Does any senator wish to have that proposal put? There being no senator, I call the Attorney-General.
I am not seeking the—
I am sorry, Attorney-General, I thought you might be. Then, I call the Clerk and we will proceed to business.
Honourable senators interjecting—
Order! Senator Brandis.
Since no opposition senator apparently proposes to deal with item No. 4 on the red, I seek leave to move a motion to vary the hours of meeting and routine of business today.
Order! My understanding, Senator Brandis, was there was an arrangement and I could call upon you to speak. If we want to deal with another matter, I am open to what the Senate wants to do.
Can I just clarify so there is no confusion, a motion was passed by the Senate in the name Senator Pratt earlier in the week requiring me to be present in the Senate at 9.30 this morning so that 'a senator may ask the Attorney-General for an explanation of certain matters concerning the Bell issue'. No question was asked of me, so we are moving on.
Oh, come on!
Why were you selling the Commonwealth out?
Honourable senators interjecting—
Order! Can senators come to order so that we can deal with this matter efficiently? Last time when this approach was adopted it was agreed between the parties that the Attorney-General would be called upon by the President. I have done that. I called upon the Attorney-General, and now there seems to be some confusion as to the practice. If a senator wishes to stand and move a motion in relation to this, we can do it that way or I can simply call the Attorney-General.
Senator Brandis interjecting—
Correct. Senator Pratt, do you wish to move a motion?
I do. In accordance with motion No. 274 of 28 March, I seek an explanation from the Attorney-General on the matters outlined in that motion in relation to the nature and scope of any agreement reached by the Commonwealth and Western Australian governments in relation to the distribution of proceeds of the liquidation of and litigation concerning the Bell group of companies; the proceeds; and his failure to provide answers to questions to the committee and a valid public interest immunity claim.
I call the Attorney-General.
I am going to raise a point of order. Senator Pratt cannot move that motion without leave and she has not sought leave. There was a motion agreed to by the Senate earlier in the week which, relevantly provided by paragraph 4:
… The Senate requires that the Attorney-General be in the Senate at 9.30 am on Thursday 30 March 2017, so that a senator may ask the Attorney-General for an explanation in connection with his actions on this matter, and at the conclusion of the explanation any senator may move a motion to take note of explanation; or if the Attorney-General fails to provide an explanation any senator may move to take note of his failure to do so.
That is the operative part of the resolution. I was here at 9.30 and no opposition senator asked me a question. I am in a position to respond to any questions that may be asked of me. Senator Pratt has now raised an issue. I have not been asked a question.
Senator Pratt did actually ask a question. She did not actually move a motion. Can we just take it now that a question has been asked of the Attorney-General. I ask the Attorney-General if he wishes to respond.
Can I have the question again please, because I did not—
Seriously; the length this bloke goes to not answer question. It is amazing!
Order! Senator Pratt, would you please repeat the question.
If there appears to be a misunderstanding about this, I can ask a series of questions in accordance with the resolution, if that is allowed by the resolution that the Senate passed.
The Attorney-General would like to know the question. The Attorney-General is entitled to have the question. Would you like to repeat the question, Senator Pratt?
I have some questions before me. The Attorney-General has specifically refused to allow answers as to whether his office prepared a direction under the Judiciary Act, which would have prevented the Australian tax office from intervening in the Bell matter. Will the Attorney-General give us that answer now?
Senator Wong.
I just have a point of clarification, given we seem to have such difficulty in getting cooperation on this matter.
Senator Brandis interjecting—
If I may, I just want to be clear that the motion that has been agreed by the Senate will enable a question to be asked and an answer to be given, and then another question to be asked and another answer to be given. Because, if not—I do not want a point of order taken subsequently. I would like the senator to have the opportunity to put all of her questions, at this stage, on the record so that we do not have another jig to avoid having to answer.
Thank you. If I could maybe assist: the motion is that a senator may ask for an explanation in relation to all matters in relation to the subject material. I will take it that that question has been asked of the Attorney-General. At the conclusion of the Attorney-General's response, a motion may be moved to take note of that answer.
With respect, President, I do not believe that that is the most efficient way to deal with this. I would request that we should have a set of questions put on the record—if you would prefer to deal with them as a block as opposed to in sequence.
If the Senate is happy for a series of questions to be asked by Senator Pratt.
I have no objection.
The Leader of the Government in the Senate is saying he has no objection to a series of questions being asked. Do you want them asked all at once or are you happy to have question and answer?
All I want to do is comply with the requirement in paragraph (4) of the Senate's resolution. That requires me to be present here:
… so that a senator may ask the Attorney-General for an explanation in connection with his actions on this matter—
and so on. If Senator Pratt or any other senator wants to ask me a question then I am here to answer it. I do not have any particular objection as to whether it might be a more efficient of dealing with the matter for the questions all to be put so that they can be answered at once. I am merely seeking to comply with the terms of the Senate's resolution and the suggestion otherwise that I am seeking not to do is unfair and false.
Senator McKim, on the same matter?
Yes, I would just seek clarification from you, President, and potentially a ruling whether other senators are able to also ask Senator Brandis questions or is it just a single senator?
I will read the wording of the resolution. The key point is on page 18 of the today's Notice Paperat paragraph (4), and a portion of it states:
…so that a senator—
so I take that to be singular—
may ask the Attorney-General for an explanation in connection with his actions on this matter …
So, really, Senator Pratt, I think what we should entertain is you asking the Attorney-General for an explanation of this matter and then the Attorney-General shall respond, and then a senator may move a motion to take note of that response. Senator Hinch, on the same matter?
With regard to the 'a senator', other members of that committee want to ask the Attorney-General questions as well. So there is 'a senator' Senator Pratt and 'a senator' Senator McKim and 'a senator' Senator Hinch.
No, it is not in those terms. I will take a question from a senator, otherwise we could have 75 other questions. Senator Pratt, you are seeking an explanation. If you would like to make your question as comprehensive as you wish, but I will entertain the one question, and make it as comprehensive as you wish. Senator Wong.
Given that and given the crossbench's desire to ask questions, I would indicate that the opposition would give leave, should the rest of the Senate do so, for Senator Hinch or other crossbench members to also put a question to the Attorney-General.
That is up to the Senate if that occurs at a later junction. Senator Pratt, would you like to ask your question now seeking that explanation?
I seek an explanation from the Attorney-General on the following matters. The Attorney-General has specifically refused to allow answers as to whether his office prepared a direction under the Judiciary Act, which would have prevented the Australian tax office from intervening in the Bell matter. Will the Attorney-General give us that answer now? Secondly, does the Attorney-General believe that he is above the rules of the Senate which specify legal privilege is not on its own a basis for refusing to answer questions in a Senate committee? Why has the Attorney-General not complied with the Senate's request to provide a legitimate basis for a public interest immunity claim? I note that in his response to the Senate tabled on 23 March, the Attorney-General stated:
Thus, whether or not the Senate has accepted that matters pertaining to confidential legal advice to government are always and in all circumstances immune from disclosure is neither here nor there. The fact is that, in general, such matters are not disclosed.
Can the Attorney-General explain to the Senate why he believes that what the Senate accepts or asks for is 'neither here nor there'? The report tabled yesterday by the Legal and Constitutional Affairs References Committee required that the Attorney-General provide to the committee a statement of the grounds for concluding that it would not be in the public interest to disclose the information specifying the harm to the public interest that would result from the disclosure of the information of the documents. Will the Attorney-General comply with the committee's requirement?
On what basis does the Attorney-General believe that there would be a harm to the administration of justice, given that the litigation has now ended and there is no risk of compromising that litigation? The Attorney-General would be aware of evidence given before the committee on Monday, 27 March, that the Australian tax office was so worried that the Attorney-General was about to issue a direction that they sought legal advice and made the tax commissioner, Chris Jordan, aware of those plans. Why didn't the Attorney-General's office disabuse them of this notion if he had no such plans? Why did the Attorney-General say to Andrew Mills on 7 March that he was not going to issue a direction unprompted? That would suggest the Attorney-General was actually considering doing so. Will the Attorney-General now tell the truth? Was he planning to issue a direction to stop the tax office from intervening?
Let me deal with those questions.
Just before you do so, Senator Brandis; Senator Pratt, could we have a copy of those questions at the table? That would be beneficial.
I made a note of what Senator Pratt has asked. In answer to question No. 1: that matter has been dealt with on several occasions. I might remind the Senate that this issue has been the subject of questions at estimates, at a spillover estimates day and at the Senate references committee. On each occasion, the response has been that this question goes to legal advice and, therefore, consistent with the uniform practice of all Australian governments, it will not be provided for that reason on the ground of public interest immunity.
On question No. 2: no, Senator Pratt. I believe that I am obliged to comply with the same constitutional convention that every Australian Attorney-General and, indeed, minister has complied with in relation to protecting legal advice provided to the Commonwealth.
In relation to question No. 3, contrary to what is asserted in the question, a public interest immunity claim was fully articulated in response to the questions, and I table a copy of the public interest immunity claim as articulated. The requirement of Odgers', which is one point of view about this, and not the only point of view, is that a public interest immunity claim be fully articulated. It has been, and the document I have tabled you have seen before because it is in the form of the answers provided in articulating the public interest immunity claim.
In response to your fourth question, Senator Pratt, it is not a question of whether orders of the Senate were neither here nor there. The question is what my obligations are, as a minister and as an Attorney, to protect the position of the Commonwealth in relation to its legal advice, and that is explained and set out in the answers that were given, which are embodied in the document I have just tabled.
In answer to your fifth question, the requirement to provide a statement was complied with, so the assertion in your question is incorrect. But, nevertheless, out of courtesy to the Senate I have tabled, once again, the grounds of the public interest immunity claim—a claim, by the way, taken on advice.
The answer to your sixth question is explained in the document that has just been tabled and was explained in the written answer provided to the question when it was taken on notice. All other matters which you raise have been dealt with by me already in evidence before either the references committee or the estimates committee or in the instrument which I have tabled.
Thank you, Attorney-General. Senator Pratt, do you wish to move a motion? Are people seeking leave to ask questions of the Attorney-General? I will go to Senator Hinch first.
I seek leave to ask a question of the Attorney-General.
Leave granted.
In your comments and explanations to the Senate on 28 November, you said, in part, when talking about the Solicitor-General, Mr Gleeson:
After I indicated that I did not intend to intervene in the proceedings on behalf of the Commonwealth, I was contacted by the Solicitor-General, Mr Gleeson. He gave me certain advice.
You invoked privilege on that, understandably. You then said:
It is sufficient to say that Mr Gleeson was strongly of the view that the Commonwealth should intervene, … I saw the force of what Mr Gleeson put to me and I accepted his advice.
He obviously told you that he was the Solicitor-General and was representing the ATO at the time. Was it after he put this forceful argument that you decided to issue the directive, just before the election, that all matters for all ministers and all departments had to in future come through you?
No, Senator. I have answered that question before. I assume you are referring to the legal services direction. The decision to issue the legal services direction was not causally related to that matter.
I seek leave to ask some questions of the Attorney.
Leave granted.
Firstly, Attorney, are you aware that the ATO sought legal advice on their position should you issue a direction that they not intervene in the Bell matter in the High Court? When did you become aware of this? What, if anything, did you or any of your staff do after you became aware of that? Secondly, do you agree that the precedent of this Senate is that the fact that legal advice might be considered privileged by government or by a minister does not automatically mean that it satisfies the public interest immunity requirements that have been established in the past by this chamber? Thirdly, are you seriously walking away from Odgers' in here today? Do you regard it as a fire starter to get your kindling going, or do you accord it anything higher than simply being one opinion on how this Senate works? If you do, what other body of work do you rely on to give advice to the senators in this place and to the chamber as a whole about how the Senate operates?
Senator McKim, you have asked me about my or my officers' knowledge of certain matters at certain times. Obviously, I will have to take that on notice. In relation to the position of invoking a public interest immunity claim in respect of legal advice, that, as I pointed out in my answer to Senator Pratt, is the invariable position of all Australian governments, and it has been since Federation, and in the written answers to questions that I took on notice in the references committee, which I have tabled again this morning, the various precedents quoting the views of attorneys-general from both sides of politics are set out. They are merely a sample of those views. It is an absolutely fundamental position that the Commonwealth does not publicly disclose its legal advice and that that is a recognised ground of public interest immunity.
In relation to your third question about the standing of Odgers' Australian Senate Practice, Odgers' is a practice book which provides guidance about the practice and precedents of the Senate. The view it takes of certain matters concerning the relationship between the Senate and the executive government, of which this is one, is not, and has often not been, shared by the executive government. To the extent to which Odgers' asserts that the executive government has certain obligations in the Senate in relation to the disclosure of legal advice, that is inconsistent with the unvaried practice of all Australian governments since Federation.
I seek leave to ask just one more question of the Attorney-General.
Leave granted.
Mr Attorney-General, after the ATO heard the bureaucratic whispers that you were about to issue a directive to overrule them and the High Court, did Mr Mills from the ATO approach you or your department and say—I am paraphrasing—'The Solicitor-General was already our legal representative in the High Court and it really has nothing to do with you'?
I do not know if Mr Mills spoke to anyone in my department and, if he did, I do not know whether he said that or not. I had a conversation with Mr Mills during the course of which he did not say the words that you have just said. What you have to understand, Senator Hinch—I think you do understand—is that no directive of the kind you refer to was ever issued. No directive of the kind you refer to was ever issued.
I seek leave to ask the Attorney-General three questions.
Leave granted.
My first question relates to evidence that we have taken at this inquiry already, which is that the Attorney-General did not personally prepare a direction to stop the ATO from intervening in this case, but we know that the Attorney-General has refused to answer whether his office prepared a direction to prevent the ATO intervening. My first question is: doesn't this cause an inference that his office did request such a direction to be prepared? My second question asks the Attorney-General for his response to the evidence from senior Australian tax office officials this week that the prospect of a direction being issued against them by the Attorney-General or his office was discussed between the Australian tax office, Treasury and the Australian Government Solicitor. My third question to the Attorney-General is for him to advise when the last time was that a Commonwealth minister had to be hauled before the full Senate to stop avoiding answering questions.
Senator Watt, the answer to your first question is no. The answer to your second question—and I will make the perilous assumption that you have given an accurate paraphrase of evidence which I have not read—
Opposition senators interjecting—
On my left!
If there were discussions between the ATO, Treasury and the Australian Government Solicitor, then, plainly, they were not discussions that involved either me or my office—
About your office preparing the direction.
You said: 'Were there discussions between the Australian Taxation Office, Treasury and the Australian Government Solicitor?' If there were such discussions, I am not aware of them and they did not involve my office. And you say the conversations to which you refer were about the prospect of a direction. No such direction was ever issued.
But it was drafted.
Order! You have answered the question.
You did not answer the third question.
You did not answer it.
Order! Attorney-General.
Ministers are always answerable to the Senate. That is why I am answering your questions.
I move:
That the Senate take note of Senator Brandis's answers.
In doing so, I note that the fact that certain information is provided to the government as legal advice is not sufficient in this chamber to satisfy a claim of public interest immunity. In relation to claims of legal professional privilege, as Senator Brandis has made, the 14th edition of Odgers' Australian Senate Practice states:
It has never been accepted in the Senate, nor in any comparable representative assembly, that legal professional privilege provides a ground for a refusal of information in a parliamentary forum ... It must be established that there is some particular harm to be apprehended by the disclosure of the information, such as prejudice to pending legal proceedings or to the Commonwealth's position in those proceedings.
According to the advice received by the Legal and Constitutional Affairs References Committee, the existence of legal professional privilege may lend weight to a public interest immunity claim, but any such claim must nonetheless be raised on an accepted ground and accompanied by a statement of the harm to be apprehended from the disclosure of the information sought, and that is that the harm specified should relate to the matter at hand. What is the harm to the public interest in relation to this matter specifically, not in relation to general disclosure of legal advice? What is the harm to the public interest in relation to the Bell matter that would occur from the disclosure of the information sought?
As I outlined in my questions, in his response to the Senate, tabled on 23 March, the Attorney-General showed absolute disregard for the standing orders of this place when he stated: 'Thus, whether or not the Senate has accepted that matters pertaining to confidential legal advice to government are always and in all circumstances immune from disclosure is neither here nor there.' That is blatant disregard for the standing orders of this place. He went on to say: 'The fact is that, in general, such matters are not disclosed.' That is not a proper reflection of his obligation to the Senate. It is important that the Attorney-General is able to explain his actions and he has failed to do so adequately today. It really demonstrates that he believes he is above the rules of the Senate which specify that legal privilege is not in and of itself a basis for refusing answers to Senate committees or, indeed, for refusing answers in this place.
So the question before us today is why the Attorney-General has not complied with the Senate's request to provide the basis for his public interest immunity claims. It needs to be a legitimate basis. The substantive nature of the public interest immunity claim made by Senator Brandis does not meet the threshold tests required by this chamber. The report tabled by the committee yesterday required the Attorney-General to provide the committee with a statement of the grounds for concluding that it would not be in the public interest to disclose this information, specifying the harm to the public interest. There has been no recognition within the Attorney-General's answers that goes to that point. No harm to the public interest has been specified that would demonstrate that there is a harm to the administration of justice, given that the litigation in this matter has now ended and there is no risk of compromising that litigation.
On that note, why the Attorney-General has specifically refused to allow answers as to whether his office prepared a direction, under the Judiciary Act, that would have prevented the Australian tax office from intervening in this matter has not been answered. The Attorney-General, again, was aware of evidence given before the Senate committee on 27 March that the tax office was so worried that the Attorney-General was about to issue such a direction that they indeed sought legal advice and made the tax commissioner, Chris Jordan, aware of those plans. It is very clear that the Attorney-General did not make any efforts to disabuse them of that notion, because it is clear that he had such plans, and he has made no explanation to the Senate regarding those plans. On that basis, why did the Attorney-General say to Andrew Mills on 7 March that he was not going to issue a direction unprompted? Indeed, that suggests that the Attorney-General was considering doing so. Why won't the Attorney-General tell the truth on that matter? He was indeed planning to issue a direction to stop the Australian tax office from intervening.
Right through this sorry saga the Attorney-General's behaviour has been rife with evasion, with obfuscation, with delay and in fact with arrogance. He has arrogantly refused to answer questions, he has arrogantly failed to respond to questions on notice within the time frame set by the Legal and Constitutional Affairs References Committee, and that arrogance has been topped off today by the Attorney-General telling the Senate that he knows better than that massive body of work, put together by a rank of experts in Senate practice, contained in Odgers'. I want to be clear about this: I have seen strongmen rip up phone books in my time, but to see an Attorney-General come in here and basically rip up Odgers' this morning is something I never thought I would see.
I want to say to the Attorney that my experience in parliaments is that when a stoush emerges or differences emerge between parliaments and executive governments, parliaments tend to win. When you think about it, that is logical, because it is executive government that flows from parliament, not the other way around. The pre-eminent institution in our democracy is this parliament. It is not the cabinet, it is not the office of the Prime Minister and it is certainly not the office of the Attorney-General. We are debating right now in the pre-eminent institution of our democracy, the Commonwealth Parliament of Australia, and what we say goes, not what the Attorney-General, Senator Brandis, says.
I want to address now the issue of legal privilege. The first point to make is the obvious point that the Attorney-General has continually missed in this debate—that is, that legal privilege is his to waive. Governments right through Australia's history have from time to time chosen to waive legal privilege and provide matters that otherwise would have been covered by legal privilege, because it was in their political interests to do so. I have seen it on many occasions, both in the Tasmanian parliament and, before I was a senator in this place, through the media in relation to governments at a national level in this country. Make no mistake: the Attorney-General could right now waive legal privilege and provide the information that the Senate is asking for. The fact that he is not doing that shows that he has something to hide here. It is not good enough to him to rely on what he describes as a 'lengthy precedent of governments of all stripes in this country'. The Attorney could waive legal privilege, if he wanted to, and he could provide that advice to the Senate right now. It is his gift to give, but he is not giving the gift, presumably because he has something to hide. This is why we need to see the advice that this motion or the motion previously passed by the Senate refers to.
The second point to make—and this the question I put to the Attorney that he did not go to in his answer—is that clearly the precedent of this Senate is not to accept a simple claim of legal privilege as grounds for a successful claim of public interest immunity. That is the long precedent of this place. We need from the Attorney a proper claim of public interest immunity that outlines in detail the public harm that he claims would flow from releasing the legal advice. That is certainly what the Australian Greens expect from the Attorney-General.
The third point to make, and I go to the specific matter of the Attorney's awareness of the ATO's decision to seek legal advice on what their position would be, is should the Attorney issue a direction that the ATO not intervene in the Bell Group matter in the High Court. He has taken that on notice, and I hope that he does a better job of meeting the requirements of matters on notice than has been his unfortunate track record in the past, where we have seen many dozens of failures from this Attorney to respond within the appropriate time frames to questions put on notice.
It is important that we all understand that the ATO heard what they described as bureaucratic whispers that the Attorney was considering issuing a direction that the ATO not intervene in the Bell Group matter in the High Court. So clearly this was the discussion at senior levels of the Commonwealth bureaucracy—and so it should have been, because it would have been almost unprecedented had the Attorney decided to issue a direction to effectively prevent the ATO from maximising its opportunities to recover the moneys it believed were owed to Commonwealth coffers as a result of the matters in Western Australia, with the winding up of the Bell group of companies.
We need to know what the Attorney knew and when—and when I say 'the Attorney' I include all of his staff. I have been a minister in the Tasmanian government, and we all know what your staff do is in effect what you do. When a staff member tells someone something, it is as if the minister told them himself or herself. So we need to know what the Attorney and his staff knew about the ATO seeking legal advice on their position should the Attorney have directed them not to intervene, when he became aware of it, and what happened either in his office or from his office out into any part of the bureaucracy in this country, including the Solicitor-General's office, once he became aware of that fact.
What a humiliating morning for the Attorney-General of Australia. This man is so determined to hide evidence from the Senate and Senate inquiries that he has to be hauled before the full Senate and be asked questions that he will not answer when put to him by a committee set up to inquire into this issue. I cannot remember the last time I saw a minister, whether in a state parliament or the federal parliament, having to be dragged before the full chamber in order to get them to stop hiding information that is reasonably sought by a committee. You can only wonder what Senator Brandis's colleagues must think of the amount of time that is being expended in defending his incompetence, his secrecy and his deception. This is a government that is struggling desperately to get clear air to do something positive for this country. We are told that we are going to sit into the night tonight to try to get legislation through which they say is necessary for the future of this country, but yet again Senator Brandis's incompetence and deception is causing the Senate to divert time to ask him very reasonable questions about his practice and that of his office.
This is yet another example of the lengths of deception that this Attorney-General is prepared to go to to prevent the truth getting out about his involvement in very serious matters under his portfolio. It was not that long ago that we had to establish a Senate inquiry into his behaviour in relation to the former Solicitor-General of Australia and we had very clear evidence from numerous senior officials in this government, from the Solicitor-General down, that the Attorney-General had clearly taken action against the Solicitor-General as retribution for the Solicitor-General's desire to maintain some level of independence around the advice that he had given. We have seen the Attorney-General deceive the Senate previously about his role with the Solicitor-General—
The Attorney-General, on a point of order?
That statement is plainly unparliamentary. It reflects upon me.
It would assist the Senate, Senator Watt, if you withdrew that statement.
The accusation that the senator is deceiving the Senate?
That is correct. It is unparliamentary.
Okay. The—
Did you actually withdraw?
I withdraw. We have also seen the lengths that this Attorney-General will go to to prevent access to his diary. He has hidden his diary from the Australian public over a period of about three years, and it was not until we obtained orders from the Administrative Appeals Tribunal, backed up by the Full Court of the Federal Court of Australia, that this Attorney-General finally complied with the law and produced his diary, as he had been requested to three years ago, and now in this inquiry into the Bell Group litigation and the Attorney-General's involvement in that we see repeatedly the Attorney-General make dubious uses of public interest immunities to prevent the Senate obtaining answers to legitimate questions about the role of him and his office. The Attorney-General is supposed to be the first law officer of this country—
'Is supposed to be'?
He is supposed to be, Senator Cash. The Attorney-General is supposed to be someone who is beyond reproach in their administration of justice of justice but, instead, in Senator Brandis we have someone who will go to extraordinary lengths to prevent the Senate from getting the truth and from getting basic information about how he has conducted himself in this role.
To briefly recap what we have ascertained so far over the course of this inquiry, this really involves the apparent deal between the federal government and the Western Australian government to turn a blind eye to over $300 billion in taxes that were owed by the Bell group of companies to the Australian taxpayer. It does seem clear that the former Treasurer, Joe Hockey, did reach some sort of a deal with the Western Australian government to forgive the payment of those taxes, but Senator Brandis's involvement in this matter more concerned the attempts that were made to pressure the Australian Taxation Office to not pursue those taxes in our courts. We will all remember the statement from the Attorney-General in late November last year when he told the Senate that his first personal involvement in this case was on 3 March 2016, and of course before too long he had one of his own Liberal counterparts, the former Western Australian Attorney-General, come out publicly and say that that was not correct and that he had actually spoken to Senator Brandis in early February. Senator Brandis had one of his now infamous memory losses. He does not recall that conversation and maintains this ridiculous fiction that having a conversation with an Attorney-General from Western Australia does not amount to personal involvement in the matter.
What the inquiry has turned to more recently is the apparent efforts by Senator Brandis, or his office on his behalf, to nobble the Australian tax office and to prevent them from taking legal action to try to recover over $300 million in unpaid taxes owed to the Commonwealth taxpayer. Most Australian taxpayers would want to make sure that companies who owe taxes repay those taxes and do the right thing, and they would expect the Australian tax office to pursue those taxes on their behalf. But what we have uncovered over the course of this inquiry is an apparent attempt by the Attorney-General or his office to prevent the Australian tax office from doing its job. Even today, those who have been listening to Senator Brandis will have noted his slippery use of language to yet again try to evade responsibility in this matter. What he has told the Senate again today is that no direction was issued to the Australian tax office to prevent them from taking action. That is not the subject of the questions that have been asked. What has been asked is: what directions were drafted by his office, or what action did his office take to try to prepare a direction, to stop the Australian tax office from taking action?
In an earlier hearing in this inquiry, we asked whether the Attorney-General himself directed the tax office, or prepared a direction to the tax office, to stop them from interfering in this case. We were told very clearly by the Attorney-General's Department that the Attorney-General had not done so. But, when we went on to ask whether the Attorney-General's office had prepared a direction to stop the ATO from doing its job, or had asked the Attorney-General's Department to prepare such a direction, we were not told the answer to that one. Privilege was claimed. A public interest immunity was claimed. And we are now told by the Attorney-General that it is against the public interest to reveal whether his office directed the ATO or attempted to direct the ATO from interfering in this case.
What I cannot understand is why it does not constitute legal advice and it is not privileged information to tell the Senate that the Attorney-General did not direct the ATO, or did not seek to prevent the ATO, but, when we want to ask questions about what the Attorney-General's office has done, all of a sudden the walls of privilege go up. There is a clear inconsistency and a clear double standard that is being used by the Attorney-General and his department to try to hide the involvement of the Attorney-General's office in this matter.
This week we received clear evidence from the Australian tax office. We asked them again whether they had become aware of any discussions about the prospect of a direction being issued. What they advised the Senate inquiry was that senior Australian tax office officials were aware of discussions and were party to discussions with officers from Treasury and the Australian Government Solicitor about attempts being made by the Attorney-General's office to prevent them from interfering in this case.
Everyone accepts that ultimately no direction was issued, and I suspect that is due to the efforts of the Australian tax office in fighting back against Senator Brandis and his attempts to nobble this case. But what we now have is clear evidence on the record where senior officers of the Australian tax office have said that they were having discussions with their counterparts in Treasury and the Australian Government Solicitor about efforts that were being made to stop them from interfering in this case.
It is about time that the Attorney-General finally came clean with the Senate. He is the first law officer of this country. He is supposed to be beyond reproach. He is supposed to be someone who is just quietly doing his job rather than distracting the government from their agenda. But, time after time after time, we have to spend the Senate's time trying to get answers out of this Attorney-General, and, in the process, he goes on to embarrass all of his colleagues and the government as a whole. The Attorney-General should just answer clearly today whether his office requested that a direction be drafted to prevent the Australian tax office from interfering in this case, and then these questions would cease.
I want to indicate a view that I perhaps can hold more than anyone else, because I have been in this parliament more than anyone else. I just say that Senator Brandis is probably the best Attorney-General I have ever experienced in this chamber. Senator Brandis is a longstanding colleague of mine—not a particular friend, I might say, but a longstanding colleague. I have known him over a long period of time. His knowledge of the law is impeccable. His attention to precision and detail is without peer in this chamber and in any Attorney that I have seen here in the 27 years I have been here. I have seen a few, and there have been some good ones—none of the Labor ones, I might say, but there have been some very good attorneys-general from the coalition. Senator Brandis is as good as, if not better than, all of them.
I wonder why these farcical inquiries keep being held by the Labor Party and the Greens. That is all they are. They are not Senate inquiries; they are simply Labor Party and Greens inquiries. I keep wondering why they do it. It is pretty obvious that if you want to attack someone, if you want to bring someone down, you do not do that to the worst-performing minister in the parliament; you do it to the best, the one that causes you most trouble, the one that has an accurate answer to every allegation levelled against the government in his role both as Leader of the Government in the Senate and as Attorney-General.
When you keep trying and can never ever get a kink in the armour, it sets the Labor Party and the Greens up further. They keep holding these Labor Party and Greens inquiries—not, I emphasise, Senate inquiries, because more often than not these inquiries set up by the Labor Party and the Greens are held at times when they know government senators will not be available. So they are not Senate reports—they are not Senate inquiries—they are simply reports and inquiries of the Labor Party and the Greens, who keep—
Senator Hinch, a point of order?
A point of order, Mr Acting Deputy President: I am not a member of the Labor Party but I am a member of this committee, and I object to the senator's comments.
That is not a point of order, Senator Hinch.
Senator Hinch is a participating member, as is every other senator. He is not a full member of the committee. I repeat that this and several other committees are committees that have been set up by the Labor Party and the Greens. Instead of spending moneys of the Labor Party and the Greens to do these political exercises they use the money of the Senate.
Every one of these dodgy so-called inquiries that have been brought relating to the Attorney-General have achieved absolutely nothing. I heard someone mentioned inquiry into the Solicitor-General. We all know the result of that. Senator Brandis came out unscathed and unblemished, with not a chink taken out of anything he had said in that whole debate. But the Solicitor-General, I have to say, did the right thing and resided during the course of the hearing, because the Solicitor-General knew that his conduct as an officer of the government—dealing with secret information to a member of the opposition—was untenable. I did not know the Solicitor-General—I do not think I ever had anything to do with him—but I thought his conduct was particularly improper and that he did the right thing by resigning. I only raise that to say that the Labor Party and the Greens keep running these political inquiries because they want to attack the person who is most valuable to the government and is the one who causes most grief to the Labor Party and the Greens.
I do not want to embarrass Senator Brandis, who is in the chamber now, but I repeat, I have known Senator Brandis for a long time. He is not a particular friend of mine, but I have the greatest admiration for his ability—
Honourable senators interjecting—
Order! Senator Macdonald has the right to be heard in silence.
I have the greatest regard for his ability, his integrity and his grasp of the law. I cannot understand the Labor Party and the Greens. I think these things are brought by people perhaps who wanted to be lawyers, who could never make a go in private practice, who became ambulance chasers, who tried to get into state parliament, were there for a little time and were then thrown out by the electorate. Perhaps it is these sorts of people who want to make a mark in the law that they were never able to do in real life, out there. All of these inquiries have been as wasteful of Senate resources and of Senate time as this inquiry was.
Nobody—not the public, not even the media, who will at even the whiff of some real drama happening be there with a full page—is interested in this hearing. This is a hearing about Labor incorporated. Remember 20 years ago when Labor got together with big business and rorted the Western Australian public? Remember that? That is what this inquiry is about. Twenty years ago, the Labor Party and big business—
Senator Farrell interjecting—
I am sorry. I beg your pardon, Senator Farrell. I stand corrected. It was not 20—I will take your interjection—it was 30 years ago. That is how long ago this was. Can you believe it? Can you believe the Senate is spending any time on rehashing one of the darkest periods in Labor Party history, and there have been plenty of dark ones with the Labor Party, I tell you. The darkest period in Labor Party history in Western Australia and, by implication, federally was when the Labor Party got into bed with crooks who cheated Western Australians out of a lot of money. That is the genesis of this inquiry. I cannot believe that the Labor Party would want to rehash this, that it would want to remind the Australian public of the dishonesty, of the criminality, of the Labor Party in Western Australia 30 years ago. You might remember that—was it one or two?—Labor premiers went to jail over this incident.
Remember Brian Burke?
Brian Burke? I thought there might have been another Premier or a minister. These were Labor Party politicians who went to jail. They were crooks, yet the Labor Party and the Greens in this chamber want to remind us about that. That I cannot understand.
I do not have the detail as well as the Attorney has, but he has repeated it so often to this chamber that even I can have an understanding of some of the issues. It was all about WA Inc., where money was owing. There was a liquidation. The liquidation had gone on for 20 or 30 years. Some lawyers had been paid small fortunes—millions of dollars—in dealing with the distribution of the few assets that remain from some of the WA Inc. companies. The Western Australian government was trying to make sure that the maximum amount available could be paid to creditors 30 years later. That is what the Western Australian government was doing. At one stage, the Commonwealth became involved because the tax office was involved. The evidence clearly shows, you do not need me to repeat it and you do not need Senator Brandis to repeat it again—the evidence is there, it is in the Hansard of the committee hearings that I have read—that the tax office went ahead and did what it was going to do. The suggestion that somehow the Commonwealth was going to miss out on money is just so ludicrous. I cannot understand the Labor Party except if you come back to my original premise that it is this constant attack on Senator Brandis, who, as I say, is one of the best attorneys-general I have seen in this parliament in the 27 years I have been here. He is a man with impeccable legal knowledge, a man whose precision and detail are beyond reproach. And you have these amateurs from the Labor Party and the Greens thinking they will make their mark in life by trying to find a chink in his armour—people who failed in state parliaments, failed in Tasmania, failed in Queensland. They could never make their way there, and they hope that they can do something in this chamber by raising these issues.
