints will also be discouraged with the introduction of provisions relating to costs, implementing PJCHR recommendation 19.

Amendments requested by the Commission

The Bill introduces a number of procedural amendments at the request of the Commission to aid its smooth operation. These include replacing mandatory reporting duties with discretion to report to the Minister in respect of: human rights inquiries; equal opportunity in employment inquiries; and statutory reports of the National Children's Commissioner and the Aboriginal and Torres Strait Islander Social Justice Commissioner. The amendments will also improve governance arrangements, ensure voluntary and compulsory conciliation conferences are regulated consistently and ensure that things said or done in conciliation proceedings are confidential. These amendments are designed to reduce the regulatory burden in complaints handling and limit the resources required to undertake mandatory reporting arrangements.

Conclusion

This Bill will make the necessary reforms to the Racial Discrimination Act to ensure that the appropriate balance is struck between strengthening protections against hateful speech based on race, colour or national or ethnic origin and enhancing freedom of speech. They will also amend the Commission's complaints handling processes to ensure that unmeritorious complaints are terminated and respondents are not put to great personal and financial cost.

CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2017

The Civil Law and Justice Legislation Amendment Bill is an omnibus Bill which would amend the Acts Interpretation Act1901, the Archives Act 1983, the Bankruptcy Act 1966, the Domicile Act 1982, the Evidence Act 1995, the Family Law Act1975, the International Arbitration Act 1974, the Legislation Act2003, the Marriage Act 1961, and the Sex Discrimination Act 1984. The Bill would make minor and technical amendments to modernise, simplify and clarify the legislation, and to repeal redundant provisions. The combined effect of these amendments would improve the efficiency and operation of the civil justice system.

The Government aims to make all Commonwealth legislation coherent, readable and accessible to the widest possible audience. To this end, this Bill would amend the Acts Interpretation Act and the Legislation Act to clarify the validity of Ministerial acts and the management of compilations of legislation on the Federal Register of Legislation.

The Government also aims to make Australia's archival record accessible to the broadest range of applicants possible. To this end, amendments to the Archives Act would assist the National Archives of Australia to appropriately manage requests for records from high volume applicants and make other minor and technical amendments to the Act. The proposed amendments would also simplify the interpretation of the Domicile Act by specifying within the Act the territories to which the Domicile Act applies. This would replace an existing specification of territories in the regulations, allowing that regulation to be repealed. The Bill would also amend the Evidence Act to align the timeframe for the presumed receipt of postal articles with current Australia Post delivery times.

The Bill also reflects the Government's commitment to maintain its place in the international legal environment by amending the International Arbitration Act to help ensure that Australian arbitral law and practice stay on the global cutting edge, so that Australia continues to gain ground as a competitive arbitration friendly jurisdiction.

Amendments to the Sex Discrimination Act would repeal obsolete provisions. The Bill would repeal the combat duties exemption in section 43 of the Sex Discrimination Act that allows discrimination against women in connection with employment, engagement or appointment in Australia Defence Force positions involving combat duties. The exemption is no longer necessary, as the Australian Government's policy to remove all gender restrictions from Australian Defence Force combat roles was fully implemented on 1 January 2016. Repealing this provision is consistent with Australia's intention to withdraw its related combat duties reservation to the Convention on the Elimination of All Forms of Discrimination Against Women.

Minor and technical amendments contained in the Bill would improve the operation of the Family Law Act by clarifying existing laws, simplifying processes, and remedying inconsistencies. The Bill would make amendments to provide the same rights to de facto and married couples, when instituting maintenance or property proceedings. The Bill would also amend the Family Law Act to clarify that admissibility provisions in the Evidence Act relating to evidence obtained in an improper or illegal manner apply to evidence of disclosures of child abuse in communications between family consultants and family law litigants.

The Bill would assist the operation of the Family Court of Australia in a number of ways. The Bill would amend the Family Law Act procedure for appointing members of the Family Court of Australia Rules Advisory Committee, to be consistent with the process for appointment of a similar committee advising the Chief Judge of the Federal Circuit Court of Australia. Other amendments to the Family Law Act would clarify the range of persons who may perform the powers of the Registry Managers in the Family Court of Australia and any other court. The Bankruptcy Act would also be amended to clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a binding financial agreement set aside under the Family Law Act.

The Bill would also make minor, technical amendments to the Marriage Act. Many of these amendments are aimed at improving the operation of the Marriage Celebrants Programme. These measures would enhance administrative efficiency by making improvements to the annual celebrant registration charge process. The Bill would also formalise an existing expectation that marriage celebrants comply with any disciplinary measure that may be imposed by the Registrar of Marriage Celebrants and clarify that the Register of Marriage Celebrants is the publicly available list published on the internet.

In addition, the Bill would provide that where State and Territory employees are appointed according to their position title to perform functions under the Marriage Act, they may be referred to on the Register by their position title rather than their name. Some definitions and terminology would be updated to ensure consistency with other legislation. The Bill would also clarify that certain instruments made under the Act are not legislative instruments, and remedy a defect in the legislation to remake provisions in relation to the Registrar of Overseas Marriages that were repealed in 2002.

In conclusion, the intention of the Bill is to make minor and technical amendments to a number of Acts to increase access to justice for all Australians by improving the operation and clarity of civil justice legislation. Significantly, the amendments contained within the Bill would improve the civil justice system by making it easier for individuals to understand and comply with the law.

The PRESIDENT: In accordance with standing order 111, further consideration of these bills is now adjourned to 9 May 2017.

Senator BRANDIS: I move:

That the bills be listed on the Notice Paper as separate orders of the day.

Question agreed to.