I appreciate there are a lot more important things to be discussing today, and the Senate really should get on and do them. We have had this farce this morning of the Senate taking a lot of time—and I apologise to the Senate clerks. Obviously the Labor Party has imposed on the Senate clerks to write out all these questions to ask and these motions to put. It was wasting the time of the Senate clerks, of the Senate committees area, to put up this series of questions, which I listened to earlier. Senator Brandis has answered every single one of them—I might say for about the third or fourth time.
The issue has come up about the parliamentary privilege of legal advice. That is an uncontestable proposition. As the Attorney has said, as anyone who has been around parliament for a long while knows, you cannot run a government if the legal advice is made public. That is something that governments since 1901 have been adopting. It is something that governments around the world do. It is uncontroversial. It is not contestable. And yet we have spent so much time here today arguing about this.
As I say, there are more important things to be dealt with. I just felt compelled to enter the debate when I heard the previous speakers carrying on about things they clearly know nothing about. They are desperate to try and find a chink in the armour. They are desperate to try and bring down one of the government's better performers. All of this continues on. This is the third, fourth or fifth inquiry now and, as I say, Senator Brandis has come out of each one of them not only looking and smelling like roses but actually being a rose. Why the Labor Party and the Greens continue to waste the Senate's time on this I simply cannot understand. I should be encouraging them to continue, because they keep making fools of themselves. They keep looking like spoilt little children who cannot become king of the kids. They take on all of these quite ridiculous inquiries at the taxpayers' expense.
I repeat, in case it has escaped anyone's attention: these so-called inquiries are not Senate inquiries. They are inquiries set up by the majority Greens and Labor. They are manned by the majority Greens and Labor. Most of the hearings are held when the majority know that government members cannot be available because we are involved in other—
Oh, what a load of rot! They are Senate inquiries.
Ignore the interjections, Senator Macdonald.
How can it be a Senate inquiry when it is Labor and Greens? They are set down when Labor Party and Greens members know that government senators are elsewhere, on other inquiries. They have been told time and time again that government senators have other committees that they are precommitted to, and the hearings are still set down. So you have three Labor senators and a Greens senator as voting members on these committees, and no government senator. How can they possibly be classed as Senate inquiries, when they are nothing more than a political game being carried on by the Labor Party and the Greens political party, using Senate resources and the taxpayers' money? It is a disgrace.
I conclude by again congratulating Senator Brandis on the work he has done. I thank him for what he has done for Australia as the Leader of the Government in the Senate and as one of the best Attorney-Generals I have seen in my long term here. I again wish Senator Brandis continuing success—as I know he will have—in his role leading the government in this chamber and as Attorney-General of our nation.
It is very interesting to see Senator Macdonald there saying that all this debate this morning is a total waste of time and then spend 16 minutes going on about it. I can tell Senator Macdonald, through the chair, that I am not part of a Labor-led witch-hunt against the Attorney-General and I have no desire to ever be a lawyer—I never have had, even though I have spent a lot of time in courts.
Some senators and, more importantly, the Australian public may wonder why there have been so many hearings by the Legal and Constitutional Affairs References Committee into all of this, because, as you well point out, Senator, this is about Bond and Bell and it happened 25 to 30 years ago. But there are two points I want to make here. We had Joe Hockey, the then Treasurer, making a deal with the Western Australian government to divert $300 million—which should have gone to the Australian taxpayer through the ATO, through the Commonwealth—back to the Western Australian government, which would deprive other small creditors. WA would get the $300 million and other creditors would not. Especially, the ATO, the Commonwealth, would not get it. They dudded the small creditors out in WA. They dudded the Commonwealth. That is one point.
The second point—and why it is important—is that I believe that this is what led to the directive by the Attorney-General, as a spin-off last year, to make himself the gatekeeper of all legal issues, so all ministers, all departments, had to go through him. On that occasion we had the then Solicitor-General, Mr Gleeson, eventually resigning. I mentioned earlier that forceful argument that they had about Mr Gleeson, the then Solicitor-General, being before the High Court as the ATO's lawyer at the time. I will not be taking up the 20 minutes on this. I made my point earlier. I make it again. I just want to stress to Senator Macdonald, through the chair, that I am not part of some Labor-Greens cabal in all of this. I am a participating member of the committee, and I do not regret a minute of it.
I rise to speak—and close the debate, I expect—on the motion that the Senate take note of my explanation. And I will expand upon that explanation.
I have never seen such a farce made of Senate procedure in the 17 years I have been here as I have seen this morning. After lengthy questioning at Senate estimates on both the principal hearing day and the spillover day, after two hearings of a references committee where the Labor Party and the Greens got absolutely nowhere, they seek now to try and revive this flogged, dead horse of an issue on the last morning of sittings. I am going to use my time to address a couple of the issues of fact in relation to the Bell litigation, and, secondly—
Senator O'Neill interjecting—
if you would have the courtesy to hear me in silence, please, Senator O'Neill—elaborate upon the grounds of public interest immunity which I felt compelled to take in discharge of my duties to the Commonwealth, on advice.
Let us talk about the Bell litigation. Mr Acting Deputy President Whish-Wilson, indulge me, if you will, for a moment. The Prime Minister described the Bell litigation as the Jarndyce and Jarndyce of Australian law. Jarndyce and Jarndyce, for those unfamiliar with it, is the fictional suit which was the subject of Charles Dickens's novel Bleak House. This is how Charles Dickens described Jarndyce and Jarndyce:
Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.
That is an apt description of the Bell litigation. There are very few of the directors still alive who were parties to the commercial transactions in the 1970s and 1980s that led to the Bell group of companies being put into liquidation some 30 years ago. And, like the young child who was promised a rocking horse when Jarndyce and Jarndyce should be settled, there is a man who began his legal career working on the Bell litigation as an articled law clerk in Perth who now sits on the High Court, so long has the Bell litigation proceeded.
What the former Western Australian government, with the support of the Labor Party in the Western Australian parliament—
And the Greens.
and with the support of the Greens in the Western Australian parliament, tried to do was to bring the matter to an end by an all-up statutory settlement. That statutory settlement was the subject of the High Court proceedings of which we have heard so much. But the first thing to remember about this is that this was a nonpartisan attempt to bring to an end more than 30 years of seemingly endless litigation on which, according to some estimates, almost half a billion dollars of lawyers' fees, liquidators' fees and insolvency practitioners' fees had already been wasted. So the motive was pure.
It is said by Senator Watt and others that Mr Hockey entered into a deal with the Western Australian government in relation to the High Court proceedings. That is false. The evidence before the references committee could not have been clearer. Senator Watt himself asked the question about an arrangement having been struck, and Mr Mills from the Australian Taxation Office said this:
I might correct the record. The letters actually do not show that there was any arrangement.
He went on to say—Mr Mills, that is:
From all that we could read from the Treasurer's letter back to the Western Australian Treasurer … we were not compromised in any way in terms of what we believed was the action we should take.
Let me say that again. Mr Mills, the second commissioner of Taxation, said:
… we were not compromised in any way in terms of what we believed was the action we should take.
Now, Senator Watt knew that that evidence had been given before the Senate committee because he was the senator asking the questions, and yet he represented to the Senate this morning the opposite, that there was a deal, when he knew the only evidence was that there was not a deal. People can draw their own conclusions about Senator Watt's honesty, and we can be very satisfied that Mr Hockey has nothing to answer.
Secondly, the suggestion was made by Senator Watt and others that I had in some way interfered with the Australian Taxation Office. This was the evidence before the Senate committee, first of all from Mr Chris Jordan, the Commissioner of Taxation:
No-one sought to inappropriately or otherwise persuade us to discontinue from that view. … Whether or not people were having discussions outside of us, no-one ever sought to inappropriately influence the course of action that we had, continued and did.
That is the Commissioner of Taxation speaking on behalf of the Australian Taxation Office. Mr Mills, on 7 December, said:
The ATO have upheld our position as an independent administrator and independence in our decisions throughout the course of this matter. Neither the commissioner nor I, or any other decision-maker in the ATO, were lent on by a minister or their office or directed to do anything other than what we did.
Senator McKim asked some questions of Mr Mills on the same day about me. Senator McKim said:
Did he—
that is, Senator Brandis—
at any stage seek to dissuade the ATO from intervening?
And Mr Mills said, 'No.' That is the evidence and that is the fact, but you would not think so from hearing the speeches given by Senator McKim, Senator Pratt and Senator Watt. But that is the evidence and those are the facts.
This entire wasted morning is an argument about nothing. It is an argument about an instruction that was never given, about a direction that was never issued. The highest to which the case made by the opposition rises, on the basis of evidence from an officer earlier in the week who was not directly involved, was that he had heard some bureaucratic whispers. Honestly and truly, Senator Pratt, if that is the best you can do—and it is the best you can do—you should not waste our time.
Let me turn to the question of the circumstances in which the Australian government, through its ministers, claims protection from publication of its legal advice. Let me say again—as I said in answer to you, Senator Pratt, and others—that it is absolutely the standard position of the Australian government that its legal advice, like the legal advice of any private client, for that matter, is not made public. Senators have been misled, perhaps through ignorance rather than malice, by a selective quotation from Odgers', which, in the current addition of Odgers', the 14th edition, between pages 668 and 669, under the item 'Legal professional privilege', says this:
Legal advice to the federal government, however, is often disclosed by the government itself.
And it is the case that on occasions privilege is waived, but that is not the standard case, as you know, Senator. It continues:
Therefore, the mere fact that information is legal advice to the government does not establish a basis for this ground. It must be established that there is some particular harm to be apprehended by the disclosure of the information, such as prejudice to pending legal proceedings or to the Commonwealth's position in those proceedings.
The problem with the selective quotation of that passage from Odgers' is that it disregards the long discussion that goes before in relation to the various grounds of public interest immunity.
Senator McKim, you said in your contribution: 'The Senate does not accept a simple claim of public interest immunity; a detailed statement is required.' I accept that, Senator Watt, and I provided a detailed statement, which is the document I tabled this morning and which I will read into the record. What it represents is both a statement of the universal practice of all Australian governments since Federation in relation to legal advice, subject in exceptional circumstances to waiver, I acknowledge, but that is something that is seldom done and is never done, nor should be done, if the advice to government is that the publication of the advice would prejudice the legal position of the Commonwealth.
So here are the detailed grounds, not of a legal professional privilege claim but for a public interest immunity claim. The selective quotation, as I say, from Odgers' of the passage that deals with legal professional privilege ignores, perhaps through ignorance or perhaps deliberately, the broader ground of public interest immunity, which Odgers' also addresses and which is the ground of the claim made in detail on behalf of the Commonwealth by me. Let me read it into the record. We begin with the statement of the former Labor Attorney-General Senator the Hon. Gareth Evans QC:
… [n]or is it the practice or has it been the practice over the years for any government to make available legal advice from its legal advisers made in the course of the normal decision making process of government, for good practical reasons associated with good government and also as a matter of fundamental principle …
That was what Senator Gareth Evans, the only Labor QC who has sat in the Senate as Attorney-General, said. To similar effect were the remarks of another former Attorney-General, the Hon Daryl Williams QC:
… I am going to offer the traditional response. I am not going to speculate about advice that the government may or may not have received nor am I going to provide any of that advice …
Another former Labor senator and shadow Attorney-General, who is also a member of the bar, Senator Joe Ludwig, of recent memory, put the position as follows:
To the extent that we are now going to go to the content of the advice, can I say that it has been a longstanding practice of both this government and successive governments not to disclose the content of advice.
The Hon. Philip Ruddock, another former Attorney-General, stated:
… It is not the practice of the Attorney to comment on matters of legal advice to the Government. Any advice given, if it is given, is given to the Government …
Those are clear statements from both sides of politics which indicate what, as I have said, is an invariable practice which stretches back to Federation, and I as the Attorney-General would be in outrageous breach of my obligations to the Commonwealth to depart from what has been the invariable practice of the Commonwealth executive government since Federation.
Thus, whether or not the Senate has accepted that matters pertaining to confidential legal advice to government are always and in all circumstances immune from disclosure is neither here nor there. The fact is that, in general, such matters are not disclosed. Plainly, as I acknowledged at the hearing, there may be exceptional circumstances in which to depart from that general practice. However, no such exception arises in the present context. On the contrary: as I will explain below, the present case is one in which the potential harm of disclosure is particularly acute, and the grounds for non-disclosure thus particularly strong.
The public interest in non-disclosure
It is not in the public interest to depart from the established position that has been maintained over many years by successive governments, from both sides of politics, not to disclose privileged legal advice. Absent exceptional circumstances, it is essential that privileged legal advice provided to the Commonwealth remain confidential. Access by Government to such confidential advice is, in practical terms, critical to the development of sound Commonwealth policy and robust law-making.
The High Court of Australia has repeatedly affirmed that there is a public interest in maintaining the confidentiality of legal advice. In Grant v Downs, Stephen, Mason and Murphy JJ stated:
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers.
It has further been recognised that the doctrine of legal professional privilege itself arises from a weighing of the public interest for and against disclosure. In Waterford v Commonwealth, Mason and Wilson JJ opined:
Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognised crime or fraud exception, the public interest in "the perfect administration of justice" is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence. Given its application, no further balancing exercise is required.
That view was reaffirmed by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Limited v Commissioner of Taxation. Their honours succinctly stated the rationale for the privilege: it "exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers."
It follows from these observations that the specific harm that the doctrine seeks to prevent is the harm to the administration of justice that would result from the disclosure of confidential interactions between lawyer and client.
It also follows that to invoke the doctrine of legal professional privilege is to identify the specific harm to the administration of justice that the doctrine seeks to prevent.
Here, the Committee's questions go to the heart of the Commonwealth's approach to constitutional litigation in the High Court. Disclosure of advice in this context would mean that in some of the most sensitive litigation faced by the Commonwealth — constitutional litigation with a State — the Commonwealth could no longer be assured that its dealings with its lawyers would remain confidential.
I do not think any senator would be so bold as to dispute that that is a detailed statement of the grounds of the harm the Commonwealth points to and of the legal and principled bases of the doctrine. So please, Senator Pratt and others, don't by taking out of context a sentence in Odgers'about legal professional privilege try and obfuscate the fact that the basis of the claim to prevent harm to the Commonwealth is based on the broader ground of public interest immunity, also discussed by Odgers', which you conveniently neglected even so much as to mention.
There is nothing to be found in relation to this matter. The claim for public interest immunity based upon the character of legal advice taken by government is utterly orthodox. When all of Odgers' is read, it is not inconsistent with Odgers' discussion of the public interest immunity ground, and I would be derelict in my duty as the Attorney to protect the legal interests of the Commonwealth to do other than as I have done.
Question agreed to.
by leave—I move:
That-
(1) If by 2 pm on Thursday, 30 March 2017, the following bills have not been finally considered:
Human Rights Legislation Amendment Bill 2017
Treasury Laws Amendment (Enterprise Tax Plan) Bill 2016,
(a) the hours of meeting shall be 9.30 am to adjournment;
(b) the routine of business from not later than 4.30 pm shall be government business only;
(c) divisions may take place after 4.30 pm; and
(d) the Senate shall adjourn without debate after it has finally considered the bills listed above, or a motion for the adjournment is moved by a minister, whichever is the earlier.
(2) If by 12.45 pm on Thursday, 30 March 2017, the Fair Work Amendment (Protecting Take-Home Pay) Bill 2017 has not been finally considered, the questions on all remaining stages shall be put without debate.
And I move:
That the motion be moved immediately and determined without amendment or debate.
The question is that the question be now put.
Question agreed to.
The question now is that the motion moved by Senator Brandis be agreed to.
Question agreed to.
I rise to continue my contribution on the Fair Work Amendment (Protecting Take-Home Pay) Bill 2017. This debate verifies and confirms how out of touch this government really is. Not only is this government joining with the decision that has been made to cut penalty rates for some of the most vulnerable and lowest-paid workers in this country, but it has continued its attack on Australian workers to the extent that it is almost laughable. The government come in here and try to defend themselves and say that the Prime Minister did not go on radio to confirm his support for cutting penalty rates. First they go after penalty rates and now they are trying to hold a minimum wage increase for the lowest-paid workers in this country.
In contrast to Labor's submission to the Fair Work Commission's annual wage review, the government's submission just lists arguments against increasing the minimum wage, including this argument, which states: 'increasing the national minimum wage is not an efficient way to address relative living standards or the needs of the low paid'. I would say to those people listening in the chamber and those reading the transcript that this shows once and for all that Malcolm Turnbull and his government do not care about Australian workers. Australian workers and their families have been neglected time and time again by this government. We know the attacks they have made on family payments.
The real issue here is that individuals rely on these penalty rates to be able to make their budgets balance at home. The money they get by having to work on Sundays and Saturdays is about ensuring that they are able to provide for their families, just like everyone else who may have better, higher-paying jobs. They have to make very tough decisions at times. Minister Cash has said in this place and also in the media that she believes this is only a minor or moderate impact on the people who will lose out when these penalty rates are cut. For the benefit of Minister Cash, government senators and others who are supporting penalty rate cuts: this money is about people being able to fill up their tank with fuel. It is about whether or not their children can get a new pair of school shoes. This is about whether or not they are able to meet their mortgage payments or their rent. These are real issues that these people have to deal with, time and time again.
On top of everything else that this government has done in relation to cutting family payments, we see now that this arrogant and out-of-touch government is again going after the very same people—those who earn the least amount of money. They are now saying that those hardworking Australians do not need a pay rise. I can assure you that, contrary to what those on the other side have contributed to this debate thus far, there will not be any new jobs created when they cut penalty rates. That just will not happen. What will happen is that those people who rely on penalty rates will in fact have to work longer to earn the same amount of money, which means they will be away from their families for longer periods of time. It will mean there will be increased pressure on students who are trying to work their way through university. They will have to make decisions that will impact on their ability to meet their university commitments. Quite clearly, this government does not understand. They do not want to understand that the attack that they are making just increases inequality in our community, and the sector this is going to impact the most will be women.
I want to talk a little bit about the real consequences of this penalty rate cut. We know and have spoken about it in this chamber time and time again that there will be over 700,000 Australians worse off. We know that in Senator Bilyk's and my state there will be at least 40,000 Tasmanians who will be worse off. Not one of the 700,000 Australians are going to be better off. Can you imagine that you have suddenly been made aware that you are going to have this enormous cut in your take-home pay? And the real impact is that it will take 17 years for you to get back to where your current wage is today. The thing that those on the other side do not understand is that when families are impacted and have a cut like this to their take-home pay they never make up the difference. They keep falling behind. They do not have any reserves. If their washing machine breaks down, they just do not have the money to go out and buy a new washing machine. We who sit in government and in this chamber do pretty well on a monthly basis when we get our pay cheques, but these people do not. If you have never had to walk in the shoes of somebody who has to scrape their dollars together to be able to buy milk at the end of the week or to be able to pay for their children to go on a school excursion, then you have no understanding.
This is confirmation of the arrogance and of how out of touch Mr Turnbull and his liberal government are. They just do not understand what is happening out there in the community. Realistically, they have the opportunity to support this legislation. We can vote on this, and I clearly believe that they will be the last people standing. They are alone in this debate, because there is no greater conversation going on in my community. I see this when I go out and talk to people. They are everyday people who are having to confront the issues of trying to balance their weekly budgets, trying to meet their mortgage and trying to ensure their kids get a good education.
They can vote in support of this bill and get a little bit of credibility back. Quite frankly, nobody in the community trusts this government because, no matter what they touch, it turns to stone. We have seen in here the cuts that they have tried to make in budget after budget after budget. I met with the registered nurses who work in the aged-care sector and heard first-hand about the dilemmas that they face because they really feel that their penalty rates are going to be attacked as well. It is very powerful when you have a mature woman crying when trying to explain to you what the real impact is going to be.
It is not just Labor and the crossbenchers talking to their community about the impact that this is going to have. The strongest voices in this debate are those people who are going to be directly impacted. If those on the other side continue to campaign to attack the lowest paid workers in this country and also attack the multicultural society that we have developed in this country, with the racist changes that they want to make to section 18C, they do so at their own peril. You cannot keep cutting health and education without having an impact. You cannot change the child-care system in this country, so that some of the most disadvantaged young kids will not have the same opportunities for early childhood education, without having an impact.
I read in the newspapers Mr Turnbull's response to all these genuine issues in the community that people raise with us day in and day out. We have been taking phone calls. My office has never been so busy with constituents after the attacks on families and the Centrelink debacle where you attacked one person after another and it was totally unfounded. You cannot keep doing this without there being a reaction. If you keep attacking the most vulnerable in the community, they will rise up and ensure that you are banished. People cannot take the pressure that this government is continually putting on them. We have the highest level of underemployment in this country. You have increased the debt. Every other senator who comes in here wants to blame the previous Labor governments, but the reality is that the buck stops with you guys. You have now been in government for four years. It is time to take responsibility for your own actions. The Prime Minister promised so much before the last election but has delivered absolutely nothing.
A government cannot walk away from their responsibility to ensure that we have a good, strong workforce and highly skilled Australians. We have lost the car industry. We have lost the skills that are so important to this country. Sooner or later you will have to go to an election, and I have no doubt at all that people will not forget this. These are not issues that people will forget overnight. When you attack people's ability to support their families, they will not forget. We will continue to stand up in this chamber and in the community day in, day out. We are never going to walk away from those in our community who depend on us to do the right thing, to protect them. We will stand with Australian workers and we will defend their right to earn penalty rates.
It is a pleasure to be speaking in this debate today on the Fair Work Amendment (Protecting Take-Home Pay) Bill 2017, but I have to say that I wondered whether we would get here at all. I wondered whether we would get to this bill at all. I wondered whether the Labor Party were in fact at all sincere about debating this issue today because they chose to spend the first hour this morning attacking the Attorney-General yet again, attempting to smear the Attorney-General's reputation yet again and engaging in another fruitless personal attack against the Attorney-General without any evidence or support for their arguments. I wondered whether we would eventually turn to an issue that they tell us is so important, that they tell us is a top priority for them and their constituents, that they tell us they hear from the community so much about and that they tell us should be the focus of the Senate's and the parliament's work. But we have got here eventually, and isn't that a wonderful thing?
It is also always a pleasure to follow Senator Polley in a debate. I listened careful to her contribution. She made a very sincere case for her cause in this instance. She certainly talked a lot about what the consequences could be for people if they were to be paid thanks to the Fair Work Commission's decision less penalty rates than they are currently paid. I had to say that, unfortunately, there were a fewer omissions from Senator Polley's contribution to the debate. There were a few facts that she neglected to mention, which if you did not know you might have a different view of this debate. I think it would be helpful if I took this opportunity this morning to put those facts on the record so that people can judge for themselves how this decision came about, who is responsible for this decision and what the Labor Party are walking away from with their bill here today.
I think the most important thing for people to realise is that what we have seen here this morning is just a stunt from the Labor Party. It is not sincere, it is not genuine and it is not actually an attempt to resolve a policy issue; it is an attempt to take credit for concern that they and the union movement have whipped up in the community and it is an attempt to harvest political benefit from the anxiety that they themselves are responsible for stoking in the community. A very good example of that is Senator Polley's suggestion that this decision, which applies in fact very narrowly and to a very small number of occupations, will soon in fact apply much more widely and to other professions and other occupations. She did so without any evidence, without any support for her claims. She asserted it knowing that there will be some people out there in the community who will be fearful when they hear that, who fear that they will be affected. She asserted it knowing that the union movement will back her up in her claims and that they will peddle these mistruths in an attempt to scare people and gain political benefit from doing so.
If the Labor Party are genuinely serious about this issue, it marks a radical departure from their previous position on this issue and a radical change to industrial relations policy in this country. There are three different ways that wages could be set in this country. They could be set by the market, negotiated between employees and employers, and the best rate available would be negotiated and accepted. They could be set by the Fair Work Commission, carefully arbitrated and considered in a legal sense, with arguments for and against. Or they could be set by the parliament.
In recent years, they have not been set by the parliament. Those opposite are suggesting that we now do so because they are unhappy and unwilling to stand by the decision of the Fair Work Commission. It reveals a lot about their attitude. It reveals their lack of support for small business and their lack of understanding of how difficult it is to run a small business, particularly on the weekend. It reveals their lack of understanding of how difficult it is for small businesses to compete with large businesses that are able to secure sweetheart deals with large unions. And it reveals in many ways an attitude which is becoming more readily apparent, which is that the union movement and the Labor Party are only able to accept decisions of the independent umpire or of the parliament if they are decisions that they agree with.
The Labor Party's rejection of the Fair Work Commission's decision in this instance mirrors very closely the rejection of the rule of law by Sally McManus, the new head of the ACTU. She has said, and she repeated it only yesterday at the National Press Club, that she thinks it is completely fine for unionists to only abide by laws which they agree with, which they approve of, which they think are fair and just. But if they do not agree with them, if they do not approve of them, if they think they are unfair, if they think they are unjust then it is absolutely up to them to completely disregard, disobey and break those laws and that is a perfectly fine thing to do.
The Labor Party has adopted the same attitude here. It will abide by the Fair Work Commission's independent decisions on wages as long as it agrees with them, as long as they are favourable. The Fair Work Commission—which Labor appointed, whose legislation Labor wrote and passed through this place enabling them to make these decisions, whose review was begun only because the now Leader of the Opposition and then Minister for Workplace Relations required them to do so—made a decision Labor did not like. They made a decision under Labor's rules, by Labor's appointees, and the Labor Party is rejecting it because it is not a decision that it liked.
It was the then Minister for Workplace Relations, Bill Shorten, who amended the Fair Work Act in 2013 to specifically require the commission to consider penalty rates as part of the four-year review of modern awards. That was a four-year review of modern awards that was established under the Fair Work Commission when the act was passed. That was a Fair Work Commission that was established by the Labor Party. And the commissioners who made that decision were appointed by the previous Labor government. So the owners and the authors of the decision that we have seen in recent weeks are, in their entirety, the Labor Party and, in particular, Mr Shorten.
It is not a surprise then that on Melbourne radio not that long ago, when asked whether he would abide by a decision made by a system that he set up and by people that he appointed and under rules that he wrote, Mr Shorten said yes. He was on Neil Mitchell's program on 3AW. Neil Mitchell asked:
MITCHELL: The Fair Work Commission will report soon on Sunday penalty rates. They're an independent body, in fact you had a lot to do with the way they operate now when you were Minister. Will you accept their findings given this is an independent body assessing penalty rates for Sunday, if you're Prime Minister?
SHORTEN: Yes.
MITCHELL: You'll accept them?
SHORTEN: Yes.
MITCHELL: Even if they reduce Sunday penalty rates?
SHORTEN: Well, I said I'd accept the independent tribunal …
That was an interview on Neil Mitchell's program on 21 April 2016. That was not so long ago, and it is not clear what has changed in that time. There are a couple of things that could be true given that. It could be the case that Bill Shorten was not being clear and straightforward with Neil Mitchell when he was asked these questions or it could be that Bill Shorten has changed his mind since then. If he has changed his mind, it is not clear why he has done so. He knew then, as Neil Mitchell warned him, that there was a risk that the decision of the independent umpire would be to reduce Sunday penalty rates. And, knowing that, Bill Shorten said he would accept the decision. As we know, he has now not accepted that decision.
Of course, Bill Shorten does not always have a problem with accepting the reduction of penalty rates. In fact, he presided over the reduction of penalty rates as union leader at the Australian Workers Union. Workers at Clean Event were stripped of all penalty rates, with no compensation, under a 2006 agreement for which he was responsible. At the Melbourne and Olympic Park trusts, agreements were approved by Bill Shorten in 2001 and again in 2003 which stripped workers of all penalty rates and overtime except for one 125 per cent penalty rate for work performed between 1 am and 6 am. I did not hear Bill Shorten running to the parliament then saying we needed to abolish the role of the independent umpire and have wages set by law and by politicians voting on them. I did not hear him objecting to those changes. In fact, he could not have objected to those changes, because he signed off on them as a union leader.
Bill Shorten wants to make a radical change to our industrial relations policy. The private member's bill that we have before us today is a bad idea for many reasons, one of which is that it is fundamentally unworkable. The bill would require the Fair Work Commission to act inconsistently. On the one hand the commission is required to ensure awards are fair and relevant, taking into account the impact on business employment costs and employment growth, which means more jobs. On the other hand it could never reduce take-home pay, no matter how small or sensible that change might be or what might be traded off.
Bill Shorten is proposing that the Fair Work Commission not be able to make decisions that he himself made as a union leader. If this bill were passed, it would not even be possible for the Fair Work Commission to, for example, agree that Sunday penalty rates should be reduced and other rates of pay should be increased in compensation. That is something that the Fair Work Act allows a union and a business to do when they agree. They are the sorts of deals that Bill Shorten presided over many times as a union leader, and, I suspect, many of the former union leaders who are in this place and the other place would have presided over such deals, but the Fair Work Commission would be prevented from doing so by this bill.
Secondly, the bill would prevent the reduction of take-home pay for any employee covered by the award, with no consideration given to the magnitude of the reduction or why the reduction was taking place. Even a variation of an allowance in an award by a few cents—for example, in exchange for more annual leave—would be prevented by this bill. This cumbersome law would make the industrial relations system massively more rigid, reduce flexibility and reduce employees' ability to access benefits that they sought and were happy to receive.
Finally, the bill would, extraordinarily, also prevent variations from being made due to errors or inconsistencies. It would prevent variations to remove payments or allowances that are no longer relevant to the award. For example, one of the issues that the Fair Work Commission recently considered was the potential doubling up where annual leave loading and shift loadings are paid while a worker is on annual leave, based on the wording in the Electrical, Electronic and Communications Contracting Award 2010. So, if this bill were to pass, an error in an award could not be corrected by the Fair Work Commission and would be forced to persist. The bill is an extremely unworkable, inflexible proposal to change the award system.
As I have said, the penalty rates decision was independent of government. It was made by the Fair Work Commission. It was not made by people that we appointed. It was not made under a law that we wrote. It was not made under a law that we even voted for. It was made by a law pushed through this place by those opposite. Let's get some facts on the table about what has happened with this decision. Public holiday rates are being reduced from 250 per cent to 225 per cent for permanent staff and from 275 per cent to 250 per cent for casual staff in five industries: retail, hospitality, fast food, pharmacy and restaurants. This is a decision which reflects the reality of modern shopping trends. It may be the case that, when these awards were originally designed and agreed to, Sunday shopping was not a common thing, but many consumers want to shop and many people want to work on Sundays, and this just reflects the reality of that. Workers in these industries who are covered by enterprise agreements—for example, those in a major supermarket or a fast-food chain—are not directly affected by this change. That is something which the Labor Party recently discovered after putting up at a press conference a worker from a major supermarket who claimed to be affected by this change but in fact was not affected by this change, in addition to being a Labor Party branch member and volunteer. No other industries are affected. This is important. The commission specifically said in its decision that it sets no precedent for other workers who work on weekends, such as nurses or emergency service workers. You may be forgiven, having listened to Senator Polley's contribution earlier, for not realising that that is the case, but Senator Polley did not truthfully reflect the statement made by the commission. Affected workers will still get weekend penalty rates, but Sunday rates will be brought closer into line with Saturday rates, which remain unchanged.
I have said before in a contribution to this debate that I find it very amusing to see the Labor Party defending Sunday penalty rates given that the historical reason for why people are paid more on a Sunday compared to a Saturday is that it was the Sabbath and it was deemed to be immoral to work on the Sabbath and we should discourage and, in fact, penalise people who wished to open their businesses and work on the Sabbath. I wonder, in 21st century Australia, in the multicultural, multiethnic, multireligious society that we are, where not everybody views Sunday as sacrosanct, as some Australians once did, whether it is still relevant and appropriate to pay much more on a Sunday than a Saturday. I look forward to hearing, in further contributions to this debate by senators who think that this decision was unjustified, why we need to protect the Sabbath, why religious doctrine should influence rates of pay and why Sunday is more special than Saturday.
One important aspect of this change, though, is that it gives small businesses a better chance to compete on a more even footing with large businesses. We discovered recently just how unfairly the deck is stacked against small business, and that is because big unions and big businesses have been doing deals for a long time which have eroded Sunday rates of pay and allow them to pay far less per hour to their workers on Sundays, which makes it much more affordable for them to open on Sundays but makes it very difficult for small businesses to open on Sundays and still be profitable, let alone compete with these major businesses and chains. For example, a bed and breakfast must pay $10 an hour more than a five-star hotel; a family chicken shop must pay $8 more per hour than KFC; a family owned takeaway must pay $8 more per hour than McDonald's; a family greengrocer must pay $5 more per hour than Woolworths; a family pizza takeaway must pay $8 more an hour than Pizza Hut; a boutique clothes shop must pay $7 more an hour than David Jones; a family bookshop must pay $8 more an hour than Target; a family newsagent must pay $7 more an hour than Officeworks; a family bottle shop must pay $7 an hour more then Dan Murphy's; and a family hardware store must pay $5 more per hour than Bunnings. Is there anybody in this place who seriously thinks it is justified that small business should be bound and forced to pay significantly more—in some cases, 20, 30 or 40 per cent more—to hire and provide employment opportunities for their workers and provide services to their customers on Sunday than big businesses pay?
Do we wonder why it is that a union would be willing to trade away the pay rates of their workers on a Sunday with a big business? What is the reason that a union would do that? Well, the modern union movement is a bit different from the union movement of old and the primary motivation of many union leaders today is very different to the motivation of union leaders in times past. They are primarily motivated today by the fact that the more members they have, the more votes they have in internal Labor Party forums. The more members they have, the more money they have to spend on running political campaigns to elect their mates. The more influence they have with the Labor Party, the better chance they and their mates have of finding their way up in this place after their careers as union officials. If they really cared about the workers they represent, and if they valued that more than they value a cosy working relationship with big business, which facilitates their ability to sign up workers and charge workers their union dues, they would instead never accept a cut to Sunday penalty rates and never accept trading off Sunday penalty rates for a cosy relationship with business. And, as we have discovered, occasionally, payments from those businesses to those unions in the midst of EBA negotiations, which, until the parliament hopefully deals with this matter, have been a matter which could be completely secret, concealed form union members and done as a deal behind closed doors by a union leader and a business and completely unbeknownst to workers.
It is worrying in the extreme that the union movement is willing to make these trade-offs and that many of those former union officials, who are now Labor MPs, are now hypocritically saying that the Fair Work Commission should not be able to set up the kinds of arrangements that they themselves have entered into when they were union leaders. Bill Shorten is the best example of that.
This decision has been welcomed by small businesses, because—
Senator Paterson, I remind you to refer to others here and in the other place by their correct titles.
Thank you, Madam Deputy President; I appreciate that reminder. This decision has been welcomed by small business leaders, because they know how difficult it is to compete on the weekend, particularly, with large businesses who have done these cosy deals with union leaders. An example is George Kanellos of the Rose Hotel in Sydney, who says:
As a business owner it means we can hire more staff and have more working on Sundays which works best for customers.
Will Nevile from Wharf ONE in Cairns says:
It will certainly increase our ability to put on more people. In the current situation the consumer gets less amenity, staff get less work, the government gets less tax and businesses get less turnover. I fail to see a winner.
These are the small businesses who will benefit from this decision. It is their workers who will benefit from this decision by getting more hours, and the Senate should seriously consider the extraordinary hypocrisy of the Labor Party in proposing this change when they themselves have done these deals in times past in the union movement.
As a servant to the people of Queensland and Australia, I rise to speak to the Fair Work Amendment (Protecting Take-Home Pay) Bill 2017. This bill, introduced by the Labor Party, seeks to amend the Fair Work Act 2009 to ensure that awards cannot be varied to reduce the take-home pay of an employee, including any reduction in take-home pay as a result of a reduction in penalty rates, or the hours to which penalty rates apply. It will also prevent decision AM2014/305 of the Fair Work Commission from taking effect.
As a strong supporter of workers' rights and as the voice of the battlers, the union members, workers, small business and taxpayers, Pauline Hanson's One Nation Party will be supporting this bill as a matter of principle and after listening to our constituents widely. However, it should be noted that this bill is an act of gross hypocrisy by a party whose own leader, Mr Bill Shorten, has been responsible for the erosion of penalty rates through crooked, secret deals to create enterprise bargaining agreements when he was a union leader that do exactly the same thing.
Let us look at the facts. The honourable Leader of the Opposition, Mr Shorten, has a long, colourful history as a union hack—a history checkered by kickbacks extracted from employers and secret commissions that betrayed the workers, who gullibly trusted him. As the former—
Thank you, Senator Roberts. Please resume your seat.
Madam Deputy President, on a point of order: I think referring to the Leader of the Opposition in that manner and referring to kickbacks in that manner is unparliamentary, and I would ask that these remarks be withdrawn.
Thank you, Senator Carr. I have just asked the Clerk to have a look at that. Senator Roberts, in the meantime, you may wish to consider the comment you made and withdrawing that remark. Thank you. Please continue, Senator Roberts.
As a former National Secretary of the AWU between 2001 and 2007, Victorian State Secretary from 1998 to 2007, and Victorian state president of the Labor Party from 2005 until 2008, the honourable Labor leader was a person of great interest to the royal commission into union corruption. The royal commission into union corruption heard that Mr Shorten accepted and failed to disclose large donations to himself from employers while negotiating for the union on behalf of employees—secret commissions to rip off his fellow union members.
The Leader of the Opposition admitted to the commission that he had failed to declare a political donation of around $40,000 from a labour hire company in the lead-up to the 2007 election campaign and that invoices regarding the payments for services were not truthful. Mr Shorten, however, claimed to have no knowledge of false invoicing totalling more than $300,000, which had been sent to construction company Thiess John Holland—a very convenient form of collective amnesia. These so-called donations were undeclared, because they were a pay-off—a pay-off to agree to lowering the wages and conditions of his already poorly-paid union members. No wonder he wanted them kept secret. So let us be clear: the leader of a major union and now the self-styled leader of the so-called workers party took secret commissions from employers to sell his own union members down the river.
During the royal commission into trade union corruption, under cross-examination, counsel assisting and the commissioner, Mr Heydon QC, said that the honourable Leader of the Opposition was being 'evasive' and 'non- responsive'. Evasive and unresponsive—it is hardly surprising, is it? I mean, if he was honest, he would have to admit that he had betrayed his fellow union members, just like Craig Thomson, Michael Williamson and Kathy Jackson.
Senator Roberts, would you mind just sitting for a moment. I undertook to check the statement that the President made the other day, and I draw your attention to the use of the words 'pay-offs' and 'kickbacks', specifically in relation to that statement.. He said:
Any remark which carries an imputation of corruption or criminality made in respect of any senator or member is contrary to the standing orders and, if made, ought be withdrawn.
I did ask you to consider withdrawing the term 'kickback'. I did not pull you up on 'pay-off', because I was still waiting for the Clerk, but I would ask you to consider withdrawing those and just being careful that you do not make imputations. Thank you.
I withdraw those comments.
Thank you, Senator Rob. Please continue.
Mr Heydon QC said:
What I am concerned about more is your credibility as a witness; a witness—and perhaps your self interest as a witness as well.
The commissioner did not believe him, because he had serious doubts about the veracity.
On Mr Shorten's watch as AWU secretary, massive conflicts of interest and ripping off his own AWU members in crooked side deals with employers like Cleanevent were the order of the day—in fact, precisely the kind of moral corruption that the government's fair work amendment bill sought to outlaw. Now he has the gross hypocrisy to denounce the Fair Work Commission decision to reduce penalty rates. Such blatant hypocrisy is almost unbelievable. Can you imagine this man as Prime Minister? Even the small change you keep from the laundromat would not be safe left lying around. How on earth can Labor senators denounce the Fair Work Commission's decision with a straight face, knowing that their leader has done exactly the same thing on the sly? Have you no shame?
I ask you, my fellow senators: what does this say about Labor senators who support this man as their leader? Even the opposition leader's predecessor, former Prime Minister Paul Keating, has given a damning indictment of Labor's performance under the stewardship of Mr Shorten. In a recent biography, which can be found today in the remainder bins of all the best bookshops, Mr Keating was quoted as saying that the Labor Party under Mr Shorten had lost its way and that unions under leaders such as the former head of the AWU, Mr Shorten, lacked the focus on the national interest they once had. In a rare moment of clarity, Mr Keating observed that under the leadership of Mr Shorten Labor has 'a leadership deficit'. But I would go further. I would say the Leader of the Opposition has a credibility deficit. Where are you when we need you, Ben Chifley and John Curtin? Today you would be standing with us as One Nation senators.
There is a Sicilian saying: a fish rots from the head. This is exactly what we see with the current Labor Party. A political leader who, whilst a union official, took secret commissions to sell out his own fellow union members creates a culture in which nefarious and venal behaviour by unions becomes acceptable.
Senator Roberts, I again remind you of the statement I read from the President about imputations. I would again ask you consider withdrawing that.
I withdraw, Madam Deputy President. Suddenly the former party of workers has found itself in league with criminal thugs, and that has been verified in the Heydon commission. The CFMEU is a case in point. Last year around 100 CFMEU thugs were prosecuted or were facing prosecution for wreaking havoc on the nation's building sites, accused of more than 1,000 industrial breaches. The CFMEU and its officials have also been fined a total of around $7 million for industrial breaches which have been dealt with by the courts since 2002. Those brought before the courts have included the CFMEU's national secretary, Michael O'Connor, brother of Labor's shadow minister for employment and workplace relations, no less. They have also included construction division head David Noonan and New South Wales and Queensland secretaries Brian Parker and Michael Ravbar. 'Violence', 'extortion', 'blackmail' and 'intimidation' are words used repeatedly in the media and in the Heydon commission. Court case after court case has shown that this union is so corrupt that it makes the teamsters union under Jimmy Hoffa look like the Sisters of Mercy.
I am sure there are some decent and honest Labor senators here, and they privately are appalled by the conduct of CFMEU thugs and feel just as strongly as I do that this corruption must be brought to book. In fact, some have said so, but they are silenced by a Labor leadership that has its own history of union corruption and is beholden to corrupt union bosses even now.
What wider opposition to last year's registered organisations commission bill revealed, however, is how the corrupt tentacles of this organisation have spread to non-Labor organisations which the CFMEU has bribed and co-opted to its cause. The CFMEU tentacles reach into parties in this chamber and individual members. However, the reach of the CFMEU's tentacles does not stop there. In 2010 alone, the CFMEU donated $1.2 million to extreme left-wing activist group GetUp!—
Madam Deputy President, on a point of order on relevance, we are supposed to be debating the Fair Work Amendment (Protecting Take Home Pay) Bill 2017. I have sat here for the last three minutes and listened to Senator Roberts go on. He has some jihad against the CFMEU. Take it up with the CFMEU, but this is not about the bill, so I am calling relevance.
Thank you, Senator Sterle. I just remind you that Senator Roberts did start off talking about the bill. It is a wide-ranging discussion, and I remind all senators that it does need to be relevant to the bill. I am sure that Senator Roberts is going to get back to the bill.
I certainly am, Madam Deputy President. Thank you. However, the reach of the CFMEU's tentacles does not stop there. In 2010 alone the CFMEU donated $1.2 million to extreme left-wing activist group GetUp!, one of whose founding board members was Mr Bill Shorten, and at least two so-called Independents in this parliament are receiving union funding.
We see, in fact, that the priority of CFMEU bosses is not their members' jobs, which they happily sacrifice, but the protection of nefarious CFMEU officials from scrutiny and prosecution for their crimes. I make the point that this party is sacrificing coalminers' jobs in the state of Queensland and sacrificing, as I will explain in a minute, small businesses and union members. We have seen even the new head of the ACTU, Sally McManus, publicly state that unions do not need to comply with the law. Sadly, this approach is very much a case study of the Leader of the Opposition's model of industrial governance.
So let's take a closer look at the opposition leader and what he did for his fellow union members whilst head of the AWU. In 2004, Mr Shorten signed an enterprise bargaining agreement—and this is where I am coming back to—with Cleanevent that allowed them to work staff around the clock for up to 12 hours at a time and up to 60 hours a week without award penalties or loadings. Any honest union leader would have known that this agreement was against the interests of their members and a sweeter deal for their employer—but not Mr Shorten. The opposition leader has previously boasted that he 'always improved workers' conditions', but just this one agreement shows that this claim is false. For the hapless low-paid workers at Clean Event, things just got worse under Mr Shorten. When this rip-off EBA expired, the Labor leader exploited John Howard's Work Choices laws to negotiate another deal with the company which ripped off another $2 million from his workers' pay packets.
Why on earth would a union leader do this? Why would he sell out the very workers he was supposed to be elected to defend? The answer is self-interest. Clean Event gave $40,000 to Mr Shorten's subsequent election campaign. The Heydon royal commission also uncovered other payments. Visy Packaging paid the AWU $190,000 in return for EBA deals that grossly underpaid its workers. And so it goes on and on.
Of course, these are not isolated cases. Mr Shorten was not the only union leader selling out his own members. Around 250,000 Australian workers are being underpaid with below-award rates negotiated by union bosses like Mr Shorten in return for crooked payments from employers. This costs mainly low-paid workers around $300 million a year. Quite a number of the union bosses who sold out their members with these rip-off EBAs have gone on to be elected to parliament, just like Mr Shorten—leading the workers from behind a brandy balloon. These rip-off EBAs failed the 'better off overall' test but have been approved because corrupt union officials and the big businesses who bribe them have colluded to fool the Fair Work Commission into approving them.
Let us consider the example of McDonald's workers. Instead of receiving the award rate of $29.16 per hour on a Sunday, their workers get just $21.08 per hour thanks to a union-sanctioned rip-off EBA. That is a 27 per cent pay cut for McDonald's workers courtesy of their own union bosses. KFC and Pizza Hut are much the same. On Sundays their workers get only $21.09 and $20.35 per hour respectively. They are all giant foreign-owned corporations, all getting sweetheart deals to rip off Aussie workers.
But the local family-run milk bar that tries to compete with them does not get to pay those rates. No, they still have to pay the $29.16 per hour, so how on earth can they compete with giant multinational chain stores? I wonder how much tax they are paying. As the leader of our party has raised many times, and as I have, they cannot compete. That is why the small businesses are going out of business. Family-owned corner stores are disappearing fast, thanks in great part to the opposition leader and his corrupt union mates.
Let us look at clothing stores. On Sundays David Jones pays $29.53 per hour, but family-owned boutiques and shoe shops have to pay $37.05 per hour. Then there are hotels. International hotels, like the Sheraton or the Hilton, get to pay their workers just $21.63 per hour on a Sunday, while family-owned bed and breakfasts have to pay $31.87. How can they compete—
Senator Roberts, I have once again sought the advice of the Clerk in relation to the President's statement. Linking members of this place or the other place with that use of 'corrupt union officials' is, again, an imputation, so I would ask you to withdraw that.
I withdraw that, Madam Deputy President.
Thank you.
How can they compete? Notice the pattern: big businesses, typically foreign-owned giant multinationals, get to pay up to a third lower wages than local Aussie family businesses thanks to the likes of Mr Shorten and his ilk. The tentacles of Labor's rip-off EBAs reach throughout the retail and hospitality sectors, ripping off the lowest-paid Aussie workers and wrecking Aussie small businesses while giving a leg up to the big end of town. In return, these mostly foreign-owned big businesses give millions in kickbacks, secret commissions, to the corrupt union bosses, which they then pass on in contributions to the Labor Party. That is the money trail, isn't it?
Senator Roberts, again that is another imputation, if you would withdraw please.
Madam Deputy President, it has been well recognised that these kickbacks have come to the unions, and the unions have donated to the Labor Party—
Senator Marshall?
Deputy President, I draw your attention to standing order 203 and ask whether you think that Senator Roberts is now persistently and wilfully refusing to conform with the standing orders or persistently and wilfully disregarding the authority of the chair. You have pulled him up and drawn his attention to the standing orders and rulings of the President, now on several occasions, and he completely ignores that and continues on. I think that you, as chair, should consider exercising standing order 203.
Senator Fawcett?
Just on the point of order, Madam Deputy President: Senator Roberts was pulled up correctly when he was making imputations about members in this place or the other place. Some of his comments have gone more broadly to organisations outside of the parliament—
I think that is a debating point you are now raising—
No, because the standing orders only prohibit imputation against members of the Senate or the other place, not outside organisations.
Senator Roberts, I have asked you a number of times to be careful of imputations. I did quote to you the statement made by the President earlier this week. Senator Marshall has raised standing order No. 203, which clearly does go to the issue of not taking note of what the chair is suggesting. It does leave the final matter to the President. I will ask the President to have a look at what has occurred today, but I would ask you once again. It is obvious that an imputation is clear when you link the word 'corrupt', or any of the other words, to senators or indeed to a particular party—it also extends. I would ask you not to use that language in the remainder of your speech, and I will ask the President to review. The President will come back to the chamber if he thinks it is necessary. Thank you.
So we see a clear pattern. We see widespread union criminality. We see irresponsible militancy. We see the deliberate destruction of industries like the Queensland coal mining industry, logging and traditional power generation. We see workers ripped off with crooked EBAs negotiated by union bosses who receive kickbacks. And then they have the temerity to come in here and sanctimoniously attack the Fair Work Commission for reducing penalty rates when they themselves have done exactly the same thing.
A point of order, Madam Deputy President: once again, Senator Roberts disregards your ruling. How many more times does he have to be told, for crying out loud? And all he does is stand there and go, 'I withdraw,' as though it is okay. You understand where I am coming from. How many more times is he going to disrespect your call.
The senator has made reference to facts concerning union corruption. What is interesting here is that we have a protection racket over there—
Senator McGrath—
You're protecting Sally McManus, the modern day communist—
Senator McGrath!
and now you're trying to stop debate in this chamber!
Senator McGrath, I would ask you when I call your name to please desist. I would ask you to respect the chair. Senator Sterle, I listened very carefully, as I have to the whole debate in here today. I do not believe there was an imputation made on that occasion.
In fact, since the last appeal I have been very careful and I have not mentioned any particular names. The hypocrisy—
Madam Deputy President, with the greatest respect to the chair and yourself, he said, 'They come in here.' Who is they? He is talking about us, so he did impugn.
Thank you, Senator Sterle. The President is going to be reviewing this. I will take particular note of that, but, as I said, I have been listening carefully. I did not think there was an imputation on that occasion. Please continue, Senator Roberts.
Let me be clear: and they come in here and sanctimoniously attack the Fair Work Commission for reducing penalty rates when they themselves have done exactly the same thing, but only for their foreign-owned-business cronies. The hypocrisy beggars belief. Labor pretends to defend penalty rates, while actually being funded by kickbacks for secretly abolishing them. Pauline Hanson's One Nation party is not going to let them get away with it. We are not going to sit here while hypocritical Labor senators stand up and pretend to be protecting penalty rates.
Again on a point of order: he is now reflecting on senators and making imputations. I think the problem comes back to standing order 187, which says, 'A senator shall not read a speech.' Senator Roberts seems to be unable to adjust his written and prepared speech to accommodate your rulings and continues just to plough through. I think that is the problem. Maybe if you were to apply standing order 187 that would resolve the problem.
There are two issues there. First, I do believe that you made an imputation, so I would ask you to withdraw 'hypocritical Labor senators'. Second, it is accepted practice in here that people can use copious notes, but there is a standing order which says you are not to read notes. Senator Roberts, for your remaining three minutes and 28 seconds, I would ask you not to make any further imputations and to withdraw the imputation you made.
I withdraw, Madam Deputy President, that I called them hypocrites. However, their behaviour has involved hypocrisy.
Senator Roberts, please—
A point of order: the standard of a senator making an unconditional withdrawal by repeating the accusation and the words that are offensive is not the standard we expect in the Senate. Senator Roberts ought to know better. He did not arrive simply yesterday. If he is going to flout your rulings, your directions, and then really disregard all the appropriate standards of this chamber I think you ought to reconsider your powers under standing order 203.
Thank you, Senator Marshall. Senator Roberts, it is not within the culture of this place and it is not within the standing order to part-withdraw and then make a further comment. I asked you to withdraw the imputation. I have asked you also in the remainder of the three minutes and 22 seconds you have left not to make further imputations. I would ask you simply to categorically withdraw the imputation.
Madam Deputy President, may I ask you a question?
Certainly.
It is not appropriate, I understand from what you are saying, to call a member a hypocrite. But if the behaviour exhibited is hypocritical can I describe the behaviour as hypocritical?
I think you are just making a fine point there. This is a place where we try and engage in respectful debate. From time to time it gets heated—that is accepted. There is a bit of to-and-fro—that is accepted as well. But to continue to use imputations two or three days after the President has made it very clear that that is not appropriate is clearly out of order. Please continue. I would ask you to withdraw categorically.
I withdraw the description of the Labor senators as hypocrites. We are—
Madam Deputy President, even though you have advised the senator not to withdraw by repeating the allegation, he has simply done so again. He is persistently and wilfully disregarding your instructions.
Thank you, Senator Marshall. He did withdraw.
I agree. He did withdraw the remarks, and I do believe he has the right to—
Is this a point of order, Senator Hanson?
Yes, it is a point of order. I disagree with the other comment. He did withdraw.
That is a debating point. I would ask you to resume your seat.
Pauline Hanson's One Nation party is not just going to sit here and watch while other senators pretend to be protecting penalty rates with their amendment to the Fair Work Act, when we know that the majority of workers will not be affected even if the bill passes, because their penalty rates have already been stolen by Labor in return for—
A point of order once again, Madam Deputy President, on standing order 187: the senator is reading his speech.
As I explained, it is accepted practice in here that people use copious notes. I have asked Senator Roberts to be mindful of that.
We know that the majority of workers will not be affected, even if the bill passes, because their penalty rates have already been stolen by the Labor Party in return for secret commissions from big business. One Nation is committed both to supporting Aussie workers and to helping small businesses compete. To this end, I foreshadow that we will be moving an amendment to Labor's bill, to extend the protection against the loss of penalty rates to existing EBAs. Under One Nation's amendment, 250,000 low-paid workers will immediately obtain a pay increase of up to 30 per cent for weekend and public holiday work, and small business will immediately get a level playing field on which to compete with giant foreign-owned multinationals.
What is it going to be, Senators Wong and Cameron? How will you and your fellow Labor senators vote on that one? Are you finally going to do the right thing for all those unionised workers on your rip-off EBAs that give them the same pay as they would get from small businesses, or are you going to show yourselves to be the world-class contradictors that you appear to be and actually vote against giving low-paid workers the pay rise they deserve? I will be moving that amendment at the appropriate stage. Finally, after all the deception, the ducking and weaving and the contradictory cant, Labor is cornered and has to make a choice. We are looking forward to seeing which way Labor jumps.
I was in the chamber last week when Senator Seselja recounted his youth working for Woolworths. Madam Deputy President, you may recall that two days ago I referred to his claim that—I will read the words again. I hate repeating this, but it probably needs to be repeated in order to explain his contribution. He said:
They sold me out on penalty rates. I think we got time and a half in the nineties on a Sunday. I was young. I was 19 and I joined the SDA in good faith, hoping they would do me a good deal. It turned out like so many others in the union movement and like Mr Shorten: they sold me and thousands of other workers out as well.
Madam Deputy President, you may recall that I thought that that was wrong, mistaken. I went away to have a look at whether or not Senator Seselja's comments were correct. What we discovered when we did that examination was that Senator Seselja did mislead the Senate. He was not sold out by that great trade union, the SDA. In fact, the opposite had occurred. In fact, his terms and conditions were better than the relevant award. If Senator Seselja was a part-timer back then, he was something like 5.4 per cent better off under an agreement negotiated by the SDA. If he was a casual employee, depending on what sort of assumptions you make, he was anywhere between five and 11.8 per cent better off. As far as I can see, Senator Seselja has not come back into the chamber to correct the misleading of the Senate. I am disappointed about that because I have now got to raise the issue again. I think that when mistakes are made they should be corrected.
It has been a long time since Senator Seselja worked in the retail industry. Almost 20 years has gone past. I would like to give a little potted history of what has happened to wages and conditions, particularly in the retail industry, over that period of time, and what Senator Seselja's party has done over the last 20 years—or fractionally longer than 20 years. After World War II, there was a social compact between business and the unions, that they accepted the Australian industrial relations system. That broke down in the late eighties, with the election of the Greiner government in New South Wales. For the first time, that social compact was broken, and Liberal governments started the long, slow process to what finally ended up as Work Choices. They started reducing and removing the ability of unions and workers to work in the industrial relations system and started winding back all the hard-won conditions that unions had achieved for their members over the history of the Conciliation and Arbitration Act.
It started with Greiner. Then Premier Kennett in Victoria was elected. He went quite a bit further than Mr Greiner. He basically abolished the awards system in Victoria, so workers went from one day having a set of terms and conditions under awards to having basically a voluntary employment agreement. Again, all of those hard-won terms and conditions that workers had been able to achieve through their unions were suddenly thrown out the door in one fell swoop of legislation. Kennett went even further when John Howard was elected in 1996. He actually abolished the entire Victorian industrial relations system and handed it all over to Mr Howard, and we saw similar Greiner and Kennett events occur in other states. In my home state of South Australia, Dean Brown was elected, and he moved down a very similar path.
Unions in the retail industry were predominantly state based, and the reason why Senator Seselja is so mistaken is that he does not understand that little, basic principle. But, when the state governments started making these changes, the unions made a strategic decision to shift out of the old state systems into the federal system. It might be argued, 10 years later, that they had jumped out of the frying pan into the fire. But you had to look after and protect your members, and Keating had won that election in 1993, so unions made that change into the federal system.
The tragedy was that John Howard then won the next election, and we discovered that Mr Reith was Minister for Industrial Relations. He started to carry out the Greiner, Kennett and Brown type of industrial relations structure. He did not get as far as he wanted to go; let us be clear about that. Labor and the minor parties in the Senate were able to stop him from going as far as he wanted to go. But, again, he started that whole process of reducing workers' terms and conditions.
Then we come to 2004, and suddenly all John Howard's dreams have come true. Not only does he control—
Senator Farrell, I remind you to refer to people in the other place and former leaders by their correct titles, thank you.
Yes—former Prime Minister John Howard. He gets a majority in the Senate, and he is able to implement his perfect dream in terms of industrial relations. Madam Deputy President, you may recall the name of this particular product. It was called an AWA, an Australian workplace agreement. These AWAs removed all of the fundamental terms and conditions that workers had won over the entire history of the industrial relations system in Australia. For the purposes of the debate, I recount the sorts of things that were taken away under these Australian workplace agreements. Seventy per cent of workers lost shift loadings, 68 per cent lost annual leave loadings, 65 per cent lost penalty rates, 49 per cent lost overtime loadings and 45 per cent no longer had public holidays. That was the result of Work Choices for Australian workers.
I make this comparison between Work Choices and the decision of the full bench of the Fair Work Commission on the most recent penalty rate cut. Work Choices was a slow-moving product. There was no immediate change, not overnight. Of course, the Australian population woke up to Work Choices, and Prime Minister Howard was defeated in the 2007 election as a result. In fact, former Prime Minister Howard lost his own seat in that election. The Australian community understood the unfairness of Work Choices. But there is quite a bit of difference between what happened under Work Choices and what is happening now, following the decision by the Fair Work Commission. This is a cold and heartless decision, and 700,000 Australians will lose up to $77 a week as a result. As I said, Work Choices was a slow-moving change. This will not be slow. It is not contained. Whenever this decision is finalised, that is what is going to happen: there will be a dramatic effect on the income of people amongst the lowest paid in our country.
So, over that whole time, we can see a clear pattern in the way in which those opposite have dealt with industrial relations. Bit by bit, every time they got an opportunity, they sought to take away the terms and conditions of workers in this country. Unions, great unions like the SDA, have had to deal with those sets of changes for all that time. What did they do in those 20 years, since the time Senator Seselja was five or 10 per cent better off under his agreement? They kept working away to ensure that those workers continued to get those hard-won benefits.
I am not sure which particular Woolworths store Senator Seselja worked in, but the agreement would have covered it, and, if he were working for a Woolworths store today, his weekly rate of pay—I am not talking about the casual or the part-time rate—would be about $100 higher than the equivalent award. Not only that but there are guaranteed wage rises, nine per cent wage increases, locked in over three years; and higher junior rates of pay. Workers in the retail industry, for almost its entire history, did not get adult rates until they were 21 years of age. Under the Woolworths agreement they get the adult rate at 20 years of age. In terms of benefits, there is public holiday work, all voluntary; there are much better rostering provisions than apply under the award, and they take into account family responsibilities; greater compassionate leave, significantly higher than under the award; longer breaks of 15 minutes per four hours rather than the 10 minutes under the award; extra days of personal leave; better overtime provisions—I could go on.
The point of all that is that, over that 20-year period, those unions have sat down and negotiated with some pretty hard companies. That is one thing I agree with Senator Roberts about: you are dealing with pretty hard companies here when you are dealing with some of these national and international companies. But the unions have managed, over that time, to maintain the wages and conditions of employees.
If I understand Senator Roberts correctly, his complaint is that, when you look at some of these agreements and you look specifically at the rate of pay that people get for Sunday, it is lower than under other awards. That is true. He says there is something untoward about that. There is nothing untoward about that. That is the way enterprise bargaining has worked in this country for 25 years. Workers, through their unions, sit down with companies and negotiate about their terms and conditions.
I have just been through the Woolworths agreement to show just how much better off you would be under a Woolworths agreement than if you were under an award. What the employers in this industry who are not subject to enterprise bargaining agreements want to do is cherrypick these agreements. They say: 'There's something we like in this agreement, and we're going to take it out. We just want that bit.' For years the SDA heard this complaint from the small retailers that Senator Roberts was talking about, and we said, 'Okay, if you want the same arrangements as a Coles or a Woolworths'—I could go through a similar explanation with Coles—'if you want these terms and conditions, you pick up the totality of the agreement.' So the union in South Australia—the SDA, that great union that I have referred to—sat down with Business SA, representing all of the small employers that Senator Roberts was talking about, and they reached an agreement that gave them a lower penalty rate on Sunday in exchange for all of the improved benefits that you would get if you worked for Coles or Woolworths or one of these other employers. They said, 'This agreement is now open to any small business that wants to come and sign up.'
That was two years ago. How many small businesses took it up? A hundred in that two-year period? Ten? You might think 10. One? No, zero. Not one small business took up the offer to move to a Coles- or a Woolworths-type agreement. Why not? We asked the question: why not? It was because they were going to pay more than if they stayed under the award. So these people have stayed under the award and complained about the penalty rates on Sundays, saying they are missing out.
What does the full bench do? To my great disappointment, the full bench sides with these small employers and decides overnight to reduce the terms and conditions of penalty rates on Sunday for these workers, some of the lowest-paid workers in this country. The employers get what they want. They do not have to negotiate now about higher wages, better leave provisions, better bereavement leave provisions, better rostering provisions and better public holiday provisions. They do not have to do that. You might ask yourself: what is an employer who has done an agreement like the Coles agreement or the Woolworths agreement going to say? I will tell you what they are going to say: 'We don't need enterprise agreements anymore. We can just fall back to the award. We've got everything we want, and we can reduce the wages of our staff.'
You might have listened to Senator Xenophon—perhaps you did not—on the radio in Adelaide last week. What was his solution to this? His solution to this—and he may have changed his position—was to say, 'Well, let's keep all of the people who are under the award on their current terms and conditions, but any new employee goes to the lower rate.' Let me tell you—I have had a considerable period of experience in the retail industry—what that means. Most of these workers who work Sundays, let us be honest about it—except if they are in a Coles agreement or a Woolworths agreement—are casual employees. They will simply be replaced. They will not be called up. So not only will they lose their penalty rate; they will lose their job, if that is the solution that the commission finally comes up with. They will not be called anymore, because their rate is 50 per cent higher than somebody who would only get time and half. They will not be called in to work. So not only is it a cut in your penalty rate; you actually lose your job. So that is not a solution to the problem.
How do we deal with this problem that we are now faced with? There is only one way to deal with it, and that is to restore the penalty rates as they were. That is what our leader, Bill Shorten, has proposed to do. That is the right answer, and I am getting the impression now from reading the paper that all of the other parties are starting to come back to that position. If you do not do that, then there is no point to enterprise bargaining in this country in the retail and hospitality industries—there is no point whatsoever. No company is going to have a negotiation about an enterprise agreement if they get what they want through a reduction in the award. It totally wipes out 25 years of industrial relations history.
It is true that we are overturning a decision of Fair Work, but Labor has done that before, Deputy President. Can I remind you of this. It was done during Prime Minister Paul Keating's time. The unions had argued for a 12 per cent superannuation payment to workers in this country. To everybody's surprise, the full bench of the commission said: 'No. We're not going to award this. We're not going to support any arrangement to introduce improved superannuation.' The ACTU and the unions went to the government and said, 'We want you to fix this.' And, instantaneously, Prime Minister Paul Keating said, 'Yes, I will.' The decision was overturned, and we now have in this country the best superannuation scheme in the world as a result of that decision to overturn a Fair Work decision.
We need to do the same now. We need to reverse this decision. We need to overturn the decision. We need to restore enterprise bargaining to this country, and we need to get back the penalty rates that these workers have now lost.
The Fair Work Amendment (Protecting Take-Home Pay) Bill 2017 prevents the Fair Work Commission decision from coming into effect. I want to be very clear about why the Greens are supporting this bill and why we have led this debate. If I can in the time that I have got, I also want to blow away some of the myths that have been thrown around the chamber rather carelessly this morning. It does not reduce the independence of the umpire. All it does is prevent the commission from reducing people's living standards. It prevents people from being forced to go backwards, it provides a floor underneath penalty rates and it secures them as a safety net for the people who need them the most.
After this bill clears the Senate, the only really significant change that will occur is that some of Australia's most vulnerable workers will not be forced to go backward. The remarkable defence that we have heard of the Fair Work Commission's untimely and extremely unfortunate decision from some of those in the Liberal Party and One Nation—I will just concentrate my thoughts on the Liberals for the time being—have been just extraordinary and expose the psychology of the people who are defending the Fair Work Commission's decision.
Many people—particularly young people and particularly women—across this country rely on penalty rates to survive, to make ends meet. That means paying rent from week to week, putting food on the table or servicing a mortgage, and right now the rules of the Fair Work Commission allow the commission to reduce people's living standards and take them backwards. We think that that is beyond unfortunate, but it is something that this parliament can do something about today.
The politics of the debate are exquisite, and we have seen a caricature of Auspoll 2017 play out around this bill this morning. We have got the one per cent floating around on yachts in Sydney Harbour, tapping out submissions to the Fair Work Commission on why the people who will be serving their coffee and their cocktails when they make landfall should be paid less. That is the perversion here: Tories earning hundreds of thousands or millions of dollars a year saying that Australia's lowest paid workers are making too much money. They run the same arguments by the same blue bloods around the minimum wage, which is another matter that is obviously front of mind today. So that is your Liberal-National Party: the people on the most precarious forms of employment in the country, earning some of the lowest wages in the country, are making too much money, and that is why this decision should be upheld.
One Nation—goodness only knows. They have had three positions on penalty rates in three days. I have no idea what head or tail to make of Senator Roberts's speech from earlier that circulated amendments which he barely even glanced over. He spent no part of his contribution talking about penalty rates. He went on one of his fevered rants about the evils of the trade union movement. So they are utterly incoherent on this issue. If they end up supporting the bill, that will be great—it is another four votes—but we simply do not trust Pauline Hanson's party to look after the interests of the lowest paid Australians, and the shambles over the last couple of days has been an ample demonstration of why.
The Australian Greens took a commitment to the 2016 election to put a floor under penalty rates. I have got to say it was a bit surprising and disappointing that, at the time, we were mocked for it. I will go into a little bit of detail in a second. Within 24 hours of the Fair Work Commission decision being announced, Mr Adam Bandt, the member for Melbourne, who has led this debate all along, released our bill and wrote to the Labor Party, requesting support. Two days later Labor introduced their own bill. All right, whatever. What happened, though, when in the run-up to the 2016 election we warned that this was going to happen and the member for Melbourne, Adam Bandt, introduced the bill? Mr Shorten said, 'Oh, you don't need to do that, because, yes, there is a theoretical prospect that the commission may cut penalty rates, but what if alien life makes contact with earth?' Well, earth to Bill: the aliens have made contact, we have heard from a number of them this morning and, yes, a bill such as this is absolutely necessary and warranted.
The reason that we are doing this is that the Australian workforce is increasingly casualised. Many of these people are falling into an underclass. We have heard of the working poor: people working but in poverty, a precarious existence getting by from week to week. These are the people whose lives are on the table and under discussion this morning. There are not that many of them actually present in this debate, quite frankly. Every person who has spoken on this bill this morning is earning something in the realm of $200,000 a year, and I suspect that the people who are speaking in support of the Fair Work Commission's decision have never worked a day in their lives where penalty rates were actually determining whether they could make the rent or whether they would have to sacrifice something else.
It is a quarter of the Australian workforce. It is not an accident. It is a global dynamic to drive wages down and profits up. It is not an unfamiliar dynamic. The ACTU secretary, Sally McManus, who made a blazing speech to the National Press Club this week, pointed out yesterday that wage theft is a business model for too many employers—not all of them, obviously, but many. That is why we need these laws.
Casual workers are defined as those without paid leave entitlements that people in here, many of whom have probably spent their entire lives as a beneficiary, take for granted. This is temporary, part-time and self-employed workers accounting for around a third of all employment in OECD countries, and who are these people? Nearly 70 per cent of them are women. Sixty-nine per cent of all part-time employees in Australia are women, according to the Workplace Gender Equality Agency, and that is probably because for many women with kids casual work is the only option. Women are the majority of accommodation, food service and retail workers. That is who is in here. Not a lot of women have spoken up from the Tory benches this morning, you will notice. Interesting; it has been all blokes—mostly IPA muppets, but we will leave that till later. These people are largely voiceless and unrecognised in these debates.
Because of these inequalities that are already baked into the way that our economy, tax system and politics are structured, cuts to penalty rates are particularly cruel. We should not even be having this debate. This could have been handled in a cross-party way, but instead we have brought it to the Senate today.
As the new ACTU secretary pointed out yesterday, wage theft is a business model for too many employers—many but not all. There are plenty of good examples of businesses who have no interest in exploiting their employees or driving wages and conditions down. Senator Rhiannon and I looked one up in the run-up to this debate, the Eltham Valley Pantry in Byron Bay, who facebooked the fact that they had no intention of cutting their employees' penalty rates, even though the Fair Work Commission decision would make them legally entitled to do so. They have explained their reasoning for why they are doing that, and it is driving business to them. This is not an attack on employers who want to do the right thing by their employees. We need a safety net. We need a floor, not for the good employers but for those who see their employees as components, as business units, as costs to be cut no matter what. That is why we are legislating this morning.
The speed with which the Attorney-General chopped through the hours motion a short time ago meant that Senator Rhiannon could not bring this motion forward, but I just want to bring the Senate's attention to it. There was an amendment that Senator Rhiannon had tabled on the motion around our hours of meeting. We are probably going to sit until late into the night, and that is reasonably well understood by everybody in here. But here is the fascinating thing. There are a number of trade union campaigners who, in the wake of the Fair Work Commission decision, visited the premises of those who had argued the most fiercely that Sunday penalty rates should be cut, and guess what they discovered? They visited the hoteliers association, the master grocers, the Chamber of Commerce and Industry—this is mostly in Victoria—Clubs Australia, the Pharmacy Guild, the Australian Industry Group and a whole pile of tory electorate offices on a Sunday, and guess what they found? Their offices were all closed so that those people could spend time with their families and maybe go to a coffee shop, grab a cup of coffee and be served by somebody earning Sunday penalty rates. What Senator Rhiannon's motion did, somewhat cheekily but to the point, was move that we would adjourn without debate at 10.30 pm tonight if the bills listed are not done and the business of this place is yet to be conducted, and that we would reconvene on Sunday, 2 April 2017.
Some employers and people have argued that Sunday penalty rates should be cut, as Senator Paterson did, not that long ago. There is nothing special about Sundays anymore, yet all their electorate offices were closed on a Sunday when these campaigners visited. That is the scale of the seething hypocrisy that we are dealing with. It would be so interesting to take a straw poll, and it is a shame we cannot put it to a vote, as to how many on this side of the chamber would be interested in coming back here and working on a Sunday. I don't think there would be many takers, quite frankly. That is why we pay people a premium to work on Sundays or late into the night. That is what penalty rates are for.
I was waiting with interest—and I had to sit through Senator Roberts's contribution, which is rarely memorable but always a little bit strange—for some amendments that One Nation had circulated for us to consider. I guess imitation is the sincerest form of flattery: they appear to be basically cut and pasted from Mr Bandt's Fair Work Amendment (Pay Protection) Bill 2017, which is before the Senate. So thank you for taking the time to cut and paste out of our bill. Therefore, I do not have anything seriously critical to say about it. The bill seeks to protect workers, and I will just fill you in on the nature of Senator Roberts's amendments, because he was too busy slagging off the CFMEU to do so. I will tell you what the One Nation amendments seek to do. They seek to protect workers in the fast food and retail industry. That is great. The Greens have been campaigning to look after the fast food and retail industry workers for a while, and we welcome One Nation's sudden interest in these issues.
Obviously, we will not be supporting the amendments, because blasting amendments through on the same day is really not how business is done in here. These are actually quite complex matters and people's lives and livelihoods are in the balance. We will be referring our bill on these issues, that One Nation have at the last minute cut and pasted from, to a Senate inquiry, and Senator Roberts is very welcome to show up, if he likes, to hear the evidence for and against these amendments. We will be proceeding with them in the way business is normally done in here. Obviously, One Nation senators are welcome to show up at that, but we will not be supporting the amendments in this place today or the rather odd way in which they have been welded on to a tremendously important bill.
As I said at the outset, the politics of the way this debate has been conducted and the contributions of the tories and indeed everybody else in this chamber has provided a rather miserable caricature of the state of the debate around the economy, the purpose of the economy and the way that we support and look after everyone in this country. We should look after them no matter how much they are earning or which private school they may not have been able to get into or their situation of employment.
I find it incredibly galling, revealing and illuminating that the same people who are arguing that Australia's lowest-paid workers deserve a pay cut and that it should not be the business of this parliament to put a floor under those pay and conditions are the same people who argue for the maintenance of capital gains tax so that they can continue amassing property portfolios. They are the same people who argue that negative gearing should stay in place so that they can just tuck away and capitalise their income in multiple property portfolios. They are the same people who argue that superannuation should basically be yet another tax shelter. They are the same people who are demanding tax cuts and actually got them last year for people in the highest tax brackets. They are the same people who later on tonight are going to be arguing for a $50 billion tax cut to corporations. It is a vicious, deliberate double standard in play, and the funny thing is that they only ever call it class warfare when we fight back. Call it what you will, but today we are fighting back, and when this bill is committed to a vote it is very likely to pass. Get used to it.
It being 12:45, debate is interrupted. Pursuant to the order agreed to earlier, the questions on all remaining stages of the Fair Work Amendment (Protecting Take-Home Pay) Bill 2017 will be put without debate.
I seek leave to move an amendment that I foreshadowed in my speech in the second reading debate to restore penalty rates for all workers, including those whose rates were stripped by union deals.
Leave not granted.
The question is that the bill be now read a second time.
Question agreed to.
Bill read a second time.
As I have said about section 18C of the Racial Discrimination Act, it is not in keeping with what I believe the majority of the people want. In listening to talkback radio and to other people who come up to me in the streets and in my office, people want what is right. They want to be able to have an opinion. They want to be able to voice their concern. As I said before—and I have said it repeatedly—about the word 'offend', not everyone likes the way other cultures dress, their music, the way they dance or whatever. If you make a comment like that, that other person may be offended by it. Is that enough grounds to take them before the courts for racial discrimination? I do not believe so.
Let us put it in the true context of what it is. Just two weeks ago, I had Bill Leek's widow and son come to visit me, in support of my stance against 18C. Johannes saw the stress that his father went through. His widow was so distraught about having lost her husband, and so she should be. They saw the stress that he was put under, with the challenges upon him, and it did have an impact on his health. They came to see me because they knew my stance against 18C and they encouraged me and others to stand up for this. Johannes said, when his father drew the cartoon, it was to send a message of what was happening in our society. It was not meant to be derogatory towards the Aboriginals—not in the slightest. He was basically saying, 'This is what is happening in our society; this is what is happening in some communities,' and that was his way of expressing it.
Isn't it funny that people who objected to the cartoon had to go out and try and find some people to complain about it? They actually went out of their way to find some people to complain about it. Is this what it is about—that you have to go and find people? What I am seeing these days in Australia is that those of the left with the socialist views are encouraging people to purposely go out and complain. I am hearing from a lot of different groups and organisations and people from different cultural backgrounds that they are not offended by this cartoon. If they are, let them stand up on their own two feet. Let them go and make a complaint. Do not find other people to go and make complaints for them and continually stir the pot. If I say anything that is derogatory or not in keeping with what the average person in Australia believes, they will judge me at the polling booth. That is what they have done and that is why I take my place here in this chamber with three other senators.
Freedom of speech is so very important. Criticism is not racism. This is all about having a debate about these issues, having your say and trying to find the right answers—and that is all Australians ask. Australians are not racist. Australians are very proud of their culture, their country and their heritage. Most Australians, including me, welcome others who have come here to this country for the freedom, the life that we have and our way of life. It is so precious to each and every one of us. Surely, we can all work together and in harmony and stop this rubbish that is going on in our country, pushed by the left side of politics.
I plan to make just a relatively brief contribution to this debate. It is a welcome opportunity, but I think enough has been said by others in the public domain and, indeed, in this debate on the Human Rights Legislation Amendment Bill 2017. There have been many views expressed throughout the debate, both publicly and here in parliament. I guess that is the beauty of what we are debating here—it is about the ability to express one's views freely without being impeded unnecessarily. Free speech is a wonderful thing and it is a cornerstone of our democracy. Many have said it and I am a firm believer in it. It is a quality that we have in this country. Freedom of speech is a freedom we have in this country that many others around the world envy because they do not have it. It is part of what makes this country so strong, in my view.
I want to take issue, though, with a few things that have been said during the debate. The point has been made that this is not an important issue. Prior to the debate coming on this week, a number of senators and members in the other place indicated that they felt that this issue was not important. I, fundamentally, reject that: I think it is an important issue, and so do many other people in the community—those who support it and those who are against it. It is an important issue to debate and, indeed, to send the message that this is not an important issue, I think, is a bad one. It is a message we are sending to the QUT students. It is a message we are sending to Bill Leak's family. To tell them that the plight of their suffering through the long-drawn out process that they have been subjected to is not important, I think, is a terrible message to send.
So it is important, but it is an issue that is as important as the other issues that we have been dealing with. We have been looking at issues this week like company tax reform, tax breaks for small business to encourage investment. We had childcare reform last week. We have been dealing with issues of health; education; foreign policy; jobs and employment; energy security, and penalty rates—all these things have been debated in this place. What has annoyed me is that those people, who have been claiming that this issue is not important, have been trying to characterise this debate as the only thing on the government's agenda, and that is just not true. It is one of many things that have been debated and one of many things that people in our party room have been indicating they would like to discuss. I am glad we are doing that, along with all the other things that we are going to be spending a lot of hours tonight and, potentially, tomorrow debating. The government can walk and chew gum, and just to prove that—
Senator Cameron interjecting—
We can walk and chew gum, Senator Cameron, and I appreciate your contributions all the time. However, you know, we passed 12 bills through the Senate on Monday alone and, since the election, I am advised we have passed 83 bills. So to suggest that we cannot do anything—
Now you are judging the government by how many bills you pass!
Well, passing bills is what we do here, and reducing regulation is a good thing too and many of those things, I hope, will do that, Senator Dastyari, through you, Mr Acting Deputy President Back. Some of the reforms we passed this week will make the childcare system better for people on the lower end of the income scale and our welfare system more sustainable through savings measures. But, as I say, to try and characterise this debate as the only thing on the government's agenda is mischievous and misleading. As I have said, it is not our only platform.
During the debate, I was interested to hear of the test that is being applied to things that this parliament should deal with—that is, whether these issues are being discussed at barbecues. There are many things that this parliament deals with that people on the street do not discuss. There are issues—the mechanics of government, small reforms, streamlining of legislation, removal of red tape and regulation—which get dealt with here that the people of Australia do not sit at home and discuss. Just because they are not discussing it in every household and at every barbecue as a reason not to deal with this, is, I think, not a very good threshold for us to apply to the work that we should be doing in the Senate.
The point that is being made in relation to this legislation making it easier to be a racist in this country through supporting these reforms is a disappointing argument and, I think, a cheap one. The point was made in this debate in the previous contribution by another senator that Australians are better than what is being reflected in this debate. I suppose that is the point that I would like to make as well. Through the debate, those who are opposed to reform seem to be making the point that we need to protect Australia from itself—protect Australian people from themselves. I have to ask those who oppose reform: don't we trust the Australian people?
It was the same with the marriage plebiscite legislation: denying Australians the right to have their say and conduct a debate in the community. We wanted to prevent that from happening, because we did not trust the Australian people to do it in a fair and civilised manner. That is a pattern I do not support. I do have faith in the Australian people, and I think Australians can conduct themselves in a way that is fair and not going to bring about hatred and civil disputes. I think that we should, as a Senate, have faith in the Australian people. That is what is good about our country: the decency of the people who live here—and that is what the majority of people in Australia are like. Of course there is always the minority, but we have to have faith in the majority of the people who live here.
For those opposed to reform, I just want to know why they do not have faith in the majority of Australians and why we need to regulate the behaviour of Australians when it comes to every facet of life. We are not a communist country, and we should not be trying to control every element of people's lives and everything that occurs in society under the guise of trying to protect people from themselves.
As I said, there is a minority and, yes, we need to deal with them, but I do not think they should ruin it for everybody else. We have to, as I say, have faith in the majority, and that is what I believe these reforms intend to do. They will deal with those people who cause the problems, those who intend to do harm and racially vilify. I have to take issue, though, with a point made by Senator Watt in his contribution—I believe it was yesterday. Because the complainants lost in the cases that have been cited in the debate quite extensively—QUT and Bill Leak—therefore the laws are working and therefore they do not need to be changed. The point I make in response to that is: I have grave concerns about the way these processes went on for as long as they did. That is what many people are upset about. That is what the people who were subject to the complaint were upset about, and I think that is why we have having this debate. To have these drawn-out emotional rollercoaster events taking place in the lives of the targets of these complaints—I believe the changes target those problems and prevent them from happening into the future.
It is about protecting freedom of speech, preventing vexatious complaints and protecting people at the same time from the racial hatred that every single person in this place does not want to see in our community. It is the behaviour we all hate and the behaviour that we want to see stamped out in our community. And that is what is caught in the provisions of this bill.
I mentioned in my first speech that I married someone from another country. My wife and her family, when they came to this country, could not speak English. They did not have any assets. They had the clothes on their backs, and that was effectively it. My wife's family, when they came out here, left a country, Albania, where they were not allowed to speak out on anything—on matters of politics, matters of religion or the most insignificant matters that we in this country can speak about freely, without fear of any repercussion. So I thought I would take the provisions of this bill and have a discussion with them. They have more insight into what it is like to be subject to racist slurs. Coming from another country and having had a poor grasp, in their initial years here in Australia, of the English language, they know what it is like to be subjected to racist slurs and comments of hate. So I thought it would be a good idea to have a discussion with them about the changes. Even more recently, though, I have to say they have been subjected to comments from members of our community, sadly, that many of us in this place would say were not the right thing to say to people from other countries, about their accents and where they have come from—'Go back where you've come from,' and those sorts of comments.
In deliberating on that, as I say, I thought it was important to run past them the provisions of this bill: do they feel that this country should continue to regulate what people say to the extent that the current provisions of section 18C of the Racial Discrimination Act do? Because my extended in-laws—and there are now many of them in Australia—have been through more than I and many others in this chamber have ever been through, I valued their opinion, just as I value the opinions of those who have come into my office and made their views known, or at least sent me an email or made a phone call. But my in-laws, who have faced racism, slurs and derogatory language and who lived in a communist country where there were restrictions on things that you said and did, support the changes that we are putting up here. They have followed this debate with interest, probably because their son-in-law is a member of the Australian parliament but also because they take an interest in public life, and they support the changes. I take on board what they have to say. As they have been the subject of racial slurs, I think it is important to hear from them what they had to say. I was heartened by what they had to say. The other point they made to me when I consulted with them was that perpetuating these restrictions, the restrictions they left in their home country of Albania, is something they did not want to see.
On that point, it was concerning to read in The Australian today about the proposal from the opposition to potentially extend the scope of 18C to religion now. According to an article by Chris Merritt in today's Australian, the opposition said:
… there was scope to reassess extending section 18C because the debate over racism had extended to religion.
I have grave concerns, and I hope sincerely that it is not the case that they plan to not only try to prevent the government's legislation from passing through this place but extend these restrictions on free speech to make us even more of a nanny state. I think that would be the worst outcome for this country.
We do not need to be wary of the citizens of this country. We do not need to take the nanny state approach and constrain personal expression here. Contrary views can sometimes be confronting, as we know in this place, and can challenge the opinions we hold strongly. As I say, they can make us uncomfortable and can be a cause for us to revisit our strongly held views and rethink what we might believe is right. But that in this country, I believe, is a normal part of discourse in our society which we should stand to protect and uphold.
In this particular process, I think it is important that we consider what has gone on in our community over the last 45 years, with people engaging in this process. I take the point that Senator Duniam made that people are not talking about these issues everywhere, but what we found in the Parliamentary Joint Committee on Human Rights' extensive committee hearings over the new year period was that people who really care about this process are talking about it. Something that became very clear was that there would never be absolute agreement, and that has been reinforced by that committee and also by the recent Legal and Constitutional Affairs Committee hearings: we will not achieve agreement on this issue. What we have achieved is a wider discussion.
I have said before in this place that I think the process of the joint standing committee was truncated and rushed way too quickly. An issue had been raised about how the Racial Discrimination Act operated. Instead of taking a long-term, wider consideration of the process, the government tried to rush it. I question to this day why it was so necessary to have this particular process over the new year period, the end of January and early February, when community organisations were unable to have the time to really consider what the government was putting forward to the community. This issue had been raised a couple of years beforehand, there had been some community discussion and it was taken off the agenda. In fact, we were told by the government that it was no longer part of the current process to go forward with that. That was in 2014, I believe. But there was this rush to have a committee process, which can be, as you and I agree, Mr Acting Deputy President, the most valuable way for the Senate to work. The committee process is our link to the wider community. So to set up the joint standing committee process and then, I think, to have unseemly haste in the opportunity to talk with people was a disappointment to me.
But, even allowing for that, we had the most valuable interaction with organisations, legal professionals and people in the wider community who cared about the Racial Discrimination Act. Most importantly to me, there were people who were personally impacted by racial discrimination. Some of the most confronting evidence we had in every state was from people from different ethnic backgrounds who had actually been the subject of racial discrimination. Some were Aboriginal and Islander brothers and sisters, in my state of Queensland and in the Northern Territory, where we had gut-wrenching evidence about what it meant to face daily discrimination. We also had it from a range of different people who have different backgrounds but talked about the hope and the feeling that Australia would provide a welcoming and safe place for them and how they coped with the range of racial comments and racial behaviours that were, in fact, damaging and harmful.
Did all of those people use the Racial Discrimination Act? No, they did not, but most of them knew it was there. In terms of the reinforcement and the security that this act has provided, it is absolutely essential that the message is given clearly to our whole community that we understand the dangers of racial discrimination and that the parliament, the government and the society of Australia understand that and will put in place processes that will protect people's personal safety and their emotional security.
Given that, the changes that we have now seen recommended by the very short Legal and Constitutional Affairs Legislation Committee inquiry have been surprising. Those of us who were involved in the joint standing committee process understand that whilst there were clear areas of agreement—which is clearly on the record in Hansard and in our tabled report—there were a range of issues about which there was no agreement in the committee. That was put on record in what we call recommendation 3, which said that these issues were not agreed and that there were individuals or groups of people in the committee who had these views, and we listed them. However, in no way could that be seen as an endorsement of every issue listed.
When the Legal and Constitutional Affairs Legislation Committee was again convened extraordinarily quickly—in fact, I have rarely seen the Senate act so quickly. It is amazing how fast this place can operate sometimes. It is not often, but when they really want to do it they can move. We had this legal and constitutional affairs committee put in place so quickly on the basis of the joint standing committee. It was actually said in the legal and constitutional affairs committee that, as these things had been in the joint standing committee, we were moving quickly—very quickly—to impose a new regime. In that new regime, it looked particularly at those magic words about humiliation and at the way that people can feel when their race is a reason for abuse, isolation or damage. We saw those magic words, and the core recommendation that has come to this parliament, in this very quickly drafted legislation, is that we remove those words and we replace them with others.
Also, in the other schedule there are a whole range of administrative changes, most of which the joint standing committee agreed on and most of which people in this place and in the wider community agreed on. But, to my disappointment, once again the government have selectively chosen what they will bring forward out of a committee report to legislation in this place.
The joint standing committee worked extremely hard to come up with a range of administrative changes that we think responded to the evidence not only of the Human Rights Commission itself but from people who had dealt with the Human Rights Commission and from people in the wider community who understood how the process should operate. But did the committee, did the parliament and did the government pick up all of the recommendations? No. They had to throw in a few things that were not even on the record during that period of consultation in January and February. That is what worries me. It is again raising expectations, raising the issues and then selectively coming forward with ideas, with recommendations, with which there is not agreement. While, as I said when I started, we will never get full agreement, it probably would be judicious to consider, when moving on such a sensitive piece of legislation, trying to get as much agreement as we can.
As everybody knows, and I will not go over the same information, we reject the change to 'harassment' in the definition of discrimination that has been put forward in this report. We think the words that are in in place—we think the understanding that can be better in place—are already available for the community. We have judicial precedent which points out how the act will work. We have a process now where we believe the various responsibilities of discrimination concerns and aspects of free speech are effectively balanced in this legislation.
In terms of the administrative reforms, the dissenting report is quite clear on the areas which were on record during the legal and constitutional affairs committee which we do not believe effectively fulfil the concerns about administration. There are a number of key issues there which have been covered by other speakers, which I will not go into.
I just want to add something about the process. This is a debate, and I never shy away from having debate and discussion both in this place and in the wider community, but I truly believe there has been a noxious environment created around this issue. The debate has been impacted by various statements by media and by conflicting statements put out there, which has led to more confusion in the community—and in fact not only confusion but fear, distrust and, in some cases, anger.
I am saddened that, if we are genuinely going to look at legislation, if we are genuinely going to gather together people who care about an issue and have them have the respect and the trust to exchange issues, this has not been a good process, because people in the community have been given mixed messages. I think that, no matter what happens out of this debate, the issues around the racial discrimination legislation will continue to hound and confuse.
One of the elements that were not picked up by the legal and constitutional affairs committee was a jointly agreed recommendation that talked about the need for more education programs and for more interaction between the commission and the wider community so that there would be clear understanding about what is in the legislation and how it would operate and to remind the community that this system was not put in place as a judicial system; this system was put in place as a mediation and conciliation system. It was a very clear process. In the racial discrimination process, the idea was that, when there was concern or feelings of hurt, people would have the opportunity to come together and to work together to come up with an agreement. This was offered and continues to be offered around issues of an apology and acknowledgement. That was the intent of the system. What we should be doing in this place, with the support of the community and with the support of the commission, is to remind the community that that was the intent. It was not set up to be judicial; it was set up for mediation, and that I think is something we have lost.
Whatever happens in this debate, we need to ensure that there is that community discussion and an awareness and education program and that people can have genuine trust that one thing that should bind us together is a rejection of any element of racial discrimination. That should be the answer that we come up with in this parliament.
I do not mind standing here and saying unashamedly that I am a freedom lover. I believe that there should be less government. I believe there should be lower taxes. I think there should be more self-reliance by every member of our community, that we should have freedom of thought, freedom of worship and freedom of action. But action, of course, has consequences. That is why we have the rule of law. But some laws are just plain wrong, because when they were considered no-one anticipated how they would be misused and abused to corrupt the original intention. Section 18C of the Racial Discrimination Act is one of those examples. In fact, it is the quintessential example of bad law, of law that, no matter how well intentioned when it was formed and brought in, has been misused because it is subjective and it is oppressive and because the process attached to investigating it is absolutely rotten to the core. So I support the government's changes contained in the Human Rights Legislation Amendment Bill 2017. Belatedly, the government has been dragged—kicking and screaming, I should say—to dealing with the misuse of section 18C of the Racial Discrimination Act.
The key offence of section 18C is that it creates an offence for insulting or offending someone else. It means that the complainant does not even have to be insulted or offended for themselves. They can take insult and offence on behalf someone else. That is simply preposterous. It is akin to me saying, 'I am sorry, I am going to lodge a complaint and drag someone through a tribunal, court or legal process because I think you might be offended by what someone else has had to say.' I regret to say that I could not do that through section 18C of the Racial Discrimination Act, because apparently it only applies to some races. It does not apply to everyone, because we have had Senator Leyonhjelm lodge a complaint about being called an angry white man, but that was dismissed. I can only imagine if, instead of white, there was another colour used or if it was about a woman that would find its way into the complaints tribunal. I do not have any doubt about that. Even the process attached to these complaints—spurious complaints and subjective complaints—is rotten, because it only applies to certain people in our community. That much is very, very clear.
We have to ask ourselves how we can justify the misuse of section 18C of the Racial Discrimination Act, which has been applied in such a blunt and unjust fashion in recent times. I have heard no-one in this place or out in the broader community who is able to justify its misuse in the case of the students from the Queensland university. No-one can justify it, because it is rotten to the core. We had a circumstance where some students walked into an unoccupied computer lab in a Queensland university. They were told to go, because their skin colour and ethnicity were wrong. They then went onto Facebook, where one wrote, 'Fighting segregation with segregation.' Someone else said something along the lines of 'where's the white supremacists' lab?' They may be comments that people do not like, but the person who kicked them out decided to this was a path to profit and lodged a complaint saying they felt insulted and defended, and seeking $250,000 worth of compensation for booting some white kids out of an Indigenous lab. That is an injustice, and the fact that it was entertained by those people in the Human Rights Commission for many years—they did not even tell the people who were the subject of this complaint for about 14 months—is an indictment of the process. It is an indictment of Professor Triggs and her comrades in the Human Rights Commission, who have done an unbelievable disservice to people in this country. And still they appear at Senate estimates doing the Pontius Pilate: washing their hands of it and saying, 'We've done nothing wrong.' They have done a heck of a lot wrong. They have done an unbelievable disservice. The simple fact that these students, the ones who did not pay to Ms Prior the $5,000 compensation which was her price for go-away money, had to engage lawyers and fight this fight and battle for three years and had to go to court to have it dismissed. Those on the other side of this chamber say, 'That proves the process works.' Clearly, they have never had to fund their own court defence. Clearly they have never been dragged through the courts, have never had to enter into mediation and engage lawyers on such spurious actions. It is debilitating. It can destroy people's confidence. In the case of one of these Queensland university students it destroyed his desirable career, because he thought he would be forever labelled a racist.
Everything that is wrong with section 18C has been demonstrated by that case. Yet those on that side of the chamber do not want to know a thing about it. They are in denial, and that is part of the problem we have in this country. We have a group of people who are using laws like section 18C, their own denial and their own compartmentalisation of politics as a method of shutting down debate, of shutting down discussion and freedom of speech, of denying freedom of choice. I lay this directly at the feet of the left side of politics, not in a partisan political manner but by saying that their desire to pursue identity politics and not to see Australians as one homogenous group but to compartmentalise them into people broken down by differences of race, religion, gender or sexuality has done our entire country an enormous disservice. They have cultivated a culture of victimhood, an ideology where there is a grievance industry perpetually looking to be outraged, to stifle others from pursuing what I think are very reasonable contributions to public debate.
There is a problem with that, of course. Those on the left side of politics should be very careful because, whenever you are feeding the crocodile all the things you do not like, eventually you run out of them, and the crocodile of political correctness and victimhood ideology will ultimately consume you too. Within that culture of leftism, where they are identifying victims, there is always going to be a hierarchy of victimhood, and, as I said in my maiden speech in this place, we are going to be forced to choose whose rights trump other people's rights, which rights should prevail. That is exactly what we have got happening here. The culture of victimhood is about some rights subjugating others, and it is doing a disservice to our entire community.
Section 18C clearly needs reform. I have sponsored two bills in this place that were very simple bills to remove the two words 'insult' and 'offend' from the section so that there is less subjectivity. But the government's bill in some ways goes even further, in the sense that it also reforms the process attached to investigating complaints. I think that is a very worthy step forward, but there are also some problems with the government's approach, which I will be seeking to amend during the committee stage. We need to stop section 18C effectively being a 'hurt feelings' test. We need to stop it from being used, or misused, to bludgeon legitimate debate into submission. We need to change it to stop it being used as a method of profiteering by some sensitive snowflakes who claim, whether correctly or not, that they have been upset or offended or insulted by something someone else has to say.
These changes are necessary because of the evidence of the misuse of section 18C in recent years, not only in relation to the Queensland University of Technology students but also in the case of the late cartoonist Bill Leak being taken to the tribunal and having to defend himself. And we had one of the human rights commissioners touting for business, seeking complaints on behalf of the grievance industry. We rightly outlaw touts on the racetrack. I do not think they should be able to tout for the discrimination industry either. That hangs around Mr Soutphommasane's neck. It is a yoke that he will have to wear. He may defend it all he likes, but it is absolutely wrong. So the procedural changes have my support absolutely.
The bill goes even further than I wanted to in respect of the removal of 'insult' and 'offend'. It also wants to take 'humiliate' out and replace it with the word 'harass'. I understand the intentions of the government in this space, and I will support it, but I would like an amendment about the definition of 'harass'. According to the government's definition and some of the things it is putting forward, 'harass' can mean a single instance of a social media post or something like that. I understand that sometimes politicians move in a parallel universe, but I went through a number of international dictionaries, and 'harass' has a slightly different meaning than the one the government is inserting into this bill. It is all about repeated actions. The definition of 'harass' in the United States is: repeatedly making small-scale attacks on an enemy. 'Repeatedly' is the key word there. It is not a single instance, which is where the government has got this wrong. That definition goes on through any other dictionary that is there. It is all about continually or repeatedly having an action take place. So this bill needs to be amended—and I will be seeking to do so in the committee stage—to redefine 'harass' so that the fact that someone has put up an unpleasant Facebook post or said something on a single instance will not constitute harassment. This would bring it much more closely into alignment with a legal definition of harassment, rather than a political definition of harassment.
The second amendment that I will be seeking to introduce is what I am describing as the 'truth is a defence' clause. At the moment, the truth of a statement is not actually considered by the Human Rights Commission, even in the amendments to the process that have been put forward by the government, and nor is it actually part of this act or the Racial Discrimination Act itself in terms of the consideration by those who are rendering judgement in a legal sense. I think we need to have an amendment—which I will be proposing later—that says that section 18C does not render unlawful an act if the person who does the act proves that the act carries an imputation that is substantially true. This will enable someone charged or being investigated under this act to say, 'What I said was substantially true; these things took place; these are the facts surrounding it,' and so the ordeal of the process can be dismissed almost immediately by the proving of those facts, or, if the Human Rights Commission continues to be biased and twisted and seemingly committed to perpetuating the grievance and victimhood ideology, when it gets to a court, a judge can go, 'Thank you; we accept the truth of this defence.'
I think they are very sensible changes, and I hope the government will consider them, because in the end our responsibility is to ensure that our legal system and the framework that we are imposing upon people act in the best interests of our nation.
I close by saying that the reform to section 18C does not give people licence to go out there and egregiously cause offence. It is not designed to allow hate speech, as those on the other side want to characterise it. There are so many times it has been misused by those who are prepared to attack freedom of speech, by making things up, that the whole debate—I have to agree with Senator Moore—has become a bit toxic around this issue because of the alt-Left ideology that is out there and the fake news that they are putting forward. The simple fact is that, until recent times, section 18C was rarely, if ever, used, but now it is being used as a weapon of mass destruction in the battle for freedom in this country.
Oh, my God.
It is a shameful indictment of those who cultivate that sort of industry—
Honourable senators interjecting—
I can hear some of the chickens cackling away over there, Mr Acting Deputy President Marshall.
Don't insult chickens!
Yes, I apologise. Chickens are a little smarter; I accept that, Senator Macdonald!
Senator Hanson-Young interjecting—
Senator Hanson-Young, you must not intervene in the Senate's proceedings from that position at the back of the chamber.
It is very true. It is funny; some people have been here for so long, they have been institutionalised, but they still do not know the standing orders. It is quite shameful. I thank you for pointing that out to Senator Hanson-Young, who has not graduated yet from the University of Adelaide school of politics, I think.
Nonetheless, the issue is that section 18C has been misused in recent times. I am yet to hear anyone in this place defend its misuse against the Queensland University of Technology students, and, if you cannot defend the use of a law, it is time to amend it. That is why I support the government's amendments to section 18C. I hope my amendments will be successful, but, if they are not successful, I will still support the bill; and, if the bill is not successful, I look forward to having a debate about simply removing 'insult' and 'offend' from section 18C, as per the bill that I have introduced into the Senate on two occasions. Thank you.
I want to contribute a few words to this debate, mainly in my role as Chair of the Legal and Constitutional Affairs Legislation Committee, which inquired into this piece of legislation on behalf of the Senate. This, of course, is not a new issue. It is not a new proposal even. I remind those who might be listening that the coalition went to the 2013 election with a commitment to either abolish or substantially review section 18C of the Racial Discrimination Act. Senators may recall that 18C became almost a household word following the prosecution of a columnist, Mr Andrew Bolt, under section 18C of the act in 2011. At the time, the then Prime Minister said that it was the coalition's view that freedom of speech is very, very important, and it was important to ensure that we did not have racism in this country. Mr Abbott said, on behalf of most coalition parliamentarians at the time, I think, that we believed that Mr Bolt should not have been prosecuted under that section. So this issue has been around for a long time, but particularly since it hit the headlines at the time of 'Boltgate'.
Following the 2013 election, the coalition did indicate that there would be legislation introduced into the parliament that year to ensure that the Human Rights Commission carried out the role that it was designed for. It was the view of the government then that the commission was being too narrow and selective in its view on human rights. At the time, the government said that it was going to enact some structural reform that the commission president herself had been for looking for.
My only regret is that it has taken this long to get to a review of section 18C. I pause to think what would have happened had the government pursued its intentions back in 2014, rather than delaying till now. Perhaps Mr Leak's untimely death might not have occurred. Perhaps the university students who were dragged through an intolerable couple of years of their lives might not have been in that predicament, had the government moved on that review following the 2013 election, as we had indicated at the time. I understand the reasons for that, but there was clearly building, within the Australian community, an understanding that 18C could not stand, because of the way it had been interpreted in the past. This was reinforced by the QUT students case, the facts of which Senator Bernardi has just mentioned and which I will not repeat. But to most fair-minded, ordinary, average Australians—the reasonable Australian—that was an outrageous abuse of power by the Human Rights Commission, and it drew attention to the need for reform.
It was such that, as Senator Bernardi said, he introduced a bill that was co-sponsored by—from memory—12 or so other senators, of which I was proudly one, to remove the words 'insult' and 'offend' from section 18C of the Racial Discrimination Act. That was, as I recall, a bill that had the support of a number of government senators and a number of the crossbenchers. I am fairly confident that I can say Senator Leyonhjelm was one, and I suspect Senator Hinch might have been one of those who co-sponsored that bill as well. It was really the outrageous application of 18C in the QUT case that caused that coming together of minds that saw the need to change.
One of the most outrageous actions of the Human Rights Commission in the QUT case was, of course, that a number of young students were accused of racial vilification in what I think most Australians would think was a fairly simple comment—again, Senator Bernardi has given the details of that—but these students were not even told about it for some 18 months. That defeats one of the basic principles of natural justice: if you are accused of something, you must at least be told about it and must be given the right to mount your defence. In the case of these young students, they were not even told about it. So, for 18 months, they lived their lives unaware that they could be dragged before the Human Rights Commission and, worse, they could end up as respondents in a lawsuit for $250,000, which none of them, as law students, would have had.
In fact, one student, when he did first learn about this, was so petrified at the prospect of having to pay $250,000 in damages plus legal costs that he took the easy way out—and I do not blame him—and paid $5,000 go-away money, just so the complainant would not proceed in a legal suit against him. The others, fortuitously, decided to fight it, and in that they were assisted by one of Australia's best senior counsels, Mr Tony Morris, who, as I understand it—I am not privy to this, of course, but I understand from news reports—did the work for free. All congratulations go to Mr Morris for standing up for the right of freedom of speech by helping these young people.
The Human Rights Commission, I repeat, for 18 months did not even tell the people being accused that they had been accused. In that intervening period, the tracking of some of the evidence that may have been available about emails that had passed from one party to another party to another party had been lost. Of course, when the subsequent civil lawsuit got to the courts—these are my words, not the judge's—the case was laughed out of court. I understand that costs are being awarded against the complainant—unlikely, though, ever to be paid. That is the background to this whole sorry saga. The QUT case particularly galvanised public support for the move to have some review, some redress, some amendment and some further consideration of 18C.
And then we all know, because it was in relatively recent times, the Bill Leak cartoon—a very graphic cartoon, a very telling cartoon, not a racist cartoon at all. No-one could suggest that that was racist except the Human Rights Commission. One of the commissioners—although he denies it and has done so at a couple of the committees that I have presided over—it is clear, was letting people know that if they were offended they should contact him or contact the Human Rights Commission. If they did, he then made the point, rightly, that he was not the one who determined it, but his colleague the President of the Human Rights Commission would become judge and jury of a complaint which one of the commissioners at best advertised and at worst encouraged to be made. No matter where you are in Australia—other parts of the world might be different—no-one could consider that that was fair and proper practice.
Hence, the government, somewhat belatedly, but better late than never, some might say—although I am not sure that Mr Leak's family would say that—has brought forward legislation to address this particular section. But it did not do it overnight. The government set up an all-party joint committee of the parliament that deliberated—I think—for over two months, had a number of meetings, assessed the evidence, read all of the submissions, discussed what the committee's conclusion should be and came forward with a very good report under the chairmanship of Mr Goodenough MP. The committee decided to take the view that there were several ways that this could be addressed and gave the government—because they were reporting to government—the option of several ways to address this. They also made some very sound and strong recommendations as to the process that should be followed, some of which, I have to say, Professor Triggs had spoken about in one of the estimates committees before which she appeared. And so the government considered that report that had been carefully put together by members of that committee and came forward with a piece of legislation which was then referred, as I said earlier, to the Legal and Constitutional Affairs Legislation Committee, which I chair, for a brief look at that particular bill being proposed by the government.
It was not a terribly complicated piece of legislation from the government. It had been, as I said, spoken about for almost four or five years. Everybody had argued it back and forward. The joint committee had looked at it over a couple of months or more. And so the Senate referred the bill, when it came to this chamber, to my committee to have a quick look to see whether it was an appropriate bill and one that should be supported by the parliament.
The committee did call submissions quite quickly. We were not really interested in the substantive issue of 18C, because another committee of this parliament had already spent two months going through that in very fine detail. We wanted to look at some of the actual provisions of the bill and to see if there were suggestions that could be made to improve the bill, understanding that it was the government's intention and the government's prerogative to bring a bill forward as the government saw fit. The committee did take evidence over the course of last Friday morning and had a number of written submissions, and we relied heavily on the hundreds of pages of Hansard evidence given in the other parliamentary committee that had looked at this very carefully.
I should mention in passing that there was some complaint that not everybody who wanted to appear before the committee was able to appear. The Institute of Public Affairs was one of those. They wanted to come and appear, but the committee said, 'No, we've selected a narrow group of people to address the important issues, and that's what we're going to do.' We had the Human Rights Law Centre or the Multicultural Legal Centre—I have got it somewhere here in my notes—and they wanted to bring along an Indigenous group. The Labor Party made some big issue about that. These groups had all had the opportunity to put their point to the other committee, and my committee came to the conclusion that, if you invite groups of people knowing that there are different groups of those people who have one view and others that have another view, you start repeating what the previous committee had done. So we decided to restrict it.
The committee found that the bill would make overdue reforms to the Racial Discrimination Act, strengthening the protections against hateful speech based on race, colour or national or ethnic origin on one hand and at the same time enhancing the rights of freedom of speech that all Australians enjoy.
In its consideration the committee noted that the term 'harass' had been recommended by the joint committee that had dealt with this committee for some time. The committee thought that using the term 'harass' was an appropriate broadening of the scope of the section in a way which did not impinge upon legitimate freedom of speech. The committee went on to say that some of the recommendations of the joint committee report included many that were instigated at the request of the commission itself to improve administrative function and government, but the committee in its wisdom also thought that the government should consider some amendments to this bill before us today. Whilst we did not actually recommend the amendments, we did suggest that the government should contemplate that the bill should be extended to existing as well as new complaints. Existing complaints that were in the system, the committee thought, should probably be covered by this amending bill, and we have asked the government in our report to have a look at that and to see whether they think the government might be able to amend it accordingly.
We also considered that it was worthwhile drawing the attention of the government and the parliament to a particular issue for consideration, and that was to improve the future interpretation of some of the bill's provisions. In the public hearing some witnesses argued that the term 'harassment' was not sufficiently defined in the explanatory memorandum. Given that the term was central to the amendments made by the bill, the committee considered that the government could consider explaining this term more fully so as to give direction to interpretation into the future. That is the matter which Senator Bernardi also mentioned in his contribution, and I believe Senator Bernardi intends to move some amendments towards that. We will hear those debated later on, but, for the moment, the committee has asked the government to have a look at that and see whether a comment in the explanatory memorandum could be made that would better define 'harassment' and 'harass'. Senators will know that the explanatory memorandum and the second reading speech can well be used by the courts later on as an aid to interpretation, and that is why the committee thought that a neater way of dealing with it rather than through Senator Bernardi's legislative proposal might be for the government to mention this in some amended explanatory memorandum or in a second reading speech.
With those couple possibilities, the committee which investigated this bill quite fully was very keen in its recommendation that the bill should be passed, and I urge the Senate to follow the committee's recommendation.
In the 25 seconds before 2 pm, I indicate that the Deputy President has referred for my consideration matters raised in points of order during a speech by Senator Roberts earlier today during the consideration of private senators' bills. I have not yet had the opportunity to review the Hansard, but I did want to address one matter relating to the withdrawal of remarks which are contrary to the standing orders. If the chair requires remarks to be withdrawn, that withdrawal must be unconditional. In withdrawing such remarks, a senator must not repeat them. This is a standard that has been consistently applied in this place for many years. By repeating remarks judged by the chair to be unparliamentarily, a senator is, in effect, disregarding the authority of the chair, contrary to the standing orders. If there are any other matters on which I need to come back to the Senate, I will do so after reviewing the Hansard.
I raise the fact that Senator Roberts is not in the chamber. I request these remarks you have put on the Hansard be referred to him in writing.
I will ensure that all senators get a copy of my remarks. It now being past 2 pm, we will move to questions without notice.
My question is to the Minister representing the Prime Minister, Senator Brandis. When asked yesterday whether the Prime Minister supports a pay cut in real terms for those on the minimum wage, the minister said:
So far as I am aware, there are no proceedings currently before the Fair Work Commission of the kind that you have suggested.
On the very same day the government filed its 85-page submission to the Fair Work Commission annual wage review 2017. Can the minister confirm he is so out of touch he was unaware that the Fair Work Commission is currently conducting its annual wage review and that his own government was making a submission?
Once again, Senator McAllister, you have got to listen to the answer. The deadline for the filing of submissions was close of business yesterday. The proceedings have not yet begun. I do not know when the first hearing day is of the case, but I imagine the first hearing day of the case is in the next week or so. But the proceedings have not yet begun.
A supplementary question, Senator McAllister.
I do have a supplementary question. The government submission says:
… low-paid workers are more likely to be young, female, single or without children.
Why is the Turnbull government opposed to a wage rise for women and young people?
I have looked at the submission. We are not opposing a wage rise at all but, consistent with the practice of governments of both political persuasions, the government does not nominate a particular figure for the minimum wage. Let me read to you what has been submitted to the commission:
The Australian government considers that the approach to the minimum wages must be both economically responsible and fair.
… … …
Therefore, the [national minimum wage] should be set at a level that provides sufficient incentives for people who are not employed, including those receiving unemployment benefits, to enter work. However, the [national minimum wage] should not be set so high as to place undue financial burdens on businesses, discouraging them from employing low skilled workers.
That was not our submission this year. It was your party's submission when you were in government and when Mr Shorten was the responsible minister. The submission this government filed yesterday, in proceedings yet to commence, was to the same effect. (Time expired)
Senator McAllister, a final supplementary question.
When Australia is seeing the lowest wage growth since the ABS first published the wage price index in 1998, why is the government refusing to support a pay raise for those living on the minimum wage?
Senator McAllister, I would have thought you would have known this, given your industrial background. It has never been the practice of Australian governments, either coalition or Labor, to propose a particular figure in the national minimum wage case. What the government asks the commission to do is to have regard to the overall economic circumstances and the likely impact on the economy of any particular increase in the minimum wage. More commonly than not, governments of both sides, like the Rudd and Gillard governments and the current government, have urged caution or restraint in imposing burdens on business, as your side of politics did when it was you making submissions as a government on the minimum wage. We certainly do not, however, support the $45 a week increase the ACTU has called for, because that would be irresponsible.
My question is to the Minister for Defence and relates to tropical Cyclone Debbie, which ravaged parts of the North Queensland coast, including the Whitsundays and Mackay, earlier this week. In asking my question to the minister, I wonder if the Senate would allow me the indulgence of expressing the Senate's and the parliament's solidarity with those who have lost property and homes in the cyclone, and also acknowledging the volunteers and civilians who have done so much to help before, during and after the cyclone hit the coast. My question to the minister relates to the work that I know the ADF is doing. As I drove up to Townsville to come to Canberra yesterday, I passed convoys of Army trucks moving south towards the cyclone area. I ask the minister if she could indicate to the Senate how the Australian Defence Force has supported the people of North Queensland affected by the cyclone?
I thank Senator Macdonald for the question and acknowledge both his personal and, clearly, professional interest and commitment to this issue at the moment. Of course, our thoughts continue to be with the people of North Queensland as they begin a massive clean-up and reconstruction process.
The Prime Minister and the opposition leader visited some of the worst affected areas this morning. More than 1,200 ADF personnel are assisting with the recovery efforts in North Queensland. The ADF is working very closely with the Queensland government and a range of state and federal agencies as part of a comprehensive, whole-of-government response.
We have ongoing heavy rain and damaging wind gusts, which are affecting both the efforts to assess the damage from the cyclone and to begin the recovery process of affected communities between Ayr and Mackay. However, yesterday, two king aircraft completed wide area surveillance of potentially affected areas. As we have seen from the images online and further afield over the past two days, the damage to property in some areas is severe. Rotary-wing aircraft reconnaissance produced over 150 images for the Queensland Reconstruction Authority, while our MRH90 helicopter transported 10 necessary medical staff to Proserpine. HMAS Melville, which is one of the Navy's hydrographic survey vessels, has completed port survey and rapid environment assessment of Abbott Point.
It is also important, I think, to acknowledge that the recovery work is in its early stages and the ADF is preparing itself for further requests for assistance. Those requests will of course be made in conjunction with the Queensland authorities and the other relevant federal authorities such as Emergency Management Australia. Defence continues in its efforts to pre-position resources from which ADF support can be provided in the affected areas, including those very remote centres.
Senator Macdonald, a supplementary question.
Minister, can I thank you for that answer and thank you also to your defence forces who are doing a wonderful job. Their mere presence in these areas is a huge reassurance to people affected. Can I ask you about holidaymakers and staff on the Whitsunday Islands. Minister, you will know, and we can all say today, the Whitsundays is by far the best holiday destination anywhere in the world, and it will be again in a couple of weeks. Minister, what have the defence forces been doing in relation to holidaymakers and staff on the islands?
I think we will all tolerate that partisan observation today in the circumstances, Senator Macdonald. But Senator Macdonald is correct; as we have seen, the Whitsundays is one of the hardest hit areas. Yesterday, HMAS Choules loaded stores and engineering equipment in Brisbane to establish three disaster response sites in the Whitsunday Group. Choules has an MRH90 helicopter embarked as well as medical personnel, and both the helicopter and the ship's landing craft will be used to take supplies directly onto the islands as she left from Brisbane yesterday afternoon. An Army amphibious landing craft is also transporting an amphibious beach team to the Whitsunday Islands to conduct survey operations and inspect damage. HMAS Melville will support the people of Daydream Island as well with emergency support of fresh water and suppliers, and will carry out evacuations if they are required. These are examples of the unique capabilities that Defence is able to deploy to supplement state emergency services in harder to access areas so that we can provide immediate support to those affected and assist with long-term reconstruction. (Time expired)
Senator Macdonald, a final supplementary question.
Minister, how else will Defence be able to support the Queensland recovery effort?
There is a broad range of activities in which the ADF can and will, I suspect, be engaged. ADF members from Navy, Army and Air Force are helping with the evacuations; with aeromedical transport; with search and rescue; with assistance to restore critical infrastructure; with the road and route clearance—as the weather allows; with emergency food, water, fuel and shelter delivery and distribution; as well as with those reconnaissance surveillance and damage assessments I have mentioned.
As the Prime Minister noted this morning, for example during his visit to Bowen, the ADF will also support the people of Bowen by transporting electricians by air from Townsville to help restore power in that area. As the picture on the ground becomes clearer, the ADF will begin to move out into the affected communities. It is a great effort from the ADF and the men and women who are working in the 1,200-strong joint task force. It illustrates the importance, I think of the pre-deployment of assets and personnel to ensure that assistance could flow immediately. The ADF is well experienced in such operations. (Time expired)
My question is to the Minister for Employment, Senator Cash. In the Turnbull government's submission arguing against a fair increase in the minimum wage, it argues that:
Low-paid employees are often found in high-income households.
In an interview with Neil Mitchell on 3AW, the minister at least five times failed to answer how many of the 200,000 people on minimum wage have a rich family to rely on. Given that she has had time to prepare, will the minister now tell the Senate how many of the 200,000 people have a rich family to rely on?
I thank Senator Cameron for the question. In relation to the first part of his question, I completely reject what he has stated, that the government has filed a submission that does not support an increase in the minimum wage. In relation to the very selective quote that appeared on the front page of a Fairfax newspaper this morning, can I confirm that this is similar information that is provided each year by the government of the day, regardless of who is in power. For example, when you look at the submissions that were provided by the former Labor government in 2011, 2012 and 2013, each of those submissions—
Pause the clock. Point of order, Senator Cameron.
This is on relevance. The minister has answered the first part of the question. The second part of the question went to one issue: how many of the 200,000 people have a rich family to rely on? That was the question. The minister has had time to understand and prepare.
I remind the minister of the question. Minister you have one minute and 15 seconds.
Thank you. As I stated, this is information that is provided to the Fair Work Commission, regardless of who is in government. In relation to the question that Senator Cameron has asked, the question actually does not go to the 200,000 people who are on the minimum wage. The statistic is actually in relation to the number of low-paid employees and in relation to that, it is just under 50 per cent.
Senator Cameron, a supplementary question.
Can the minister further advise how many of the 200,000 workers on low wages are women and how would a freeze in the minimum wage affect the gender pay gap?
Thank you, Senator Cameron. In relation to the annual wage review, obviously it looks at low paid and those who are on the national minimum wage regardless of gender. In relation to the actual impact on women, however, one of the points that the submission does make in relation to the gender pay gap is that because women are more likely to be on awards or on the minimum wage than men there is less likely to be a gender pay gap because they are normally paid the equivalent rate as the person they are working next to if they are a man. The point that the submission makes is if you want to look at a gender pay gap, you actually have to look further up to higher paid people.
Senator Cameron, a final supplementary question.
Why is the Turnbull government's only advice to struggling Australians to have rich parents or marry up?
Again, Senator Cameron, I completely reject the statement. That is not the government's advice. As I said, in relation to the very selective quote that was made, that was provided by government, regardless of who was in power, in 2011, 2012 and 2013. The former Labor government provided very similar information. Senator Cameron, based on your history in relation to industrial relations, you would know that governments, in relation to the annual wage review, provide contemporary economic data to the Fair Work Commission that the Fair Work Commission is then able to take into account when determining whether or not there should be an increase in the minimum wage. The one being we do not shy away from—and it is something that Bill Shorten did not shy away from when he was the relevant minister—is that you also need to take into account—
Pause the clock. Point of order, Senator Cameron?
My point of order is on relevance. The question I asked was consistent with what the government ministers and the Prime Minister have been saying, which is that what you should do is get rich parents or marry up. The minister has not—
Order, Senator Cameron! There is no point of order. The minister has been directly relevant and has answered your question directly. The minister is in order. Minister, you have five seconds.
There are a number of factors to be taken into account, and we present that information to the commission.
My question is to the Minister representing the Minister for Agriculture and Water Resources, Senator Canavan. This week we saw the Turnbull government's attempt, via Deputy Prime Minister Joyce, to interfere in forest issues in Victoria and push for the release of more timber to the Heyfield mill. It is timber that simply is not there, because current native forest log supply volumes are commercially unviable, and Victorian government estimates show that the rate of logging that the mill is requesting would mean that the forest could be logged out in just a few years. Given that there is no long-term future in native forest logging, when will this government stop presiding over the inevitable collapse in jobs and in the critically endangered mountain ash ecosystem and actually plan for a transition to long-term security through sustainable plantations for Australia's timber and wood fibre needs?
I thank the senator for her question. We make no secret of our desire to protect the jobs of hardworking people in this country. There are about 260 people who rely on the Heyfield mill for their jobs, and we in the National Party and the Liberal Party are going to stand up for their jobs. That is our job. That is why we are here. I do not know what the job of the Greens senators is in this place, but our job is trying to protect people's jobs, and that is what we will do.
Regarding the senator's question, there is a sustainable process to manage forestry in this country. It is called the regional forest agreements. When the Victorian government came to power they reduced the amount of area that Australian Sustainable Hardwoods could log from 155,000 cubic metres to 80,000 cubic metres. I am advised that they have further reduced that to 60,000 cubic metres for the next two years. That is what has put pressure on Australian Sustainable Hardwoods and put at risk these 260 jobs.
This week, the Deputy Prime Minister wrote to the Premier of Victoria asking him to work with the government on ways we could provide more forestry area to keep the mill open, to keep these jobs alive and to allow these people to continue to provide for their families in an environmentally sustainable way. The Deputy Prime Minister has suggested that some of the future years' logging areas could be brought forward so that we can at least help provide for production now. He has also suggested that we should look at elements of the informal reserve system on production forest land, which could be swapped for the many thousands of hectares of new buffer zone exclusions around colonies that have been introduced since—
Pause the clock. Senator Rice, a point of order?
Yes, I have a point of order. Minister Canavan, my question was: when will the government actually look at transitioning to sustainable long-term jobs through transitioning the industry to sustainable plantations?
Senator Rice, the minister has been directly answering that part of your question. The minister is in order.
I am happy to go directly to that again. We believe that jobs in the timber industry are sustainable. That is our position. I know the Greens may have a different view, but we absolutely defend the right of workers in our forestry industry to pursue their careers in a sustainable way. We have a sustainable process developed here. We think we could suggest other ways of managing this process to keep these jobs alive, and that is what we are hard at work trying to do.
Senator Rice, a supplementary question.
In terms of jobs and wood production, 85 per cent of our wood production is already coming from plantations, so why won't the government end the forest wars and start planning for sustainable plantations that are able to provide 100 per cent of our wood production? History tells us that we have been smart enough to eventually recognise when destructive industries like sealing and whaling have no future. When will this government wake up and see that trashing our native forests should, like those pursuits, be consigned to the dustbin of history?
I am a little confused because I remember when the Greens were out there campaigning for a long time that old-growth forests should not be harvested. I am advised that no old-growth forests are logged for the Heyfield mill. It has always been the case that as soon as the Greens achieve one objective, like old-growth forests, they then go to the next one, saying, 'We can't have plantation forests.' Apparently, we can import all our timber from overseas—which is what we largely do at the moment—but we are not allowed to touch our own forests as well. I think we have a responsibility to sustainably harvest our forests so as to provide jobs and also to provide the goods and services that we all rely on in the modern economy that the Greens use. We can do that because we do not use old-growth forests in this region. I am also advised that the biggest threat to the Leadbeater's possum and possums in the region is bushfires, not the forestry industry, and responsible logging can help deal with that issue as well. Senator Rice, you need to have a more balanced approach to this whole issue than your ideological objective of putting people out of work.
Senator Rice, a final supplementary question.
Native forest logging destroys long-term jobs in tourism, wrecking the star attraction of intact natural forest. What does the minister say to the tourism operators in Victoria's central highlands or in Tasmania's Tarkine region whose livelihoods depend on our native forests remaining intact and on the clean green brand of those areas not being trashed by native forest clear-felling?
The government's firm view is that we can have a sustainable forestry industry in this country. We can have a sustainable tourism industry in this country. We can have a sustainable manufacturing industry in this country. We can have lots of different things in this country and manage them sensibly so that we can have a diverse range of jobs for Australian people. That has been proven in many areas, and I think we do a much better job of managing our own environment and our own forests than do many countries around the world. We should be proud of that and, indeed, we should be using those principles and practices to supply the products and services we need. Australians are not going to consume less furniture or less wood. What they will do is bring them in from other countries that do not necessarily share our practice. So the Greens want to export all the problems to other parts of the world because they view that it is out of sight and out of mind and we do not have to deal with it. We prefer to do the hard job of sustainably dealing with these issues and protecting jobs at the same time.
My question is to the Minister for Indigenous Affairs, Senator Scullion. For years the minister has been opposing calls from Aboriginal and Torres Strait Islander organisations and expert bodies to implement justice targets under the Closing the Gap framework. Only last September, the minister said:
The Commonwealth can't have a justice target ...
Does the minister stand by this statement?
I thank Senator McCarthy for the question. Absolutely, we stand by that statement. That statement actually has the support of many Indigenous groups who now understand that having a target affects nothing, because we have none of the levers. Having a Bex and a good lie down might be politically correct. It might be the easy thing to do, but it is not the right thing to do. The Commonwealth are determined to do the right thing: through COAG, have an agreement across the states and territories. They have the levers. They own the criminal justice system, they own the court system and they own the correctional system, so they can do things and they can have targets to set those matters to rest.
What we have done is say, 'We can do some other things, though. Yes, that's a matter for the states and they can set their targets.' So we looked carefully at the data and we realised that 82 per cent of Aboriginals who are currently incarcerated have, in fact, been there before. They are recidivist offenders. We have looked very carefully at that demographic. The first day that you are incarcerated, all our energy is on ensuring that everything that happens to you during that incarceration period ensures that you do not come back again. This is a strategy that is a thoughtful strategy. It has the support of very many justice groups around Australia, which I speak to very frequently. The advice on that area has certainly been provided to me by many Indigenous organisations. It is a more sophisticated approach than in the past. The state and territory jurisdictions are the ones who control the levers, so they should have the targets with respect to those levers. It is my responsibility as well to ensure that we hold them to account for those targets, so in a separate area the Commonwealth is dealing with the states to ensure that the 82 per cent recidivism is reduced. That is the particular area that we are working on.
Senator McCarthy, a supplementary question.
Reports reveal the Prime Minister has included justice targets in a review of Closing the Gap targets, so what exactly is the government's position—the minister's or the Prime Minister's?
Both. The report was actually referring to state targets. They were not Commonwealth targets. Our recommendation, through COAG, is to ensure that the justice targets are consistent targets that are adopted by all the jurisdictions. It has to be a consistent target based on best practice. We have said that there will be a suite of activities in this area and that justice targets should be a part of Australia's approach to it. The justice targets are a part of the responsibilities of states and territories, and we will be taking our responsibilities in another way.
Senator McCarthy, a final supplementary question.
Given the minister's policy failures now include the failed implementation of the Indigenous Advancement Strategy, overseeing half a billion dollars in cuts to services for Indigenous Australians, failing to protect the Territory—his Territory—from $2 billion in cuts to GST distributions, and opposing justice targets, will the Country Liberal Party move to see a fresh face in Canberra?
Where do you start? It has been interesting. I know Senator McCarthy will have been following the six-day campaign from my local newspaper—a fine newspaper. It brings crocodiles to the lounge rooms of every Australian. They have been running an online poll that asks, 'Should Scullion resign?'—because I am such a bonehead. Right at the moment, Territorians on that poll have voted 60 per cent in favour of myself and condone my view. That is almost two Senate quotas, Senator.
My question is to the Minister for Finance, Senator Cormann. Minister, many Australians and small businesses are continually facing undue hardships placed on them from the banking sector. ASIC and the Small Business and Family Enterprise Ombudsman have indicated publicly they do not believe the banks are complying with the legislative requirements of the unfair contracts act, which came into force on 12 November 2016. What is the government doing to enforce their compliance?
I thank Senator Hanson for that question. The government, of course, is taking action when others are proposing that we should have yet another inquiry in the form of a banking royal commission. What the government has done is boosted the resources of ASIC; boosted the powers of ASIC. We forced the bank CEOs to appear on a regular basis in front of a relevant parliamentary committee to be accountable to the public in relation to their performance. You mentioned a series of reviews that have been taking place in recent times. This of course builds on the very substantial financial systems inquiry which this government conducted, which also identified a whole series of necessary improvements. It builds on work that was done all the way back by Senator Bushby as chair of the banking inquiry a few years back. Over the last few years, Senator Hanson, this parliament, through its committees, has identified a whole range of improvements, both in terms of financial system regulation and in terms of the powers and the resources that need to be available to ASIC in particular. The government has acted and responded to those recommendations as appropriate. We are always open to talking about how further improvements can be made, but we do not believe that the right way forward is yet another inquiry.
Senator Hanson, a supplementary question.
Minister, you are correct, there have been many inquiries. In fact, there have been 17 inquiries into the banks since the GFC—that is, since 2008. But why aren't you implementing the recommendations that have come out of the many reports coming from them?
As I indicated in my answer to the first question, the government is implementing the recommendations that have been made, as appropriate. Obviously, whenever you are presented with recommendations, as a government, you consider the recommendations that have been made and how best to achieve the best possible outcome, and that is what the government is doing. We believe that the financial system regulation is in much better shape today as a result of the decisions that this government has made. We believe that ASIC is much better resourced now and has much more appropriate powers to deal with the sorts of issues that Senator Hanson raised.
Senator Hanson, a final supplementary question.
Is it not true that the banks are self-regulated, set their own code, and the government is reluctant to implement legislation to make them comply?
It is most definitely not true that the banks are self-regulated. The banks, and indeed the financial services sector as a whole, are very heavily regulated and very heavily subject to Commonwealth regulation, which is, of course, entirely appropriate. That regulation is enforced by a series of regulatory bodies, not least of which is the Reserve Bank, not least of which is the Australian Prudential Regulation Authority and not least of which is ASIC, which you have mentioned. There is a very high level of regulation when it comes to the banking system here in Australia. That is appropriate. It is always also appropriate for us as policymakers to reflect on how that regulation can be further improved. That is a process that has been ongoing and will continue to be ongoing in the future.
My question is to the Minister for Education and Training, Senator Birmingham. Will the minister update the Senate on the action the Turnbull government is taking to ensure that Australia has a skilled workforce to meet the needs of our significant naval shipbuilding projects?
I thank Senator Bushby for his question. Senator Bushby, of course, is perhaps one of the best qualified to ask a question on this topic. As, I suspect, the only graduate of a maritime college in this federal parliament, Senator Bushby indeed understands some of these training issues and the opportunities better than almost anybody.
The Turnbull government is very proud to be pursuing Australia's largest ever defence capability investment. As Senator Payne has touched on many times in this chamber, these are significant groundbreaking, changing investments: the $3 billion Offshore Patrol Vessel, the $35 billion Future Frigate Program, the $50 billion SEA1000 Future Submarine Program. All of them, of course, will dramatically enhance our future defence capability, most importantly, but they will also drive defence industry development around Australia and, through that, the creation of many thousands of jobs—an estimated 5,200 jobs over the next 10 years—which will be generated across Australia as a result of these undertakings.
Most critical to the successful delivery of Defence capability and the optimisation of the defence industry potential is, of course, having a skilled workforce in place. That is why we are taking a proactive national approach to naval shipbuilding workforce development and skills. My department, along with the Department of Defence, have been engaging across the country in discussions about how best to do this, and we have announced plans for a $25 million naval shipbuilding college to help coordinate the education and training requirements across the country that will be necessary to deliver the skills that are necessary. This will be an opportunity for all states, and all educational and training institutions who have the right skills, to engage in helping to deliver the workforce that is required for success in the defence industry and to fill those more than 5,000 jobs that we are proudly creating.
Senator Bushby, a supplementary question.
Can the minister advise what opportunities the naval shipbuilding college will provide across Australia?
As I said, across Australia the college will generate many opportunities through collaboration with education and training providers. It will take a hub-and-spoke approach in terms of its engagement, identifying the skill needs for successful delivery of the naval shipbuilding projects and then, where necessary, potentially procuring the development of those training packages and programs to fill those needs in the future. It will be complementary to, work with and engage with existing institutions, rather than replacing any of them. The college will seek to identify, attract, train and retrain more than 1,500 people in the first few years of operation, and it will be a truly national endeavour befitting, of course, the national endeavour that is the naval shipbuilding program itself. Over 100 universities and training providers already provide particular skills in terms of naval shipbuilding and operations right around the country, including in engineering, precision welding, electrotechnology and naval architecture, and we want to leverage those existing capabilities as much as we possibly can.
Senator Bushby, a final supplementary question.
Will the minister outline how existing universities and training institutions will be part of building the naval shipbuilding workforce?
As I said, we want to leverage wherever we possibly can. There are many good examples where we are able to do so. For example, the Australian Maritime College in Tasmania, where Senator Bushby studied, provides maritime engineering, naval architecture and maritime and logistics management. The government has had engagement with the University of Tasmania and the Australian Maritime College to outline how we believe they can benefit, and we will absolutely be continuing that engagement with them to make sure that they are appraised of the opportunities that our new maritime technical college program will provide. It should mean more students studying in Launceston, but it should also mean more students studying in many locations around the country. In Western Australia, the South Metropolitan TAFE already provides courses like an engineering certificate III in ship building, which will provide opportunities particularly tied to the Henderson shipyards and the work that will be undertaken there in Perth. Equally, South Australia's three public universities, TAFE SA and defence industry association are collaborating on opportunities that they see: opportunities across states, across the spectrum from the thousands of jobs we are generating. (Time expired)
My question is to Senator Nash, representing the Minister for Health and Ageing. Between 2004 and 2015, government invested around $60 million in the Australian Primary Care Collaborative's program. This program developed quality indicators for many national health priorities, including diabetes and cardiovascular disease. These indicators are now available in many practice software systems including MedicalDirector. My question is: why has the government failed to include indicators from the APCC in the primary health network performance framework given the need for nationally consistent qualitative measurement?
I thank Senator Griff for his question and for some notice of it. He would be aware that it was this government that established the 31 PHNs in 2015. This was to increase the efficiency and effectiveness of medical services for patients, particularly those at risk of poor health outcomes. It was also done to improve coordination of care to ensure patients received the right care in the right place at the right time. PHNs work directly with general practitioners, other primary health care providers, secondary care providers and hospitals to facilitate improved outcomes.
The government has agreed to six key priorities for targeted work by PHNs. These are mental health, Aboriginal and Torres Strait Islander health, population health, health workforce, eHealth and aged care. I am advised that the Australian Primary Care Collaborative's program is used voluntarily by individual practices. The collaborative's program developed a number of quality indicators which have been adapted into continuous improvement programs for general practice, which continue to be run by the PHNs in most regions. The concept of a continuous improvement system developed out of the collaborative's is currently being adapted in discussions with general practice.
Senator Griff, a supplementary question.
Considering, as mentioned, the government has already spent $60 million developing these indicators, will the government commit to using them in the rollout of the Health Care Homes program; if not, why not?
I am advised that the department is currently developing the Health Care Homes evaluation plan. That plan will outline the broad categories of measures to be collected, of which relevant clinical indicators will only be a part. The choice of indicators will be informed by an evidence based assessment of the likely impacts of the model and an analysis of systematic reviews of similar models. Consideration will be given to existing indicators in the selection of indicators for the broad categories of measures. The evaluation of health care homes will examine the effect of the model on quality of care, patient and provider experience, practice behaviour, service usage and cost impacts. It will explore how the model works in various situations and settings and a look at what works best for different patients and practice types and in different communities with varying demographics. The evaluation will also consider the implementation process.
A final supplementary question, Senator Griff.
Given the value in health care is best judged when combining an assessment of outcomes with cost, what other measures is the government proposing to use to assess the effectiveness of primary health care?
In the 2016-17 budget the government agreed to simplify the Practice Incentives Program and introduce a new quality improvement incentive. It is proposed that participation in this incentive will involve the sharing of practice data with a third party, such as PHNs, based on a small number of key indicators which will be negotiated and agreed with the sector. The work undertaken under the Primary Care Collaborative's program is likely to inform the development of these key indicators. Over time it is expected that the quality of data against these indicators will improve and thereby improve health outcomes for patients.
My question is to the Minister for Employment, Senator Cash. Last Monday the ABC's 7.30 program exposed the appalling conditions experienced by Aerocare workers at Sydney Airport. Aerocare workers are paid at a rate below the poverty line and forced to work split shifts, often spending 15 hours a day at the airport but receiving as little as seven or eight hours pay. Was the government aware of the appalling conditions facing workers at Sydney Airport before those conditions were exposed on the 7.30 program. If yes, what action has the government taken and if no, why have you taken no action?
I thank Senator Gallacher for his question. The government is aware of media reports about working conditions for certain workers at Sydney Airport. As Senator Gallacher has articulated, these workers are engaged under an enterprise agreement between employers and their employer, Aerocare. In other words, they have gone through the negotiating process for the agreement, and they have agreed to the agreement and it has been approved by the Fair Work Commission—it has been approved by the independent Fair Work Commission. I also understand, though, that Aero Care is currently negotiating a new enterprise agreement, and I understand that the Transport Workers Union and the Australian Services Union are themselves now seeking to cover workers in this agreement.
Any worker concerned that the terms that have been negotiated in their enterprise agreement, which has been approved by the independent Fair Work Commission, are not being followed should raise their concerns with the Fair Work Ombudsman, which can then obviously investigate the matter. I am also informed that both Aerocare and the Fair Work Ombudsman are investigating the matters that have been raised in the media reports and considering whether further action is now needed. Again I would say that they are employed under an enterprise agreement that has been agreed between the employees and the employer, but at this point in time they are in the middle of negotiating a new enterprise agreement under which two unions—the Transport Workers Union and the Australian Services Union—are seeking to cover the workers in the agreement.
Senator Gallacher, a supplementary question.
A former worker, Jason, has said:
… my main issue was the safety issue, the fact that people are being so poorly remunerated they don't care about their jobs.
Why has the government allowed safety in our imports to be compromised by appallingly poor working conditions?
Senator Gallacher, I completely reject the premise of your question. Again I go to the terms and conditions under which these employees are employed. They are workers that are engaged under an enterprise agreement that has been agreed between the employees and the employer, Aerocare, and the agreement itself has been approved by the independent Fair Work Commission.
Senator Gallacher, if you were made aware of any concerns in relation to this agreement, and certainly in relation to this particular person that you have raised, I would certainly hope that you have advised them to actually refer this to the Fair Work Ombudsman. Because, as I have said, I understand that the Fair Work Ombudsman is currently investigating the matters in the media reports.
Senator Gallacher, a final supplementary question.
Can the minister assure the Senate that Aerocare workers suffering under these appalling conditions are not being subsidised by the federal government's training, placement or employment programs?
In relation to the latter half of your question, I would need to take that on notice, which I will, and I will return to you. Again, Senator Gallacher, the point is this: they are employed under an enterprise agreement that has been negotiated between the employer and the employees. They have agreed on the terms and conditions. The enterprise agreement has been approved by the independent Fair Work Commission. If anyone has concerns in relation to whether or not those conditions are being met, they should absolutely raise them with the Fair Work Ombudsman. And as I said, I am informed that the Fair Work Ombudsman is currently investigating this matter.
But on the broader point of worker exploitation, we have a very comprehensive worker exploitation policy that is going off to a Senate committee, and I would certainly hope that we can seek the support of those on the other side to tackle the exploitation of workers— (Time expired)
Brace yourselves over there, because this is a bobby-dazzler of a question. My question is to the Minister for Regional Development, Senator Nash.
Opposition senators interjecting—
Now listen up. Can the minister update the Senate on what the coalition government has achieved for regional Australia since the last election?
Opposition senators interjecting—
She will not fit it all in; she only has a couple of minutes!
Order, Senator O'Sullivan! Order, on my left!
I thank the Senator for his question and for his tireless work for regional Queensland. I am absolutely delighted to stand up in this place and update the Senate on the many significant achievements of the Turnbull-Joyce government in regional Australia. We have established the new Building Better Regions Fund, which will deliver infrastructure and community investment right across our regional communities. We are delivering a $220 million Regional Jobs and Investment Package to create jobs and prosperity in regional economies. We have established a new ministerial task force for regional Australia, which will bring forward a long-term and more strategic approach to delivering the health, education, jobs, infrastructure and communications services that regional communities deserve.
To secure our energy needs we will be investing in the future with the Snowy Hydro 2.0 project. In infrastructure, we are investing $594 million to start the Inland Rail. We are investing $100 million in the Outback Way, which is indeed Australia's longest short cut. In health, we are delivering Australia's first ever National Rural Health Commissioner and $11 million for the Royal Flying Doctor Service. We are delivering a $300 million national ice package and $25 million for a new Dubbo cancer centre. In education we are investing $150 million for remote student access and $5 million to boost the number of Indigenous scholarships. In communications we have invested $220 million for new and upgraded mobile towers. We have expanded Sky Muster's capacity. We have expanded the fixed wireless footprint. We have prioritised the NBN rollout to regional areas, and we have $2 billion in concessional drought loans to support farm businesses. And we have $2.5 billion for national water infrastructure. And that is just the start.
Opposition senators interjecting—
Order, on my left!
Senator Cameron interjecting—
Order, Senator Cameron! Senator O'Sullivan, a supplementary question.
Can the minister explain to the Senate why it is critical that we continue to invest in our regions, and is the minister aware of any alternative approaches to regional development?
Senator Cameron interjecting—
Senator Cameron, you have been interjecting on every question—except your own!
It is absolutely vital that we invest in regional Australia. Regional Australia is the backbone of the nation. Unlike those opposite, the coalition understands regional communities. We live in them. How many on the other side live in regional communities? Out of 26, are there 12 or 10 or eight or six? There are three people on the other side of this chamber who live in regional communities—
Senator Wong interjecting—
And one of them is not Senator Wong. When we are talking about Labor values—I know I keep raising this—but senator Wong from Adelaide oversaw some of the most shocking examples of waste. She spent $303 million buying water from Twynham. Unfortunately, some of it was general security, which you actually do not get. The first year she only got 20 per cent of the water that she bought. She then went on to spend $34 million buying water from Tandou—supplementary water that only exists in a flood. The Labor Party has no idea about regional Australia. (Time expired)
Senator O'Sullivan, a final supplementary question.
Can the minister provide further detail of these alternative approaches to regional development and how they would impact rural, regional and remote communities?
Opposition senators interjecting—
If those on the other side spend less time interjecting and more time thinking about regional communities, they might get somewhere. We have delivered three major free trade treatments and are opening up new markets for Australian exporters. Labor concluded no major trade deals, shut down our live export cattle trade with Indonesia and brought our northern beef industry to its knees. We are the ones standing up for small business, bringing in an effects test, but are the Labor party supporting it? No. They are supporting big business. Why do those on the other side hate regional Australia? We have brought in the sugar code, and Labor are opposing it and opposing certainty for the industry. On this side, the coalition will continue to deliver for regional Australia, unlike the city-centric, latte-sipping, polka-dot-sock-wearing senators on the other side, who ignore regional Australia. (Time expired)
Honourable senators interjecting —
Order! I know it is the last day for a while, but let us come back to order. Senator Sterle, see if you can keep the crowd quieter.
I will do my best, Mr President. My question is to the Minister for Finance, Senator Cormann. Senator Cormann, last week veteran WA Liberal Party donor Julian Stawell wrote a stinging letter to The 500 Club, a body which raises money for conservative politicians, calling them to drop support for WA's six federal ministers over their lack of action on GST reform and other issues. In his letter Mr Stawell accused the Canberra six of being 'psycophantic to the Canberra establishment', Senator Cash.
Sycophantic!
Sycophantic, sorry. When I looked at you I thought of psychos. Has the minister discussed with Mr Stawell his concerns about the minister's failure to advocate for his home state? You led with your jaw, Senator Cash. I could not help it.
The short answer is: no, I have not. The second part of the answer is that Liberal members and senators from Western Australia are very strong advocates for the great state of Western Australia. The first thing we did after the most anti-WA government in the history of Australia, the Gillard Labor government, which gave us the anti-WA mining tax and the anti-WA carbon tax and which created chaos and dysfunction at our borders with illegal boat arrivals as far south in Western Australia as Geraldton—if Julia Gillard had been Prime Minister for another few months, we would have had illegal boat arrivals coming up the Swan River in Perth—
Mr President, I have a point of order on relevance. The question was very clear. Senator Cormann is going off on some psychobabble about other things. Would you direct him to the question please?
Senator Sterle, there is no point of order. The minister directly answered the question at the commencement of his answer. Minister, you are in order.
Of course on coming into government the first thing we had to do was repair the mess and the damage that the most anti-WA government in the history of the Commonwealth had done to our great state of Western Australia. We had geniuses on the Labor side. Former Treasurer Wayne Swan—remember him?—delivered a mining tax that was designed to hit the WA mining industry for six. He thought it was going to raise millions of dollars. He spent all the money he thought it was going to raise and more and created massive uncertainty in Western Australia at the worst possible time. It is this government that got rid of it. It was the Liberal members and senators from Western Australia who repaired the damage that Labor did.
Point of order, Senator Sterle? If it is on relevance, I will rule you out because he is being directly relevant. Thank you, Senator Sterle. Minister.
When it comes to Western Australia and the GST-sharing arrangements it is a matter of public record that this government has actually stopped the drop in WA's share of GST at the 2014-15 level by making a $1 billion unilateral grant over two financial years to Western Australia towards infrastructure. That is more than the Labor Party ever did. I have not heard Bill Shorten suggest that he is going to take money away from Tasmania and South Australia to give it to Western Australia. Are you suggesting that Bill Shorten is going to do that?
Senator Sterle, final supplementary question.
No, it is my first one, Mr President.
Well I will give you the first supplementary question.
Thank you, Mr President. I know it is entertaining, but here we go. Mr Stawell says, 'The Canberra Six need to be publicly held to account by the parliamentary leader of the WA Liberal Party as not being effective advocates for their electorates.' Has the minister been lobbied by his five Western Australian Liberal colleagues about Mr Stawell's demands?
Firstly, it is a free world and the gentleman is of course entitled to his views. Secondly, while all ministers in the national government bring their respective perspectives as citizens in their respective states and representatives of their respective states, they do have a responsibility to take a national perspective on things, and that is what we do. Of course all of us from Western Australia, whether we are ministers or backbenchers, work every single day on how we can appropriately advance the best interests of our home states, as other senators and members in the other place would be doing. As cabinet ministers and as ministers in the national government of course ultimately we have a responsibility to focus on the national interest as well as on the interests of the respective electorates that we represent in this place.
Final supplementary question, Senator Sterle.
Mr Stawell has suggested that 'grassroots Liberals need to get organised to effect the disendorsement of these aforementioned MPs if they do not act'. What action is the minister going to take to avoid the threat of disendorsement by grassroots Liberals?
It is a juvenile approach that Senator Sterle has taken. It is quite fascinating to see how much interest he pays to the internal matters of the WA Liberal Party. I think the WA Labor Party would be better served if they focused on what they were elected to do at the last state election, and that is to serve the people of Western Australia. These sorts of juvenile, university-level gibes do not do you any credit at all, Senator Sterle. Start focusing on public policy issues rather than on the internal matters of other parties. You have got enough to worry about in your party.
My question is to the Minister for Communications, Senator Fifield. Can the minister update the Senate on the latest NBN milestones?
One of the reasons I am particularly happy to receive this question from Senator Smith is that when I was at the Parliamentary Friends of Australian Music event last night, at Queens Terrace, it was a bit of a walk down memory lane when I bumped into former Senator Conroy, who I think we all miss in this place, which got me thinking about the contrast between what our predecessors achieved with the NBN—or did not achieve—and what this government has achieved. So I know that you, Mr President, along with all colleagues, will join with me in being absolutely delighted that last week NBN reached a new connection record of 32,769 service activations in a single week. That is more than 6½ thousand services switched on each and every business day. And not only is NBN hitting new peaks each week; it has this week surpassed the two million mark for connected customers.
Thinking back to a previous time, under a previous government, the contrast has been pretty dramatic. Even looking at the last 10 months under this government, the NBN was available to one million premises in Australia but that number has now climbed to 4.4 million premises. That is an incredible achievement. The former shadow Minister, Mr Clare, described it as a jump that even Evel Knievel could not mount. Anyway, we have managed to do that. So that is good news for all colleagues on the NBN.
Senator Smith, a supplementary question.
Can the minister explain to the Senate how the coalition government is delivering better communications in regional areas?
I can, and I thank Senator Smith for his particular interest in this area of communications. We as a government have deliberately prioritised underserved areas and regional Australia in the NBN rollout. Today, 70 per cent of premises are able to order an NBN service in regional and non-metropolitan areas. Let me repeat that: 70 per cent of premises able to order an NBN service are in regional and non-metro areas. Around-two thirds of the rollout outside major urban areas will be through fixed line deployment and this will be supplemented, in less dense areas, with fixed wireless and satellite. Together, these technologies are delivering broadband to hundreds of thousands of homes, businesses and farms that previously had to rely on poor or non-existent connectivity. So it is a good story for regional Australia.
Senator Smith, a final supplementary question.
Can the minister outline how these achievements with the rollout results compare with the former Labor government?
I can, and it is hardly a fair comparison. If we simply take the numbers from NBN's weekly rollout report, which has been updated every single week since we came into government, total activations by 30 June 2011 were only 786. One year later, Labor had made the incredible progress of connecting a total of 13,000 premises! By June 2013, total connections stood at 70,100 nationwide.
I have mentioned the figures that have been achieved under this government. We now have the NBN available to 4.4 million premises. By 2020, the NBN will be complete. That is six to eight years sooner than would have been the case under those opposite at about $30 billion less in cost. We want all Australians to get the NBN as soon as possible and, under this government, they will.
Mr President, I ask that further questions be placed on the Notice Paper.
I advise senators that just a short while ago I was advised by the Court of Disputed Returns that it will hand down its judgement in relation to the matter referred to it concerning former Senator Bob Day on Wednesday, 5 April at 10.15 am in court No 2.
I have some information that I said I would bring back to the chamber in answer to a question by Senator Kakoschke-Moore yesterday. MHS, the current provider of 1800RESPECT, has commenced a tender process for the trauma specialist counselling component of the service. The subcontract for trauma specialist counselling has always been due to expire on 30 June this year. Rape and Domestic Violence Services Australia knew its subcontract was due to expire on 30 June, and the possibility of a tender process being conducted was raised with RDVSA on several occasions before the EOI was announced.
MHS is responsible for this subcontracting arrangement under its contract with the department to deliver 1800RESPECT. As a first step in the tender process, MHS advertised an EOI on Tenders Online, on 14 February, inviting suitable organisations to submit a response by 17 February. MHS has invited selected organisations who responded to the EOI to submit a formal tender. The process will be open for around 30 days. The Department of Social Services does not have a role in the tender process. It is up to MHS to complete the tender and ensure it continues to meet its contractual obligations to the department. The EOI is open to appropriate services with the expertise and capacity to deliver a quality specialist trauma counselling telephone service to people impacted by family or domestic violence or sexual assault.
MHS has advised that an independent probity officer and clinical expert with experience in family and domestic violence support services is included on the selection panel to ensure a competitive and impartial tender process. MHS has also advised that it is working with its own legal and procurement teams, as well as an external probity adviser, to ensure a smooth and fair tender process. I am advised that the minister's office has offered to provide a briefing to the senator on this issue if she wishes to take it up.
I move:
That the Senate take note of the answers given by the Attorney-General (Senator Brandis) and the Minister for Employment (Senator Cash) to questions without notice asked by Senators McAllister and Cameron today relating to the annual wage review conducted by the Fair Work Commission.
I rise to take note of the answers given by Senator Brandis and Senator Cash to questions asked by me and Senator Cameron. This may be a first for question time: this afternoon, Senator Cash has been unable to answer a basic question that is relevant to not just one but both of her portfolios. You will recall that Senator Cameron asked Senator Cash how the minimum wage would impact on the gender pay gap. But, despite being the Minister for Employment and Minister for Women, Senator Cash basically ducked the question. She named 16 per cent as the current gender pay gap, but that is just one measure, and the same agency that she oversees cites a much higher number for the gender pay gap because the gender pay gap, when you consider total full-time remuneration, is actually 23.1 per cent. It means that men are earning, on average, more than $26,000 a year more than women, and I note also that this gap is much higher in the private sector than in the public sector.
But the big issue is that the answer she gave also completely missed the point about men's work and women's work. It is not the case that, if we wish to consider closing the gender pay gap, we need to look at higher income people, because the truth is that one of the key drivers of the gender pay gap is occupational and industrial segregation. If you want to unpack that and put it in normal language, it means that women are far more likely to work in low-paid jobs within a particular industry or within industries that have very, very low rates of pay—and the minimum wage is absolutely relevant to the take-home pay for those women and it is absolutely relevant to the gender pay gap. Thirty per cent of the gender pay gap arises from industrial and occupational segregation, and those are stats that, again, come from the minister's own agency. When we look to the future, the new, high-paid jobs that are anticipated to come into the economy seem likely to be created in industries that are dominated by men, but the new jobs that are likely to be taken by women are part time, casualised and in very, very low paid, caring industries traditionally occupied by women. Lifting the minimum wage absolutely helps to close this gap, and it is astonishing that the Minister for Women would point us away from low-paid women when we are talking about the gender pay gap and ask us to consider better paid women. The money that we are talking about might not matter that much for a partner in a law firm, but it matters for the people on the minimum wage and it matters for their families. Many of these people are in care work, caring for our ageing population, for people in our community with a disability and for children—and care work is highly feminised and underpaid.
I had a look at some of the other, more thoughtful submissions to the Fair Work Commission around this question of the minimum wage, and I took a look, you will be interested to know, Madam Deputy President, at the submission made by United Voice—because they actually do listen to real people. They do listen to the women who are working in care work and in low-paid, feminised jobs. They quote testimony from a woman named Ruth, who is a cleaner in outer suburban Sydney. She says: 'Recently I had to find the money for a deposit for three excursions. I had to go without in groceries that week to make sure we had the money.' That is the reality of the low paid in this country. This is a situation where a family, to meet the basic objectives of schooling, be part of the school community and participate in an excursion, had to go without groceries. That is disgraceful and it is astonishing that, under these circumstances, where wages are flat and where so many families are doing it tough, this government has refused to provide support for an increase to the minimum wage. I am, frankly, shocked that, in a week where the government has faced so much criticism about its heartless approach to penalty rates and its persistence in offering a $50 billion tax cut to our largest businesses and to our financial institutions, it is unable to come to grips with the seriousness of this issue and the challenges faced by low-wage people in Australia.
I want to start where Senator McAllister left off in taking note of the answers given today to those questions referred to with regard to the minimum wage and the annual wage review. It is important to point out elements of the answers that were given today with regard to the importance of business as employers and the need not to impose on businesses undue burden. They are the ones paying the wages and, if a business is burdened to an extent where it becomes unviable, a non-commercial entity, then the business closes down, the jobs go and those people Senator McAllister referred to in her contribution then do not have jobs to pay for the expenses she mentioned—groceries, schooling and things like that.
It is also important to go over some of the points that were made in the answers by ministers in question time. I think the most revealing of the points made was the fact that the government's submission to the annual wage review is extremely similar to the submissions that have been made by successive governments over many years. As we know, in the years prior to 2013, we had a Labor government, led by Prime Minister Gillard and Prime Minister Rudd, and, of course, we had an employment minister who happens now to be the Leader of the Opposition. So we need to look at what they did when they were lodging submissions to the annual wage review. Points that were made included this. Bill Shorten, as the responsible minister, said that the minimum wage should increase but not be 'set so high as to place undue financial burden on businesses, discouraging them from employing low-skilled workers', whilst also noting that Australia has one of the highest minimum wages in the developed world. That is absolutely correct and that fact stands today. We cannot ignore that fact. This notion that business is some sort of monolithic cash cow that can churn out pay rises instantaneously is just not realistic. We have to remember that in this debate.
In her contribution, Senator McAllister also referred to the debate on penalty rates, and the same thinking should apply there, too. There is this notion going around that business can and should be able to afford pay increases all the time. The reality is that the increased burdens, the increased expenses to business and costs on running a business—small business, particuarly, where many of these low-paid workers are employed—can send these people out of business. The end result of that, of course, is that there are no jobs; they get no pay at all.
Going back to the points that have been made by ministers previously: there has been incredible consistency in the government's submissions to the annual wage review over many years. As Senator Cash said in her answer: in 2011, 2012 and 2013, all of the submissions repeated the same information, and this notion that was advanced by Senator Cameron—by interjection, I think, not in asking the question—that the advice was to get rich parents or marry up is a ridiculous suggestion in my view. No-one said that; no-one would ever suggest that. The fact that that suggestion is being made by Senator Cameron in his interjection when the submission made by this government to the annual wage review is consistent with the submissions by previous governments, including Labor governments, was made at a time when we had an employment minister in the now opposition leader, Mr Bill Shorten—is he suggesting that the submissions back then had the same message for low-paid workers? I don't think so; I think he knows how ridiculous that assertion was.
I conclude by saying: it is just cheap politics to try and pick selective quotes out of the submission to mount a case that this government is somehow the enemy of the worker, when we are doing precisely what governments before us have done. We are also supporting small business—and business generally—to create jobs and to assist them to invest so that they can keep the economy ticking over.
I listened very intently to the answers to questions asked by Senator McAllister and Senator Cameron today in relation to the minimum wage. Unfortunately, I was extremely disappointed with the responses, and I was hoping that the government senators would get on board with the much more reasonable position, which the opposition has put to the Fair Work Commission, in relation to the minimum wage case. I think it is worthwhile just pointing out the stark contrast between the opposition's position in relation to minimum wage increase as against the government's.
The opposition's submission talked about the fact that the panel's decision should be one that firmly supports a fair and economically responsible increase in the national minimum wage and all modern award wage rates—and I want to return to that point, because I think it is something that is overlooked in this debate. The opposition's submission also made reference to the fact that, whilst the opposition respects the independence of the commission, any variation of a modern award which results in the reduction of a take-home pay is unacceptable and inconsistent with the intention of parliament. We have a position where we understand that there is the prospect of a reduction in take-home pay and there is a real need for the commission to take this into account.
It is interesting that one part of the government does not seem to understand what the other part is doing, and there is a very jumbled set of twisted priorities coming out of this government. I have mentioned in previous speeches in this place that the Treasurer, quite usefully, has said in recent times that he acknowledges that record low wage growth is the biggest challenge facing the Australian economy.
One would have thought that, presented with the prospect of a cut to take-home pay through a penalty rate adjustment, this government should get on board with the minimum wage case and support a fair and economically responsible increase in the minimum wage. That would be the sensible thing to do, if you really do believe that low wage growth is Australia's biggest economic challenge. But, of course, here we see in the government's submission to the national wage case that they are saying that a minimum wage increase is not an efficient way to address living standards and they are throwing all sorts of other barriers in the way of the commission implementing a fair increase in minimum wages.
It is significant to note that the national wage bench does take particular regard to the submissions of the government of the day. I think they are very, very persuasive submissions and that adds to the tragedy of the situation where we have a government which claims to be interested in addressing the issue of low wage growth but, at the same time, coming out to the national wage bench and saying: 'Be very, very cautious about what you do here. It may add to unemployment et cetera.' This is a government with mixed messages and twisted priorities, and I think the workers of Australia are entitled to be very, very disappointed with this government's approach. They do not care about the interests of ordinary workers. They stand condemned for their inaction in relation to the cut to penalty rates.
There are some on our side of politics who understand the importance of the minimum wage case. It is a wonderful opportunity to address the issue of inclusive growth in our economy. The minimum wage does play a very important role not only for people on the actual minimum wage itself but it flows through to millions of workers who are award dependent, so this is a very important mechanism for addressing living standards, contrary to the government's submission.
In my closing few seconds, I want to give a shout-out to Margarita Murray-Stark who, I understand, is in Parliament House, meeting with various members of parliament. Margarita is affected by the penalty rates cuts. She believes she would earn $2,000 less and has decided to come to parliament to talk to MPs and, hopefully, to the Prime Minister. So good luck, Margarita, with that.
I too rise to take note of the answers to questions, and I would like to talk about some of the principles involved, the process and the purpose of the Fair Work Commission, and lastly to reflect on the politics that so underpins arguments in this place that, unfortunately, are sometimes to the detriment of constructive development of good public policy.
In this place, for a number of years now, I thought there had been fairly broad acceptance by parties on both sides of this chamber that the conditions under which workers work and are employed—whether that comes to penalty rates or minimum wages—should be set by an independent body. That should remove much of the politics out of it. Just as we have the Reserve Bank, which is free to set interest rates, we have an independent body that makes these agreements. What that means is that it can take submissions from a wide range of people to consider both facts and, importantly, the context and how the context is changing, and the commission brings together a wide range of skills and people with different backgrounds who understand different aspects, whether it is the economy, the community or workforce implications. There are a range of perspectives that are brought to that detailed consideration of facts. So I had thought there was a well-established principle, supported by both sides of politics, that we would have an independent body to do this and remove the politicking of the parliament out of affecting the conditions that people work and live to.
The process has been followed by successive governments. Not only governments of this side but Labor governments have followed the same process. And do you know what? The submissions, in terms of their content and form, looked remarkably similar, for the simple reason that governments have departments who help advise and prepare briefs. It should be no surprise that the sorts of things they submit are similar. When Mr Shorten was the employment minister, there was no figure in his submissions on minimum wages. They put forward the same kind of principle-based arguments that the coalition government has done. So, if the Labor Party applied to their own submissions the same standard of criticism they apply to this government's submissions, they would have to come up with the same conclusions.
In question time today they have criticised the inclusion of facts, and they cherry-picked the fact that the government's submission says that nearly half of low-paid workers are in the top 50 per cent of household income. They are saying that means that the government must be out of touch, because they are making comments like that. Well, Dr Leigh, from the opposition in the other place, made these comments shortly before Labor came to government:
Given that the typical minimum wage worker lives in a middle-income household, it appears unlikely that raising the minimum wage will significantly lower family income inequality.
Mr Shorten, in 2013 in the government submission, said:
The Panel should also consider the fact that all low paid workers do not necessarily live in low income households.
… … …
Furthermore, the Government's analysis reveals that around 60 per cent of low-paid employees live in a household with more than one income earner and therefore their living standards are affected by income from other household members.
So the things that, for political reasons, the opposition is dragging up and criticising the government for here have been part of the same process that their own ministers—in fact, the Leader of the Opposition when he was the responsible minister—made.
Why do the Fair Work Commission look at things like minimum wages? What are some of the things they take into account? One of the purposes, as articulated by this government and as articulated by the opposition when they were in government, is to recognise that, if you increase the minimum wage too far, you will in fact impact on small business and their ability to employ low-skilled workers. Mr Shorten has made that point himself when he was the responsible minister in government. So the principle should be supported by both sides and, until this debate, I thought it had been. The process, unsurprisingly, is the same whether the ALP or the coalition is in government. The purpose is about making sure there are more jobs. Unfortunately, the politics from the opposition gets in the way.
What this government is refusing to do is to commit to a rise in minimum wage levels. Many Australian families are doing it really tough—much tougher than they need to, because this government would rather give tax cuts to the rich than a wage rise to struggling workers. I just want to echo Brendan O'Connor, our shadow minister for employment and workplace relations, who says that if you do not increase the minimum wage then you are ensuring that, in real terms, wages go down, because prices do not stop rising. That is why we need to make sure the minimum wage keeps up with price increases and preferably goes further to address inequality in this country—yes, inequality. That is why Labor is clear that we want to make sure that there is a decent, livable minimum wage, because we care about fairness in this country and we are concerned about inequality.
The Minister for Women today attempted to defend the government's position by arguing that there is no gender pay gap on the minimum wage. Even though women make up the majority of low-paid workers in Australia, it is all good, because they are earning the same low amounts as the minority of men on the minimum wage, because apparently it is not about gender. Perhaps the minister is not aware of the ACTU's report The gender pay gap over the life cycle from last year, which revealed women are financially disadvantaged at every key stage of their lives: in childhood, at the workplace, through pregnancy, through motherhood, as a carer and in retirement. This report also found that women are earning less on average in relation to men than they were 20 years ago. Women earn around $284.20 less per week than men, and 70 per cent of part-time work is undertaken by women.
Evidence from the Census Bureau in the United States shows that, in the states with a high minimum wage, wages growth for women was strong and, in the states where the minimum wage increased in 2015, workers with the lowest incomes—those whose wages were in the bottom 10 per cent—experienced much faster wage growth than those workers in states where no minimum wage change took place. This wage growth was particularly strong for women, who make up two-thirds of low-wage workers in the US.
There is absolutely no doubt that an increase in the minimum wage would address relative living standards and the needs of the low paid. These are workers who are still feeling the very real pain of the decision to cut penalty rates.
In a show of just how out of touch this government truly is, it says, 'Low-paid workers are often found in high-income households.' Go and visit a household in an Alice Springs town camp where I know of working mums supporting up to 10 or more family members all living in the same three-bedroom, one-bathroom home. Go and visit a family in a remote community where you can pay up to $9 for a lettuce and tell a young person working on a minimum wage there that they do not deserve a pay rise.
The Northern Territory is certainly a wonderful place to live, but it is not an inexpensive place to live, and that is the reality. It is tough for low-income workers, and it is about to get tougher with the GST cuts affecting the Territory's budget. Young Territorians in particular are going to find it tough. A decent increase in the minimum wage would mean an enormous amount to low-income earners. A strong minimum wage helps close the gap between rich and poor; it provides a much-needed economic boost; it means people have more money to spend; and it certainly assists small business and drives local economies.
Question agreed to.
I move:
That the Senate take note of the answer given by the Minister for Resources and Northern Australia (Senator Canavan) to a question without notice asked by Senator Rice today relating to forests in Victoria.
Minister Canavan and the government in general are living in a fantasy land when it comes to the impacts of native forest logging, where, just because you say something is sustainable, it therefore becomes sustainable. The reality is that intensive, industrial scale, clear-fell logging is as sustainable and long term as whaling and sealing were in their day.
The minister was totally ignoring the facts that are at play here when we are considering the future of our forests. The facts are that in the Victorian Central Highlands there is much less forest available for logging, because of the huge areas that were lost in the 2009 fires. The Victorian government has responded by recognising that, if we are going to have an industry reliant on those native forests, we need to cut back the rate substantially. And, if you cut back the rate to a sustainable level of what is currently available, that makes that level commercially unviable, and that is what is playing out now. On the other hand, if you keep on logging at the current rates, that timber will be all gone within just a few years. That is not long term. That is not sustainable. That is not going to be what saves the jobs of the Heyfield mill workers or is in the long-term interests of the Heyfield community.
The other critical factor, of course, is that the forests that are currently being logged at an unsustainable rate are the same forests that the critically endangered Leadbeater's possum requires to survive. If we log all of those forests, what is inevitable is that that will be the death knell for Leadbeater's possums. Now the mountain ash forests are recognised as a critically endangered ecosystem. The Leadbeater's possum is critically endangered. Unless we protect enough of that forest, that will be goodbye. The Leadbeater's possum will be gone on our watch.
So it was a huge concern that the only proposal that the minister provided in his answer to my question as to what to do about this situation is to bring forward extra years supply and to log protected areas. This is not sustainable. This is not in the interests of either the wood products industry or the environment. It is not going to save the Heyfield jobs; it is just going to be putting off the inevitable. Basically, it is like giving the whaling fleet open-slather access to whale sanctuaries.
The minister totally ignored the nub of my question, which was about the transition that is underway in the wood products industry in Australia, which needs to be supported, needs to be encouraged and needs to be completed. That is the transition out of that outdated, old, 'dig it up, log it, chop it down' mentality and the shift to plantations.
We are now in the situation where 85 per cent of the wood products being produced in Australia are coming from plantations. That is the future of the industry. Any forward-thinking government would be recognising that and saying, 'Okay, how do we shift now that remaining last bit of the industry to plantations?' They would not be propping up that damaging, outdated industry that is based on native forests.
The other critical factor is that, by completing that transition to plantations and protecting native forests, from a jobs perspective that is a win-win because you can then facilitate and allow the jobs in the recreation industries and the tourism industries to flourish. There is so much potential employment in those areas. We can have ongoing jobs in the wood products industry being based on plantations by increasing that 85 per cent to 100 per cent, and we can then unlock the tourism potential of our native forests.
It is a total furphy to say that if we do not log our forests we are going to import more. In fact, we are exporting hardwood sawlogs from our native forests. In Victoria there were 24,000 cubic metres of hardwood logs that were exported from our forests. This is not a matter of protecting international forests. This is just the industry going on a rampage. It is possible to end the forest wars. By transitioning the timber industry to plantations completely, we can be saving timber jobs; we can be protecting our forests for their wildlife and for their water and as carbon stores soaking up and storing that carbon, as we need to do; and we can be protecting our jobs for everyone—all Australians and all Melburnians—to enjoy.
Question agreed to.
by leave—On behalf of Senator Bushby, I present the fourth report of 2017 of the Selection of Bills Committee. I seek leave to have the report incorporated in Hansard.
Leave granted.
The report read as follows
SELECTION OF BILLS COMMITTEE
REPORT NO. 4 OF 2017
1. The committee met in private session on Wednesday, 29 March 2017 at 7.14 pm.
2. The committee recommends that—
(a) the provisions of the Carbon Credits (Carbon Farming Initiative) Amendment Bill 2017 be referred immediately to the Environment and Communications Legislation Committee for inquiry and report by 9 May 2017 (see appendix 1 for a statement of reasons for referral);
(b) the Civil Law and Justice Legislation Amendment Bill 2017 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 10 May 2017 (see appendix 2 for a statement of reasons for referral);
(c) contingent upon introduction in the House of Representatives, the provisions of the Criminal Code Amendment (Protecting Minors Online) Bill 2017 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 13 June 2017 (see appendix 3 for a statement of reasons for referral);
(d) contingent upon introduction in the House of Representatives, the provisions of the Parliamentary Business Resources Bill 2017 and the Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 be referred immediately to the Finance and Public Administration Legislation Committee for inquiry and report by 9 May 2017 (see appendix 4 for a statement of reasons for referral); and
(e) contingent upon introduction in the House of Representatives, the provisions of the Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017 be referred immediately to the Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 13 June 2017 (see appendix 5 for a statement of reasons for referral).
3. The committee recommends that the following bills not be referred to committees:
4. The committee deferred consideration of the following bills to its next meeting:
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017
ASIC Supervisory Cost Recovery Levy (Consequential Amendments) Bill 2017
National Vocational Education and Training Regulator (Charges) Amendment (Annual Registration Charge) Bill 2017
Petroleum and Other Fuels Reporting (Consequential Amendments Transitional Provisions) Bill 2017
(David Bushby) Chair
30 March 2017
APPENDIX 1
Proposal to refer a bill to a committee:
Name of bill:
Carbon Credits (Carbon Farming Initiative) Amendment Bill 2017
Reasons for referral/principal issues for consideration:
The bill makes potentially sig changes to how carbon credits are determined
Possible submissions or evidence from:
Environmental groups
Companies involved in carbon farming
Academic orgs
Department of Energy
Committee to which bill is to be referred:
Environment and Communications Legislation Committee
Possible hearing date(s):
Possible reporting date:
9 May 2017
(signed)
Senator Rachel Siewert
APPENDIX 2
Proposal to refer a bill to a committee:
Name of bill:
Civil Law and Justice Legislation Amendment Bill 2017
Reasons for referral/principal issues for consideration:
This Bill amends the Family Law Act 1975.
Family law has a significant and wide-ranging impact on Australian families, particularly in the context of relationship breakdown. The family law system plays an important role in the resolution of property settlements and the care of children.
It is appropriate and responsible for the Senate to properly examine the impact of proposed changes to family law.
Possible submissions or evidence from:
Family Law Council
Attorney-General's Department
Law Council of Australia
Family Court of Australia
Federal Circuit Court of Australia
Committee to which bill is to be referred:
Senate Legal and Constitutional Affairs Legislation Committee
Possible hearing date(s):
To be determined by the committee
Possible reporting date:
Wednesday 10 May
(signed)
Senator Anne Urquhart
APPENDIX 3
Proposal to refer a bill to a committee:
Name of bill:
Criminal Code Amendment (Protecting Minors Online) Bill 2017
Reasons for referral/principal issues for consideration:
This is legislation which proposes changes to the criminal law. The criminal law has a significant impact on the rights and obligations of the Australian people, including potentially the ability to see them deprived of their liberty.
It is appropriate and responsible for the Senate to properly examine the impact of proposed criminal laws.
Possible submissions or evidence from:
Attorney-General's Department
Australian Law Reform Commission
Australian Federal Police
Commonwealth Director of Public Prosecutions
Australian Human Rights Commission
Carly Ryan Foundation
Committee to which bill is to be referred:
Senate Legal and Constitutional Affairs Legislation Committee
Possible hearing date(s):
Friday 2 June or Friday 16 June
Possible reporting date:
Thursday 19 June
(signed)
Senator Anne Urquart
APPENDIX 4
Proposal to refer a bill to a committee:
Name of bill:
Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017
Reasons for referral/principal issues for consideration:
Interrogate the definitions of "parliamentary business" and "dominant purpose" to ensure community expectations are met.
Possible submissions or evidence from:
1. Chris Aulich- Professor of Public Administration , University of Canberra
2. Gilbert + Tobin Centre of Public Law
Committee to which bill is to be referred:
Finance and Public Administration Legislation Committee
Possible hearing date(s):
12 May 2017
Possible reporting date:
9th May 2017
(signed)
Senator Rachel Siewert
APPENDIX 5
Proposal to refer a bill to a committee:
Name of bill:
Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017
Reasons for referral/principal issues for consideration:
To consider and scrutinise the full detail and impact of the Omnibus Bill
Possible submissions or evidence from:
Ex-Service Organisations and other interested parties
Committee to which bill is to be referred:
Senate Foreign Affairs, Defence and Trade Legislation Committee
Possible hearing date(s):
To be determined by the committee
Possible reporting date:
13 June 2017
(signed)
Senator Anne Urquart
I move:
That the report be adopted.
I move:
At the end of the motion, add, "and,
(1) in respect of the Fair Work Amendment (Pay Protection) Bill 2017, the bill be referred immediately to Education and Employment Legislation Committee for inquiry and report by 15 June 2017.".
Question agreed to.
The question is that the amended report be agreed to.
Question agreed to.
The President has received letters requesting changes in the membership of committees.
by leave—I move:
That senators be discharged from and appointed to committees as follows:
Foreign Affairs, Defence and Trade—Joint Standing Committee—
Discharged—Senator Singh from 20 April 2017
Appointed—Senator McCarthy from 20 April 2017
Red Tape—Select Committee—
Discharged—
Senator Dastyari
Participating member: Senator Watt
Appointed—
Senator Watt
Participating member: Senator Dastyari
Question agreed to.
I move:
That this bill may proceed without formalities and be now read a first time.
Question agreed to.
Bill read a first time.
I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows—
This Bill introduces a measure that was announced in the 2016-17
Mid-Year Economic and Fiscal Outlook that will provide a two year trial of incentives aimed at increasing the number of eligible job seekers who undertake horticultural seasonal work, such as fruit picking.
The measure responds to concerns about the ability of the Australian horticulture industry to attract sufficient numbers of seasonal workers by introducing three incentives aimed at increasing the number of job seekers who undertake horticultural seasonal work.
The incentives will commence as a trial from 1 July 2017 for two years and will be capped at 7,600 participants over the two years. There are three incentives.
Under the first incentive, Newstart and Youth Allowance (Other) recipients who have been receiving those payments continuously for at least three months will have access to a Seasonal Horticultural Work Income Exemption. Under this exemption, they will be able to earn up to $5,000 each year without it being assessed under the social security income test.
A period during which a person did not receive Newstart and Youth Allowance (Other) because of employment income (known as an employment income nil rate period) will count towards the period of three months continuous receipt.
Eligible job seekers will be able to access the $5,000 income test incentive in each of the 2017-18 and 2018-19 financial years. Eligible job seekers who participate in the second year of the trial will have access to the $5,000 income test concession for up to 12 months from when they enter the trial in the second year. However, if they participate in the second year of the trial, any unused balance from the first year will expire.
The concession will only apply to earnings from specified horticultural seasonal work. Eligible employment for this measure will be seasonal, short-term employment in the horticulture industry picking and packing fruit, nuts or other crops in rural or regional Australia. The Employment Secretary may determine by way of a legislative instrument what constitutes qualifying seasonal horticultural work.
Employment could be directly with a farmer or with a contractor/labour hire company where the principal business is the supply of labour for harvest.
Qualification rules will be relaxed for this group so that they continue to qualify for Newstart and Youth Allowance (Other) while undertaking eligible horticultural seasonal work. The amendments in the Bill mainly relate to this incentive.
This income test concession will provide a strong incentive for jobseekers to participate in the trial and undertake horticultural seasonal work and a practical opportunity to build work experience and skills.
As an example, currently, a recipient of Newstart Allowance who is single and has no children can earn $104 a fortnight before their payment starts to be reduced and $1036.34 a fortnight before their Newstart Allowance reduces to nil.
Under this measure, if the Newstart Allowance recipient participates in the trial, they could earn up to $5,000 from qualifying horticultural seasonal work over a 12 month period and continue to receive the full rate of Newstart Allowance.
Under the second incentive, Newstart and Youth Allowance (Other) recipients who have been receiving those payments continuously for at least three months and participate in the trial would be eligible for a Seasonal Work Living Away and Travel Allowance of up to $300 each year, if they undertake horticultural seasonal work more than 120 km from their home.
This payment removes a disincentive to undertake seasonal work by recognising the additional expense that may be incurred by job seekers travelling significant distances from their principal place of residence to take up an eligible seasonal job.
The payment will generally be made on a weekly basis ($50 per week to a maximum of $300 over six weeks), although employment providers will have the flexibility to tailor the payment to suit the needs of the job seeker. For example, a provider may provide a greater amount up front to cover higher initial accommodation or transport costs.
There would be no requirement for the job seeker to acquit the payment. If a job seekers employment ends part way through a working week, the job seeker would only be entitled to the payment for the completed part of that week.
The Bill includes a provision so that the Seasonal Work Living Away and Travel Allowance would not be assessed as income for income support purposes.
Under the third incentive, Employment providers, including jobactive, Transition to Work and Disability Employment Services, will be paid a $100 per week placement incentive fee for a maximum of six weeks for each job seeker that they successfully refer to a seasonal job as part of the trial.
Providers will remain eligible for the payment for as long as the job seeker remains employed, for a maximum of six weeks, in the seasonal job.
This Seasonal Work Incentives measure is expected to cost $27.5 million over the forward estimates.
This amount includes funding for the Department of Social Services and the Department of Employment to evaluate the effectiveness of these incentives during the two year trial period. The evaluation will be completed before the end of the trial to enable the Government to consider whether incentives to encourage people to take up seasonal work should be continued.
Conclusion
The incentives for job seekers to undertake seasonal work will help to respond to the concerns of the Australian horticulture industry about their ability to attract sufficient numbers of seasonal workers.
They are aimed at helping to increase the number of unemployed Australians who participate in seasonal work, and therefore the number of seasonal workers available to work on Australian farms and orchards.
The incentives will also provide job seekers with a practical opportunity to enter the workforce and to build work experience and skills.
In the best interest of the Australian horticulture industry and job seekers, I seek the support of the Parliament for the passing of this measure.
Debate adjourned.
Pursuant to standing order 12, I lay on the table a warrant nominating Senator Leyonhjelm as an additional Temporary Chair of Committees when the Deputy President and Chair of Committees is absent.
On behalf of the chair of the Environment and Communications Legislation Committee, I present the report of the committee on the Great Australian Bight Environment Protection Bill 2016, together with the Hansard record of proceedings and documents presented to the committee.
Ordered that the report be printed.
I present additional information received by committees relating to estimates.
On behalf of the Chair of the Senate Standing Committee on Publications, I present the fifth report of the publications committee. I move:
That the report be adopted.
Question agreed to.
On behalf of the Parliamentary Standing Committee on Public Works, I present report No. 3 of 2017, Referrals made December 2016.
I present report 168 of the Joint Standing Committee on Treaties Certain Maritime Arrangements - Timor-Leste. I move:
That the Senate take note of the report.
Question agreed to.
I seek leave to incorporate a tabling statement in Hansard.
Leave granted.
The statement read as follows—
The statement was unavailable at the time of publishing
On behalf of Senator Sterle, I present the report of the Rural and Regional Affairs and Transport References Committee on airport and aviation security at Australian airports, together with the Hansard record of proceedings and documents presented to the committee.
Ordered that the report be printed.
I move:
That the Senate take note of the report.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
I present three government responses to committee reports as listed on today's Order of Business, as well as the government's response to the report of the Legal and Constitutional Affairs Legislation Committee on the Migration Amendment (Health Care for Asylum Seekers) Bill 2012. In accordance with the usual practice, I seek leave to incorporate the documents in Hansard.
Leave granted.
The documents read as follows—
Attachment A
Summary of consultation for the Jobs for Families Child Care Package
The Jobs for Families Child Care Package (the Package) reflects extensive consultation and expert analysis over several years. The Package is a response to the Productivity Commission's report Childcare and Early Childhood Learning, which was the largest review of child care since the 1990s. The Productivity Commission's inquiry was followed by a Regulation Impact Statement consultation process, two Senate Inquiry processes and ongoing consultation with the sector by the Department of Education and Training. An outline of these consultation processes is provided below.
The Australian Government will continue to consult with the sector and with the Senate cross-bench on the Package in 2017 to ensure these reforms achieve the objectives of increasing affordability, flexibility and accessibility of the child care system for families.
Attachment B
Senator the Hon Simon Birmingham
Minister for Education and Training Senator for South Australia
MC16-001696
Dear BBF Funding Recipients and Services,
I am writing to clarify the arrangements being put in place to support Budget Based Funded (BBF) services to operate under the Jobs for Families Child Care Package (the Package).
BBF services play an important role in their community, providing much needed early learning and school aged care or family support services, often in challenging circumstances. I am committed to ensuring that valuable community services continue to operate beyond the introduction of the Package. I want to assure you that you will be able to continue to tailor the delivery of your service to the needs of families in your communities. This includes delivering culturally focussed and integrated services to ensure that the needs of all children are met. The Department of Education and Training is working hard to support BBF funding recipients to enable your service to operate effectively in the new child care system. To this end, I thought it would be useful to set out my commitments to you and your communities.
Firstly, I can assure you the changes under the Package do not come into effect until July 2018. Your current BBF funding agreement ends on 30 June 2017 and as per usual practice, in 2017 we will issue funding agreements for the 2017-18 year. You should not be concerned that BBF funding will cease before the introduction of the Package.
The next 18 months is a period of transition. I will ensure my department continues to work closely with you during this time and beyond, to support your service's successful transition to the Child Care Subsidy (CCS). This work has commenced with PricewaterhouseCoopers (PwC) who have been preparing assessments of the capacity of your service to operate in the new child care system. As you know, this work has involved PwC visiting funding recipients to develop a good understanding of your service, families in your local communities and to better understand the current business and operating model in the context of the Package. PwC has also worked with funding recipients on a range of options for your service in transitioning to the new arrangements. This has been documented in your transition plans. Centre-based services should have received a copy of their plan, and mobile services will receive theirs by early 2017, if not before. This work has been conducted on a service-by-service basis because each service is unique and we want to ensure that the good things already happening continue to take place after the transition to the new package.
This is important work, but it is just the beginning. There will be more support commencing in early 2017 based on the needs identified in the transition reports. PwC and my department will work closely to tailor this support and ensure key issues are addressed.
There are a number of BBF services for which the core purpose is not child care, but family or community support. The Prime Minister, the Hon Malcolm Turnbull MP, has given a firm commitment that we will identify alternative funding sources for these services and support them to transition to these new arrangements. I am working with my ministerial colleagues to find the best solution for these services and the PwC reports will support this work.
As you know, the current BBF program is capped and closed to new providers and does not have capacity to respond to changes in demand or to enable new services to open where they are needed. As a result, some BBF services receive tens of thousands of dollars per child while others have to manage on less than $100 per child. The total funding available for BBF services has remained stagnant in real terms, while funding for mainstream child care has increased steadily for many years. I understand that some stakeholders have called for a separate grant fund for Aboriginal services. To do this would create these same issues, whereby artificial limits would be set, and services would not be paid according to the numbers of children that attend. I want to ensure that services supporting our most disadvantaged families have access to the same opportunities for additional funding available to other child care services.
The Package to be introduced in July 2018 has been designed to support a diverse range of services so that they have the flexibility to adapt to the needs of local families. As part of these reforms, families and BBF services will be able to access funding streams they have not been able to access previously. When combined, these funding streams will exceed the funding available through the BBF program:
I note that $110 million is available through CCCF year on year, which is in addition to the ACCS and the uncapped CCS. Together, these three elements of the Package will offer significantly more funds than currently available through the BBF program.
I have taken on board concerns raised with me about the competitive nature of the CCCF. Based on this feedback, I have asked my department to structure the CCCF with the following key features for BBF services:
These are important measures that I hope will give you assurance that we understand the challenge facing BBF services, your communities and families, in transitioning to the Package. That said, we have an iterative transition process in place to carefully inform the final arrangements and I am committed to seeing that process through, particularly since there is plenty of time to do so.
I hope I have been able to reassure you that I take very seriously my commitment to ensure that the good work of BBF services continues to serve families and children well beyond this transition process. Please continue working closely with staff in my department, who are also committed to ensuring this transition is successful for BBF services.
Further information on the Jobs for Families package is available at: www.education.gov.au Overview Jobs for Families Child Care Package.
Yours sincerely
Simon Birmingham
Australian Government response to the Senate Education and Employment References Committee report: Access to real learning: the impact of policy, funding and culture on students with disability
March 2017
Introduction
The Australian Government notes the report by the Education and Employment References Committee on current levels of access and attainment for students with disability in the school system, and the impact on students and families associated with inadequate levels of support, Access to real learning: the impact of policy, funding and culture on students with disability.
The Senate References Committee calls on the Government to commit to funding schools on the basis of need. The Turnbull Government is committed to needs-based funding to enable all students, including students with disability, to achieve high quality outcomes and to participate in an inclusive and high quality education system that is responsive to their needs.
Unfortunately, as a result of Labor's negotiations, current funding levels are determined by historic levels, special deals and complex transition arrangements that vary by states and sector. The result is that schools with the same level of need attract different levels of federal funding. The Government is determined to put in place a new, simpler and fairer funding model that distributes funding according to need and will work with states and territories and non-government education authorities to make this happen.
The Australian Government will continue to grow funding to schools each and every year from a record $16.1 billion in 2016 to $20.2 billion in 2020. This means that total funding of $73.9 billion will be provided to government and non-government schools over the period 2016–17 to 2019–20.
This builds on the already substantial increases in Commonwealth recurrent funding from schools over the 2014 to 2017 period during which more than $5.2 billion has been notionally attributed to the loading for students with disability from 2014 to 2017, including nearly $1.4 billion in 2016 and almost $1.5 billion in 2017. In the 2016–17 Budget the Government announced additional funding of $118.2 million in 2016 and 2017 for schools to support students with disability. This funding is on top of the increases in funding that the Government is providing to all sectors across all states and territories through the existing loading and targeted to those schools with the greatest need.
From 2018 the Government is committed to school funding arrangements that are affordable, include a contribution for every student and are needs-based, transparent and easy to understand as well as predictable and fair. Importantly, funding will be used to drive real reforms that ensure all children have the support they need to succeed no matter what school they go to or where it is located.
The Government will work with states, territories and the non-government sector to deliver on the evidence-based priority reforms set out in Quality Schools, Quality Outcomes.
All Australian governments and sectors are working together to reforms aimed at improving the lives of people with disability. This includes broad reforms such as the National Disability Strategy 2010–20 and the National Disability Insurance Scheme, as well as specific reforms to improve education outcomes for students with disability. In particular, the Government put in place the Disability Standards for Education 2005 (the Standards) to ensure students with disability can access and participate in education on the same basis as other students.
In December 2015, revised Accreditation Standards and Procedures were agreed by all Education Ministers that provide specific guidance to providers on how to ensure their students meet the Graduate level of the Australian Professional Standards for Teachers. These include that teachers should demonstrate knowledge and understanding of teaching strategies and legislative requirements to support participation and meet the learning needs of students across the full range of abilities, including students with a disability.
The Government has also supported the capacity of teachers to address the needs of students with disability through: funding the Australian Special Education Principals' Association to lead the development of a suite of national resources to support inclusive learning environments; providing funding to enable free access to an AUSPELD learning difficulties and dyslexia resource; providing additional support and professional development through the implementation on the Nationally Consistent Collection of Data on School Students with Disability (NCCD); and funding the Positive Partnerships program under the Helping Children with Autism initiative.
The Government is disappointed the Committee did not call on state and territory education authorities to appear at the Inquiry to share examples of good education practices providing for the specific needs of students with disability that are currently occurring systemically in Australian schools. While the Senate References Committee heard some examples of schools, principals, teachers and parents creating a positive environment for students with disability, the report primarily focused on the barriers faced by students with disability.
There is considerable work ahead to ensure students with disability are able to achieve optimal educational outcomes. However, it needs to also be acknowledged that there has been significant systemic reform in the education of students with disability over the past decade.
Background
On 17 June 2015, the Senate referred the inquiry into current levels of access and attainment for students with disability in the school system, and the impact on students and families associated with inadequate levels of support to the Education and Employment References Committee for inquiry and report.
The Committee held four public hearings in Sydney, Brisbane and Melbourne between 18 September to 20 November 2015 and almost 300 submissions were received.
The Senate References Committee Report on Current Levels of Access and Attainment for Students with Disability in the School System, Access to real learning: the impact of policy, funding and culture on students with disability, was tabled and released on 15 January 2016. The report included ten recommendations.
Response to individual recommendations
Recommendation 1
The Senate References Committee recommends that the government commits to funding schools on the basis of need, according to the Gonski Review.
The Government supports this recommendation in-principle.
The Government strongly believes that funding should be directed where it is needed most, recognising the different costs of educating particular groups of children, including students with disability.
Under the arrangements negotiated by Labor, Commonwealth school funding is currently determined primarily based on history and special deals, not by need. Current arrangements are complex and inconsistent across states and sectors, resulting in schools with the same need attracting different levels of Commonwealth funding depending on which state they are in. Further, under these arrangements, some schools will not reach their theoretical funding allocation this century.
These arrangements are not what were intended by the Gonski review panel, with panel member Mr Ken Boston describing them as a "corruption" of their findings.
This government is committed to moving from 2018 to a fairer and more sustainable funding model that distributes funding to those that need it most. The Government firmly believes that a student should attract Commonwealth funding based on need and not based on where they live in Australia.
Recommendation 2
The Senate References Committee recommends that the government fund all students with disability on the basis of need by reversing its cuts to the final two years of the Gonski Reforms.
The Government does not support this recommendation.
There have been no cuts to funding. Commonwealth schools funding continues to grow each year, including from 2018. In fact, the Australian Government is investing a record level of school funding that is growing from $16.1 billion in 2016 to $20.2 billion in 2020.
For the 2018 to 2020 school years, recurrent schools funding will be indexed by an education specific indexation rate of 3.56 per cent, with an allowance for changes in enrolments.
This builds on the already substantial increases in Commonwealth recurrent funding from schools over the 2014 to 2017 period during which more than $5.2 billion has been notionally attributed to the loading for students with disability from 2014 to 2017, including nearly $1.4 billion in 2016 and almost $1.5 billion in 2017.
While funding is important, evidence shows that what you do with that funding matters more. Despite significant funding growth over the past decade, Australia is failing to demonstrate progress in improving educational outcomes for our students. This is why the Commonwealth is ensuring that future funding is linked to evidence based priority reforms set out in Quality Schools, Quality Outcomes.
Recommendation 3
The Senate References Committee recommends that the government heeds the warnings of witnesses that linking school funding to the Consumer Price Index will result in funding cuts in real terms and reduce access to education for students with disability.
The Government notes this recommendation.
In the 2016–17 Budget the Government committed to recurrent school funding indexed by an education specific indexation rate of 3.56 per cent, with an allowance for changes in enrolments to maintain growth in Commonwealth school funding for the 2018-2020 school years at a rate that better reflects the increasing costs of schooling.
Recommendation 4
The Senate References Committee recommends that the government keeps its commitment to use the Nationally Consistent Collection of Data on School Students with Disability to deliver more funding for students with disability based on their individual needs in 2016.
The Government supports this recommendation.
The Government delivered its commitment to provide funding informed by the NCCD for students with disability from 2016. In the 2016–17 Budget the Government announced additional funding of $118.2 million in 2016 and 2017 for schools to support students with disability. This funding is on top of the increases in funding that the Government is providing to all sectors across all states and territories through the existing loading. The funding is based on national NCCD data for each sector, in recognition that the quality of the NCCD data at school level is still evolving.
While the Government recognises the potential of the NCCD to better target funding by recognising all students with disability and their diverse levels of need, it also recognises that the NCCD data quality needs to mature. The Government also expects that future tools used for funding students with disability should, where possible, be applied consistently across both the Commonwealth and the states and territories.
The Government will continue to work with states and territories and the non-government sector to ensure that the NCCD is as robust as possible to inform decision makers on how best to target funding for students with disability.
The Coalition Senators' additional comments highlight an important point that although the Government provides substantial funding for students with disability in government and non-government schools, the majority of funding for students with disability in schools comes from states and territories.
Recommendation 5
The Senate References Committee recommends that the government release the results of the Nationally Consistent Collection of Data on School Students with Disability for 2015, and previous years, as a matter of urgency.
The Government supports this recommendation.
The Government acknowledges that members of the public are interested in the publication of the data collected via the NCCD and has advocated strongly for the release of data which shows the distribution of students with disability across states and territories and sectors. As NCCD data is jointly owned by state and territory governments and the Australian Government, publication of data requires the agreement of all education ministers.
The results of the 2015 NCCD were published on the Education Council website in December 2016.
In December 2012, Education Council agreed that the data for 2013 and 2014 would not be released as these were transitional years and not all schools participated in the NCCD.
Recommendation 6
The Senate References Committee recommends that a dedicated Disability Discrimination Commissioner be reinstated to the Australian Human Rights Commission.
The Government supports this recommendation.
Mr Alastair McEwin was appointed to the position of Disability Discrimination Commissioner commencing on 29 July 2016 for a five year period. Mr McEwin brings to the position both lived and professional experience of disability.
Recommendation 7
The Senate References Committee recommends that the government works with states, territories and school systems to:
a) Establish a national approach to ending the bullying of students with disability. This should be supported with programs and resources for schools, teachers and students.
b) Make it mandatory for all initial teacher education courses to ensure beginning teachers enter the classroom with best-practice skills in the inclusion of students with disability. The government should also work with states and territories to ensure current teachers, principals and support staff are supported to develop inclusive education skills in areas such as universal design for learning, differentiated teaching and cooperative learning.
c) Investigate the establishment a national qualification standard for teacher aids and assistants to ensure they have the knowledge and skills required to support learning for all students. States and territories should also provide guidance on the role of support staff in inclusive classrooms.
d) Prioritise the development of a national approach to modifying the curriculum for students with disability. This should include implementation tools and professionals development support for teachers to ensure that all students are supported to learn to their fullest potential.
e) Better support school systems, teachers and principals to continually improve the accuracy and effectiveness of the Nationally Consistent Collection of Data on School Students with Disability program.
The Government supports this recommendation in principle.
The Government is committed to continuing to improve support for students with disability and will collaborate with government and non-government education authorities to identify opportunities to expand and strengthen work already underway in these areas.
The National Safe Schools Framework (NSSF) is a high level framework, endorsed by all Education Ministers, that supports Australian schools to develop and implement whole of school student safety and wellbeing policies and practice. The Government collaborates with government and non-government education authorities to create safe and supportive environments through this framework and the Safe Schools Hub website (www.safeschoolshub.edu.au), which provides a comprehensive range of information and resources on student wellbeing issues.
The Australian Professional Standards for Teachers make explicit the elements of high quality teaching. A national approach to the accreditation of initial teacher education has been in place in Australia since 2013, with revised national accreditation standards and procedures agreed by Education Ministers in December 2015. Both the Professional Standards and accreditation standards and procedures include elements to support the participation and learning of students with disability. Note that responsibility for ongoing professional development for teachers and other school staff rests with states and territories.
Following the Review of the Australian Curriculum in 2014, Education Council approved key areas of further work proposed by the Australian Curriculum, Assessment and Reporting Authority (ACARA) to improve accessibility to the Australian Curriculum for all students, including students with disability. This work is currently underway with ACARA engaging with experts in the field of education for students with disability, states and territories and their curriculum authorities, with an initial focus on assisting teachers to better support students with significant intellectual disability.
As an example, in 2015-16 ACARA partnered with schools in four different jurisdictions to film illustrations of practice that will support students with disability to access the Australian Curriculum.
The Education Council is also progressing work to better support school systems, teachers and principals to improve the accuracy and quality of NCCD data. This includes significant training and support for schools on the NCCD model, Disability Discrimination Act 1992 and the Standards and independent reviews of the quality and consistency of the data at the national level.
Recommendation 8
The Senate References Committee, in light of the limitations of the evidence presented, recommends the government work with states and territories to establish a process for the collection and publication of information about levels of access and attainment for students with disability. This should include information about:
a) whether students attend school part or full time;
b) rates of home schooling and distance education;
c) educational attainment;
d) rates of restrictive practices and seclusion;
e) suspension and expulsion rates;
f) school completion;
g) availability of specialist support for teachers and principals;
h) workforce skills and the availability of professional development in inclusive education for teachers and principals;
i) access to allied health and interdisciplinary support; and
j) bullying and wellbeing.
The Government supports this recommendation in principle.
The Government supports the need for better data and evidence about students with disability in school education and will continue to work closely with states and territories through the Education Council to develop a better evidence base to support policy and program responses.
For example, the recent DraftReport by the Productivity Commission into the National Education Evidence Base released on 6 September 2016 recognises that the Nationally Consistent Collection of Data on School Students with Disability should help to improve the monitoring of outcomes of students with disability and encourage a more consistent approach for planning and accountability of governments and school systems for them.
Recommendation 9
The Senate References Committee recommends the government work with states, territories, experts, stakeholders, school systems, parents and students to establish a national strategy to improve the education of students with disability. The strategy should aim to:
a) recognise all students with disability as learners and drive the cultural change required to achieve this, particularly at a school leadership level;
b) define the goals and priorities for improving the educational outcomes of students with disability, set clear timelines for their achievement and report publically on progress;
c) increase school participation and access rates for students with disability;
d) close the gap in Year 10 and Year 12 completion;
e) ensure all students with disability can access adjustments and interdisciplinary support that will maximise their learning potential;
f) ensure all students with disability benefit from evidence-based, best practice programs which lead to improvements in access and attainment;
g) improve the accountability at a system and student level for ensuring better learning outcomes for students with disability;
h) support schools, teachers and principals to close the gap between research and classroom practice;
i) establish best-practice ongoing professional development for teachers, principals and others who work in the school system;
j) include students with disability and their families in the development of the educational plan for their child, and encourage the meaningful ongoing engagement of parents;
k) establish a national inclusion measure for schools; and
l) establish independent review and complaints mechanisms so parents, teachers and students can have full confidence in the system.
The Government supports this recommendation in principle.
The Government is committed to continuing to improve support for students with disability and will collaborate with government and non-government education authorities to identify opportunities to expand and strengthen work already underway in these areas.
The Australian Government and state and territory governments already have in place the National Disability Strategy 2010—2020 (the Strategy) which was signed by COAG in 2011. The Strategy provides a framework for action to be taken at all levels of government across a range of areas including education and training, employment, housing, health and wellbeing, personal and community support.
The Learning and Skills policy direction areas under the Strategy encompass: strengthening the capability of education providers to deliver inclusive high quality education programmes; focusing on reducing the disparity in educational outcomes for people with disability and others; ensuring educational reforms are responsive to the needs of people with disability; and improving transition pathways.
Requirements already exist to support the rights of students with disability through the Standards. If parents, teachers or students have complaints under the Standards, they can report to the Australian Human Rights Commission, which is an independent statutory authority. It has the power to investigate and attempt to conciliate complaints of disability discrimination under the Disability Discrimination Act 1992.
In terms of the ongoing professional development of teachers, this responsibility lies with states and territories. Schools have autonomy to spend funds received from their state or territory and the Australian Government in line with their local requirements.
The Government contributes to these efforts through a range of activities and initiatives previously mentioned, including: development and provision of professional learning resources for schools, teachers and principals on the NCCD; funding the Australian Special Education Principals' Association to develop a suite of national resources to support schools to build inclusive learning environments; and ongoing funding for the Positive Partnerships initiative which provides professional development for teachers as well as support for parents and carers of students with autism.
Recommendation 10 The Senate References Committee recommends the government works with states and territories to end restrictive practices in schools, consistent with the recommendations of the 2015 Senate Inquiry into violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability.
The Government notes this recommendation.
The Government response to the recommendations from theSenate Community Affairs Reference Committee Report: Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability was tabled in Parliament on 3 March 2017.
Legal and Constitutional Affairs Legislation Committee report:
The Migration Amendment (Health Care for Asylum Seekers) Bill 2012 (the Bill)
March 2017
Legal and Constitutional Affairs Legislation Majority Report:
1. The Committee recommends that the terms of reference for the Immigration Health Advisory Group (IHAG) should explicitly state that IHAG ' s role includes the oversight and monitoring of health services to offshore entry persons in regional processing centres.
Partially supported. The Immigration Health Advisory Group (IHAG) was a body established by the Secretary of the Department of immigration and Border Protection to advise the department in relation to immigration detention health issues. In December 2013 the Secretary disbanded IHAG and established the role of Independent Health Advisor (the Advisor). The Advisor established a panel of experts from which to seek advice—the Independent Health Advice Panel (IHAP). IHAP meets quarterly.
The Advisor undertook a review of health across the Portfolio and recommended the establishment of a centralised health structure led by a First Assistant Secretary with a combined role of Chief Medical Officer for the Department and Surgeon General for the Australian Border Force.
In September 2015, Dr John Brayley was appointed as the Chief Medical Officer (CMO) of the Department and Surgeon General (SG) of the Australian Border Force. The CMO/SG oversees health standards and health related matters across the whole portfolio, including detention health, immigration health, and workplace health and safety and has overall responsibility for providing expert clinical and high level strategic advice to the Executive.
The CMO/SG can draw upon the IHAP for advice as required on portfolio wide health matters. This may include specialist advice on specific incidents, cases of concern, systemic issues, and departmental policies and processes. As independent expertise, IHAP members are expected to give impartial advice in line with their area of expertise in clear and transparent terms.
The Terms of Reference (ToR) for the IHAP have been changed to recognise the role of the CMO/SG. The draft ToR now includes a Clinical Governance function for the IHAP to "...include monitoring and giving advice on key clinical performance indicators, service data, and incident data. It will advise on perceived clinical risks and measures in place to improve the quality of services. The IHAP functions will cover the breadth of health services across the portfolio, with a focus on:
"... providing advice to the CMO/SG on policies and procedures that may affect the health of people in immigration detention or those who are receiving health services at Regional Processing Centres and in the community."
2. The Committee recommends that the terms of reference for IHAG should include provision for IHAG to:
Partially supported.
While IHAG has been disbanded, the draft Terms of Reference for the IHAP includes a Clinical Governance function for the IHAP to "...include monitoring and giving advice on key clinical performance indicators, service data, and incident data. It will advise on perceived clinical risks and measures in place to improve the quality of services."
Additionally, Joint Advisory Committees have been established with the Offshore Processing Centres host governments (the Government of Nauru and the Government of PNG). Both Committees focus on a wide range of matters relating to the operation of the Offshore Processing Centres, including health matters, drawing on the advice of independent health professionals as required.
3. The Committee recommends that the Department of immigration and Citizenship should be required to consult with IHAG on the development and design of all aspects of the Australian Government ' s policy to send asylum seekers to regional processing centres.
Partially supported.
While IHAG has been disbanded, the draft Terms of Reference for the IHAP includes the provision that, "The CMO/SG will request the advice of IHAP members on portfolio wide health matters, as well as health issues that arise in the onshore detention network and RPCs..."
4. The Committee recommends that IHAG ' s terms of reference should include the requirement that IHAG provide the Minister with a report on its work at least every six months, and that the Minister make that report publicly available.
Not supported. IHAG has been disbanded.
The CMO/SG oversees health standards and health related matters across the whole portfolio, including detention health, immigration health, and workplace health and safety and has overall responsibility for providing expert clinical and high level strategic advice to the Executive. The Minister would be briefed on significant issues as appropriate, as these issues arise.
5. The Committee recommends that the Minister table in the parliament a response to all reports by IHAG, within three months of those reports being made public.
Not supported. IHAG has been disbanded.
6. The Committee recommends that the health expertise represented on IHAG should also include a representative from a disability organisation.
Partially supported. While IHAG has been disbanded, the draft Terms of Reference for the IHAP states that, "Members of the Independent Health Advice Panel (IHAP) are appointed by the CMO/SG to provide expert independent advice to the Department in their area of practice or research."; The Terms of Reference also provide for, "New members may be added should additional expertise be needed in areas of practice, not presently covered by the panel. At times panel member's expertise may be augmented by practitioners in specific areas who are asked to consider an issue. These practitioners may not be formally asked to join the panel on an ongoing basis, unless their specific area of expertise is needed over time."
This may include professionals with a background in disability, if required.
7. The Committee recommends that the Senate should not pass the Bill.
Supported. The Bill has lapsed.
Dissenting Report by the Australian Greens:
1. Recommend that the Senate should pass the Bill.
Not supported. The Bill has lapsed.
2. Recommend that the Bill be amended to further clarify the powers and responsibilities of the Panel, including its power to access detention facilities without notice and establishment of arrangements to monitor the implementation of the Panel ' s recommendations.
Not supported. The Bill has lapsed.
3. Recommend that the Bill be amended to establish the Independent panel under the office of the Commonwealth ombudsman.
Not supported. The Bill has lapsed.
4. Recommend that the Bill and explanatory memorandum be amended to clarify the role of the Panel with regard to assessing the health of individuals, to make it clear that this is to be done in the context of investigating system-wide problems only and not on a routine or clinical basis.
Not supported. The Bill has lapsed.
5. Recommend that the Bill be amended to allow for representation on the panel by persons with expertise in disability.
Not supported. The Bill has lapsed.
6. Recommend that, if the Bill is not passed, the terms and composition of the Immigration Health Advisory Group be amended so that its reports and recommendations to the Minister are tabled in parliament, that the minister is obliged to respond to those recommendations, and that IHAG must be consulted on the design of the offshore processing regime.
Not supported. The Immigration Health Advisory Group was disbanded in December 2013.
I table a document relating to the order for the production of documents concerning the Northern Australia Infrastructure Facility and the Export Finance and Insurance Corporation.
by leave—I move:
That Senator Brown be granted leave of absence for 30 March 2016, for personal reasons.
Question agreed to.
I rise today to speak to the Human Rights Legislation Amendment Bill 2017 that has been tabled in this parliament and that we have spent the last few days debating. It strikes me that this piece of legislation is an awful waste of time for this chamber, seeing as we know that the government does not have support to get this legislation through and we know that it is purely an exercise to appease the right-wing rump on the Prime Minister's back benches. We know that this bill is causing a lot of concern, anxiety and worry to people right across this country.
The Racial Discrimination Act is a law that is meant to protect people. It is meant to ensure that members of our community feel safe, by protecting them from racial vilification, from being humiliated because of who they are, where they were born, their family background and who they are as a human being. It is meant to protect people from feeling lesser than others. It strikes me, listening to the debate in this place over the last few days, that this bill has been put forward not to make people feel protected or safe in our communities but to somehow protect the people who want to spew hatred. The debate has been absolutely backwards. It has all been about the right for people to behave in ways that are pretty nasty and to belittle others. Somehow giving rights to the racists is more important than protecting a piece of legislation that is designed to ensure that every person in our community can feel safe—safe in who they are and safe to catch a bus without thinking that, just because they happen to have a Greek, Italian, Chinese, Malaysian, Fijian or Muslim family background, they may be vilified in public.
I think it is a really sad day for this parliament that we are going to be sitting late into the night because there are some people in this place—some people on this Prime Minister's government benches—who desperately want to take away people's right to feel safe and secure in their own communities. It is, sadly, an indictment of this parliament that we are allowing hours and hours of debating time to give rights to a bunch of racists, to people so they can be meaner and nastier—to say, 'That is okay. That is the type of society that people want to live in.' Well, it is not.
Australia has such a rich history of embracing multiculturalism, and we have done it very, very well. When you travel to other parts of the world, one of things that really stick out when you tell people that you are from Australia is what a successful multicultural country we are seen as. Rather than debating a piece of legislation that appeases the trolls, we should be finding ways to strengthen and embrace the richness of our multicultural diversity. Why on earth are we spending hours debating what rights racists and bigots should have, instead of what we can be doing to support, and show empathy and compassion for, those who are already feeling pretty under fire in our communities right now?
Let us be totally honest about what has dominated this debate to date. It is about a bunch of people who want to vilify, in particular, Muslims—and we know that because we heard Senator Roberts, only two days ago, say some of the most disgusting and awful things about people just because they happen to be of Muslim faith. He is a man who has particular privilege. He is in the Senate; he gets to stand up here and say the awful things he wants to say, and no-one can do anything about it. That is what privilege looks like. But with privilege comes responsibility. We have a responsibility as leaders in this chamber and in this parliament to stand up for people who do not have a voice—to ensure that somebody who is being vilified or feels under fire in our community does not become alienated just because of who they are, where they were born or who their parents are, or whether they wear a headscarf or not. The anti-Muslim crusade that has been spewed by One Nation, from that corner of the chamber, over the last week has been revolting. The truth is that they can say anything they want because they have parliamentary privilege.
We are seeing hours and entire days of this chamber dominated by a bill that is entitled 'Human Rights Legislation Amendment' when it really should be 'trolls amendment bill'. This is about appeasing a bunch of privileged, nasty racists and giving them more protections, and weakening the protections of people who genuinely, and worryingly, need more protection.
I have met a lot of young Muslim women in my time as a senator in this place—16- and 17-year-old Hazara girls from Adelaide, or university students who have come to Australia with their families because their dads and their mums believe their daughters have the right to a good education and want their daughters to get a good education. They want their daughters to be able to succeed at university. They move their families to Australia so that their girls can be the best they can be and do what it is they want to do. What I talk to these young women in my home state and in other places around the country, their stories of how they feel, living in our communities, are horrifying. They cannot catch a bus without being concerned that someone is going to abuse them because they are wearing a headscarf, or walk down the street without somebody in a car yelling at them. They get home to find abuse on their Facebook page.
The people who behave like that do not need any more protection. They do not need any more rights. We should be finding ways to embrace diversity and look after those people who are already under fire, who are already feeling vilified and isolated. The trolls have been well represented in this place over the last couple of days, and it has not been a very pleasant thing to have to deal with in this chamber.
Senator Hanson yesterday challenged people to explain why she is referred to as a racist. She is upset that people call her a racist. You know what? If you say racist things, people are going to call you out for it. If you do not want to be accused of being a racist, don't say racist things. If you do not want people calling you out for it, keep your mouth shut. If you do not have anything nice to say, don't say anything. This is not about the thought police; this is about basic humanity and decency.
Senator Hanson said she did not believe that she was a racist. Well, when she said, 'I believe we are in danger of being swamped by Asians,' and, 'They have their own culture and religion, form ghettos and do not assimilate,' in her maiden speech in 1996, that sounded pretty racist to me. Of course, only last year she said:
… we are in danger of being swamped by Muslims, who bear a culture and ideology that is incompatible with our own.
The theme continued. Only this month she said:
… we have a disease, we vaccinate ourselves against it …
… Islam is a disease; we need to vaccinate ourselves against that.
This is pure hate coming from the mouth of one of our own senators sitting here in this place, someone who should be speaking up for decency and humanity, and all we get is the opposite.
In 2006, Senator Hanson said:
We're bringing in people from South Africa at the moment. There's a huge amount coming into Australia, who have diseases; they've got AIDS …
… They are of no benefit to this country whatsoever; they'll never be able to work.
… And what my main concern is, is the diseases that they're bringing in and yet no one is saying or doing anything about it.
Pauline Hanson is a racist. All you need to do is listen to her own words. But it is not people like her who need more protection; it is the people that she wants to spew hate on.
Senator Hanson-Young, just resume your seat, please. On a point of order, Senator Fawcett.
Two points of order, Mr Acting Deputy President: (1) to require the senator to address other senators by their correct titles and (2) imputation.
Senator Hanson-Young, I remind you that we refer to senators by their official title. In terms of imputation, I do not see a point of order, Senator Fawcett.
I was, of course, referring to Senator Hanson. This bill has been debated in this place in such a way that it is the rights of people to be racist and nasty versus the rights of others in the community to be safe. There is a lot of talk about the rights of racists and, apparently, the need for them to have more protection; not much talk about how we work to unify our country. Laws are made to protect people, not to protect the perpetrators. Australia is better than this—much, much better than this. That is why I am thankful that, despite the waste of time on this nasty, pathetic, small-minded piece of legislation today, it will be rejected because, deep in their hearts, most members in this chamber understand that Australians do not accept this.
Australians would prefer that we were debating things that really matter, such as the unemployment rate. We have record high youth unemployment at the moment. Where is the debate on that? We have growing inequality in this country. Where is our genuine discussion about that? I do not think there is any Australian—I do not know anyone—who works all day, picks up their kids after school, gets home, cooks the dinner, sits down and says: 'Oh, you should've seen what happened to me today. I just couldn't be a racist. What is this country coming to?' No-one in their right mind who believes in this country being the best it can be thinks that we need to weaken our laws. No-one believes that except the people who want to continue to get away with spreading hatred and stirring hatred for their own political gain.
One of the worst things about this piece of legislation is just how bitterly disappointing the Prime Minister has been in all of this. The Prime Minister has put this piece of legislation up purely for internal politics. He was prepared to give a space where we had Senator Roberts stand up and vilify whole swags of the Australian Muslim community. He gave Senator Roberts—as a middle-aged white guy—a platform to stand here and say all of these awful things under the privilege of the parliament. The Prime Minister allowed that to happen, all because he is worried about his own internal political fight in his own party. He is bitterly disappointing on this.
This bill never should have been brought to this parliament. The fact that this is a piece of government legislation that we are debating in government time says so much about the character of the Prime Minister, Malcolm Turnbull: weak, under siege and spineless. The leader of our nation is meant to be somebody who unites people, who talks about what makes us a great country, but instead he has provided an entire week of debate where we have seen members of our Australian community denigrated and vilified in our chambers of parliament. And our Prime Minister has sat by and said, 'Oh, this is what I want my last week of this sitting period to be dominated by.' He is weak, he is spineless and this is not a human rights amendment bill; this is Malcolm Turnbull's appeasement to the trolls bill. That is what is in this chamber today. That is what has to be voted down tonight.
I do not want to hear over and over again when we get to committee stage that we have to have more rights for people like Senator Hanson and Senator Roberts to stand in this place under privilege, kick members of other cultural groups and communities just because they do not like them and then have the gall to say that somebody might dare call their senators and their party a bunch of racists. If you don't want to be accused of being a racist, don't do it.
I rise this afternoon to speak on the government's Human Rights Legislation Amendment Bill 2017. As we all know, this bill contains three elements. It contains reforms to section 18C of the Racial Discrimination Act 1975, it amends the complaints-handling processes of the Human Rights Commission under the Australian Human Rights Commission Act 1986 and it also makes minor amendments to the Australian Human Rights Commission Act specifically sought by the commission to enhance its operation and its efficiency.
Let's first deal with the issue of amendments to the complaints-handling process. These amendments give effect to the majority of recommendations of the Parliamentary Joint Committee on Human Rights in its report on freedom of speech in Australia tabled in parliament less than a month ago. The bill also amends the Australian Human Rights Commission Act in line with the recommendations made by the commission itself, and these will have the effect of reducing its regulatory and administrative burden, reforming reporting requirements and clarifying the commission's conciliation process and governance arrangements. The commission wanted and in fact requested these specific changes.
These amendments will restore public confidence in the commission's processes and thereby restore confidence in the commission itself. They will bring certainty to both complainants and respondents to complaints of unlawful discrimination and they will ensure that all parties to a complaint are accorded procedural fairness.
But procedural amendments are clearly not enough. The language of section 18C of the Racial Discrimination Act has lost all credibility. The government now seeks to replace that language to better reflect the intent of the legislation, to make the Racial Discrimination Act clearer, to make the Racial Discrimination Act stronger and to make the Racial Discrimination Act fairer. The bill will amend the Racial Discrimination Act to redefine conduct prohibited by 18C to more accurately reflect and encompass the notion of racial vilification. It does this by removing the words 'offend', 'insult' and 'humiliate' and replaces them with the word 'harass', making it a prohibited act to harass or intimidate anyone on the basis of race. The bill also introduces an objective standard in which a reasonable member of the Australian community would judge that an act of harassment or intimidation validly occurs rather than the standard of a hypothetical representative of a particular group.
The Racial Discrimination Act 1975 is a law that was developed with good intentions. It was developed to defend the vulnerable, to articulate the principles of a successful multicultural society and to reflect our values of inclusion and acceptance. They are values that we hold dear. Australia is arguably the most successful multicultural nation on this earth. We value not just tolerance but acceptance, not just inclusion but immersion. Our migrant heritage has allowed our great nation to flourish economically and culturally. In 2017 you would be hard-pressed to find an Australian without friends, colleagues or extended family members who hailed from other countries and other cultures. And by far the vast majority of Australians treat those who hail from near and far with respect, with dignity and often with great admiration. The vast majority of Australians decry racism and denounce those who vilify others on the basis of race or behave menacingly towards those we embrace. This was the intention of the Racial Discrimination Act.
But what has become apparent is that the Racial Discrimination Act is a law that gave practical effect to making it unlawful to hurt people's feelings. The only sensible course of action is to redirect 18C towards more serious conduct. The law should provide protection from racial vilification and it should do so in a manner that is consistent with Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. However, this protection needs to be consistent with the right of freedom of speech, which is the cornerstone of a strong and healthy liberal democracy. Effective protection against racial vilification need not curtail freedom of speech. However, section 18C in its current form potentially does so and at the same time does not provide any extra protection from racial vilification. The amendments that have been proposed have a dual purpose: they provide stronger and clearer laws about what constitutes racial vilification of freedom of speech.
Strengthening the Racial Discrimination Act by removing the subjective terms 'offend', 'insult' and 'intimidate' and replacing them with the word 'harass' has a dual effect. Removing the words addresses the disconnect between the ordinarily understood meaning of these terms and the way they have been judicially interpreted, and the concept of 'harass' in section 18C will be clarified in the bill to also include a single act. It can include, for instance, a person who is verbally attacked on a bus, as Senator Hanson-Young expressed, purely on the basis of their race. That single act will constitute an act of harassment.
Australia's legal community has made it very clear that the act in its current form renders the law vulnerable to a High Court challenge, a concern that the Australian Law Reform Commission clearly stated in its 2015 report. I will quote directly from that report:
The inclusion of the words 'offend' and 'insult' raises a possibility that the High Court, in an appropriate case, might read down the scope of section 18C, or find it invalid.
But it is not just the Australian Law Reform Commission that has called for urgent reform to the Racial Discrimination Act. Countless others of varying political persuasions have been united in their concern over the ramifications of a law that limits free speech. Tony Morris QC was the barrister for two of the QUT students in the Prior versus Queensland University of Technology case. Tony Morris said:
For far too long, 18C’s wording has misled complainants, feeling entitled to object to the slightest insult or offence (the QUT case is an example par excellence), and respondents, imagining they are liable even for trivial discourtesies.
Section 18C has been the only law in Australia and perhaps the only law in the world by which liability is determined exclusively from the standpoint of would-be victims. Indeed, Warren Mundine, the former president of the ALP, told The Australian that the low bar of the existing law meant that we were not capturing the real racists, but catching normal everyday people like the Queensland university students and cartoonist Bill Leak.
Mr Shorten said that the proposed changes would open the gates to racists and take advantage of their new green light to insult, offend and humiliate. But Mr Mundine, a man I know you deeply respect, Mr Acting Deputy President Sterle, said:
I don't agree because I am a person who believes in free speech.
He said he was very supportive of the changes to 18C because it had become a big stick and there were lots of people who had been beaten with that stick. It stifles debate on confronting real issues.
Professor George Williams, a former ALP preselection candidate and the current dean of law at the University of New South Wales, also said:
Despite its limited operation, there is a good case for amending section 18C … the law should proscribe extreme forms of speech such as racial vilification and incitement to violence. Section 18C goes too far in applying to more minor forms of speech, in particular words that offend or insult.
I know that David Marr has been quoted in this chamber numerous times in this debate, and that is because he truly is a lion of the Left. As a journalist for The Guardian, on March 15 this year, he wrote:
I want 'offend' and 'insult' taken out of section 18C of the Racial Discrimination Act. I don't think the law should engage at that level. But I can't see that this country would be a better, freer place if 'humiliate' and 'intimidate' went too.
Dr Sev Ozdowski, the former Human Rights Commissioner, also said:
There should be no right to not be offended.
That is a quote from The Australian. He also said:
There is no doubt in my mind that racism needs to be curtailed, but I am yet to see solid empirical evidence that the insertion of section 18C into the act in 1995 diminished racism.
He also said to the Parliamentary Joint Committee on Human Rights:
… I have seen the chilling effects of that legislation on the discussion of any cultural characteristics. Questions about cultural practices are risky to ask. It also builds resentment and distrust. It creates a 'them and us' attitude. In my view, it may put multiculturalism at risk. It also creates enormous repercussions that damage the respondent to a complaint, regardless of whether the allegation is proved or not. Being accused of racism is a similar thing to being accused of sexual violence. It is having a very negative impact on people who are accused of racism.
And I note that Senator Hanson-Young did that very thing in this chamber this afternoon, which was very disappointing. Sue Gordon, who is a Western Australian magistrate and also an Indigenous community leader said:
Gagging people from fairly and legitimately held opinions is censorship. It is a basic denial of freedom of speech …
The underlying problem with the ill-considered effects of Section 18C is that if someone says they have been offended or humiliated, who is to challenge them? That is not what freedom of speech and the right to fairly voice your opinions is about
Clearly, section 18C is stymieing legitimate debate that is potentially useful and healthy. It is stopping that, not necessarily because the conduct would contravene section 18C, but because of the fear of legal action and the untold reputational, financial and often personal damage that might ensue from that. Importantly, what is the point of a law that does not do the exact thing it was meant to do? What is the point of a law that does not capture those who genuinely vilify, harass or intimidate? Our current law as it stands with 18C is not capturing those who abuse and menace a stranger on a bus, as Senator Hanson-Young pointed out.
Those people on a bus are certainly not protected by 18C now. A woman on a bus who gets abused purely for wearing a niqab or for being of a particular race or a particular colour is not protected at all by 18C. The current law is not capturing those who participated in the Cronulla riots or the anti-immigration protests in Melbourne or Sydney, wearing bandannas and anonymously menacing those of other races. Instead, it is capturing students, who were doing nothing more than decrying the unfairness of an Indigenous-only computer lab on social media. That is a very minor slight indeed. Instead, it captures cartoonists like Bill Leak, whose very role is to satirise.
The quote I find most compelling and most chilling in this debate is from the son of the late Bill Leak. In The Australian on 22 March, Bill Leak's son said:
If the supporters of section 18C of the Racial Discrimination Act, such as Bill Shorten and Tanya Plibersek, want to know what real vilification looks like, they need only look at what happened to my Dad and our family. It was genuinely offensive and placed him under enormous stress.
Justice Ronald Sackville said during the joint parliamentary inquiry:
… … …
That is exactly what this bill prescribes—the standards of a reasonable member of the community at large.
Rabbi Chaim Ingram is quoted as saying that the Rabbinical Council of New South Wales:
… would have very much welcomed a free and frank discussion on why we feel that certain sections [of the existing legislation] are preventative of free speech in as much as rabbis can’t get up and make a pronouncement on certain moral issues, that might insult [someone].
If rabbis are prevented from speaking on certain moral issues because of the Act, then it would be good to change that Act.
That was in The Australian Jewish Newson 10 April 2014.
We are a proud nation of migrants. We are a mature nation. We are mature enough to hold free-thinking, free-speaking debates. We know what is right and we know what is wrong. The vast majority of Australians stand up for those who are vulnerable. We self-regulate our own behaviour and we lead by example. We value our heritage, our diversity, our prosperity and our progress, but we are also a nation that values our freedoms, and freedom of speech is fundamental, elemental, to all other freedoms. We are a nation that shuns political correctness and rejects the scourge that encroaching identity politics has inflicted on our national conversation.
The changes proposed by the coalition to the Racial Discrimination Act are not something we should fear; they are something we should embrace. A liberal democracy demands no less and a parliament that truly represents its people must do no less. We need a clearer law, a stronger law, a credible law and a fairer law. Most importantly, we need a balanced law that will defend free speech and protect Australians from genuine racial discrimination.
I rise to speak on the Human Rights Legislation Amendment Bill 2017. Weakening section 18C was debated for a long time before reform was introduced into this parliament, but I still do not believe that the case has been made for reform. Section 18C functions well as it is. It strikes the right balance between freedom of speech and a legal incentive to protect victims of verbal or written abuse. Section 18C cannot be read in isolation; it needs to be read alongside section 18D, which has the exemptions to section 18C and protects freedom of speech. Section 18D says:
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
So it is clear that, if you have good and appropriate intentions, your right to freedom of speech is protected under section 18D.
But why should this area be regulated by law? The debate has clearly shown that one person's opinion is another person's hate speech. This debate has shown that in a world that is made up of a variety of people with different experiences, backgrounds, make up and different levels of resilience, we need a benchmark to let Australians know what is and is not appropriate. Section 18C does not restrict freedom of speech; it is about providing a benchmark for human decency.
While I believe it is important for parliament to undertake moments of self-reflection, to examine the culture it is creating, this debate is less self-reflection and more a political football for all parties involved. I am sympathetic to the pressures Prime Minister Turnbull has to deal with within his party, but the Liberal Party's issues of disunity should not be played out on the Senate floor at the expense of legislation that impacts the day-to-day lives of everyday Australians, small to medium businesses, veterans, pensioners, families and students.
The legislation that impacts on these groups, the majority of Australians, is what must be given priority in the Senate chamber. If the changes to the pension asset test were given the same amount of airtime as section 18C, the same amount of consideration within the Liberal Party and the same amount of opposition by Labor, perhaps hundreds of thousands of pensioners would not have had their fortnightly payments cut this year. If the freeze to the family tax benefit last week had been given the same amount of airtime, the same amount of consideration within the Liberal Party and the same amount of opposition by Labor as section 18C, perhaps hundreds of thousands of families would not lose almost $2 billion from their payments.
We have a budget coming up—our economy is in dire straits, according to the Liberal-National party—and instead of governing you are kicking around issues that are of no value for families and pensioners, who no longer know how they are going to put food on the table. The Liberal government is not running the country. The Liberal government, once again, through its own self-interest, is just wasting time.
The bill that we are discussing here this afternoon is a triumph for our parliamentary system of government, a triumph for the Senate, a triumph for the Senate committee process and, indeed, a triumph for the joint committee process of our parliament. Free speech is an issue I have taken a lot of time exploring. Indeed, much of my parliamentary time over the last two years has been spent on this issue—as well as other issues. This is my eighth speech on the importance of free speech in this country and reform to our free speech laws.
People would not be surprised to learn that people in this Senate chamber have different views about the suitability of the government's amendments to free speech laws in our country. That is actually not important, that is actually not a surprise. What is important, and what we can put our faith in, is the fact that there was a contentious issue and the government, in its wisdom—and I will come to the reasons for this in a moment—did decide to trust the parliament, through the Joint Parliamentary Committee on Human Rights, to explore this issue and canvass the breadth of issues and people's attitude to them.
I note that Senator McKim is in the chamber, as he often has been when we have been debating these points. What happened was that we had a very civilised process—and Senator McKim is nodding his head—where the community got to put their views. I would argue that, during the course of the parliamentary joint committee inquiry, the tempo of the debate subsided a bit, became a bit more civilised, became a bit more rational because people had a forum through which to impart their views. And then the committee—comprising government members, opposition members, the Australian Greens and independent members of the Senate and the House of Representatives—came to a report. Again, people should not be surprised that there were differences of opinion in that report. There should be differences of opinion, because our system of government is a parliamentary democracy, not a totalitarian regime. And what is interesting is that, in that body of evidence that was presented to the committee, there were many things that were actually agreed to by the committee. That is my first point. What the committee report found for itself, based on a substantial body of evidence, was that there was cause for reform of the Australian Human Rights Commission complaints processes. Tick. That was a very good and important outcome—reforms that are broadly endorsed.
Less surprising was that there was a difference of opinion about how the issue of free speech, through the lens of provisions 18C and 18D of the Racial Discrimination act, should be reformed. The government came to a view that reform is necessary. And that is where we are today. We are in the Australian Senate debating the suitability of these reforms because the parliament applied itself to the task, invited community opinions, a body of evidence emerged and, on the basis of that, the government is bringing some proposed reforms to the Senate and we are debating them here and we will get an outcome in the next day or two. That is a triumph for our parliamentary democracy.
Those of us who, like me, have been champions of reform do feel satisfied that, no matter what the outcome is today or tomorrow, a proper process has endured, a substantial body of evidence has emerged and the parliament, being a representation of the people in our community, in the Senate, will make a decision.
I would like to share with the Senate and put into the Hansard some paragraphs of a letter that I wrote to the Attorney-General in October last year, when I advocated for a parliamentary inquiry, when I specifically sought the government's endorsement of the Parliamentary Joint Committee on Human Rights to conduct that inquiry. By way of background, in the previous parliament I had the honour of being the chairman of the Parliamentary Joint Committee on Human Rights. I have some of the scars and some of the bruises to prove my tenure as chairman of that committee. I would not have established a Parliamentary Joint Committee on Parliament Rights had I been in the parliament at the time of its creation. I do not think it is necessary, because I think there are other forums in which to debate and discuss issues around civil liberties in our country—namely, the Senate Scrutiny of Bills Committee. But that is a debate for another time.
In arguing my case to the government that the issue was worthy enough for a parliamentary inquiry and that the Parliamentary Joint Committee on Human Rights was the right forum, I had this to say to the Attorney-General: 'Over recent months, there has been a broadening of community calls for the greater protection of free speech in Australia. This debate has been given added impetus by the prosecution of university students in Queensland on the basis of alleged racial discrimination for comments made on social media, as well as a decision by the Australian Human Rights Commission to launch an investigation of cartoonist Bill Leak and The Australian newspaper on the grounds that the cartoon was allegedly racist. Now, more than ever'—and I was writing at the very end of October last year—'it is appropriate to fully test community attitudes to whether our current laws are adequately protecting freedom of expression in Australia. I am writing to urge the government to give serious consideration to a parliamentary inquiry into the rights and responsibilities that arise from the exercise of freedom of expression in Australia and what improvements could be made to our current laws to optimise freedom of expression in our country.'
That is an important paragraph because what has been missing in this debate is this point: it is not enough just to change the law. That is the easy part, but, if the law should change, it is then beholden on all of us, most particularly those like me, who have been reformists, not just to champion free speech but to jump to the defence of people and condemn those things that could be said or might be said by ill-informed, unwise people trying to do harm. This is not just about giving people a capacity to act more freely with their speech; this is putting a responsibility on each and every one of us to stand up and condemn stupid things and hurtful things when they get said, not just in defence of that free speech. What makes the country stronger and more harmonious is not that people hide behind a law but that people step forward themselves as fair and decent-minded Australians and condemn stupid comments. That is what makes the country stronger, not black-and-white laws in legislation.
Whether or not this piece of legislation is successful today or tomorrow is yet to be seen, but my underlying premise is this. It is not that I think Australians are racist—not at all. I come from the position that I believe that Australians are fair minded, are decent, understand the great merit that multiculturalism has brought to our country and welcome new Australians to our country to start a new life, particularly those who are fleeing from political and religious persecution. The good things and the virtues about our country are the things that make me a free-speech advocate and wholeheartedly support these reforms.
For the record, let me read what the bill will do and what the government is seeking to do:
The Bill will amend Part IIA of the RDA—
the Racial Discrimination Act—
to redefine conduct prohibited by section 18C, to ensure that the defined conduct more accurately encompasses the notion of racial vilification. The words 'offend, insult, humiliate' will be removed from paragraph 18C(1)(a) and replaced by the word harass'. The word 'intimidate' will remain. The Bill will also introduce the 'the reasonable member of the Australian community' as the objective standard by which contravention of section 18C should be judged, rather than by the standard of a hypothetical representative member of a particular group.
The government believes:
The law should provide protection from racial vilification. It should do so in a manner which is consistent with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD). However, this protection needs to be consistent with the right to freedom of speech, which is fundamental to the strength and health of our liberal democracy. Effective protection against racial vilification need not curtail freedom of speech. However section 18C in its current form potentially does so, without providing any extra protection from racial vilification. As well, section 18C fails to protect against racial harassment—an essential element of protection against racial vilification.
I do not expect people to trust Senator Smith from Western Australia, necessarily, nor do I expect them to trust—
Senator Polley interjecting—
I do!
Thank you, Senator Birmingham from South Australia. Thank you, Senator Polley from Tasmania. The people we can trust on this issue are very, very significant people who care about their country as much as senators in this Senate chamber—and I will come to that in a moment. As a triumph of parliamentary democracy, this is a good outcome. If the law changes, it falls on each and every one of us to stand up and condemn ignorant comments. These things are very important.
If we do not want to trust senators in this place, who can we trust? When I was researching this issue back in 2013 and early 2014, I was pleasantly surprised to hear that it was Justice French, the immediately past High Court chief justice of our country, who supported reform. I was surprised to see that it was well-known leftist legal mind Julian Burnside QC who supported reform. As the debate developed in our community, others came to the argument as well, supporting the case for reform. I think what changed in the minds of ordinary Australians were two things. As much as the debate in this chamber and other places was important, two things changed the attitudes of ordinary Australians, took the issue out of the academic and theoretical sphere and brought it into their lived experience. That was the experience of the QUT students in Queensland and the experience of Bill Leak, the cartoonist for The Australian. I hear from lots of people that this is not an important issue—that this is not an issue that people are talking about at their barbecues and their local pubs. I disagree. I do not believe that people are standing at pubs and barbecues talking about 18C. I do think that people are standing at barbecues and pubs talking about protecting their values, protecting their way of life and wanting to stop this political correctness that constantly seeps into everything we do in our country. That is what people talk about at barbecues. That is what people talk about at pubs, and 18C is the technical expression of that issue. So this is important; this is a live issue for Australians.
Let me just share with you what Justice French had to say about this important issue. He said—and it was noted in what was called the Bropho case of the former Human Rights and Equal Opportunity Commission:
The lower registers of the preceding definitions [in 18C] and in particular those of ‘offend’ and ‘insult’ seem a long way removed from the mischief to which Art 4 of—
Covenant on the Elimination of Racial Discrimination—
is directed. They also seem a long way from some of the evils to which Part IIA [of the RDA] is directed as described in the Second Reading Speech
That is Justice French, not then the Chief Justice of the High Court—he later became the Chief Justice of the High Court—arguing that the law needed to be reformed.
Julian Burnside QC, a prominent human rights lawyer, publicly stated:
The mere fact that you insult or offend someone probably should not of itself, give rise to legal liability.
My personal view is that 18C probably reached a bit far so a bit of fine-tuning would probably be okay.
Indeed the Australian Human Rights Commission itself said in 2014 in its submission to the Attorney-General's Department on the original exposure draft of the freedom of speech repeal of section 18C bill of 2014 that it considered that:
… the legislation could be clarified so that it more plainly reflects the way in which it has been interpreted in practice.
In addition to that, Sarah Joseph, Director of the Castan Centre for Human Rights at Monash University goes on to say:
… the prohibitions on that which offends and insults, even on the basis of race, go too far. Feelings of offence and insult are not serious enough to justify restrictions on the human right to freedom of speech ... It is true that the terms, 'offence' and 'insult' have been interpreted so that they mean more than 'mere' offence and insult. It is arguable that judicial interpretation has saved these provisions from actually breaching the right to free speech. However, the law should mean what it says. If 'offence' and 'insult' do not mean what they say, the prohibitions should go.
Everywhere you turn in this debate, I would argue that the case for reform has got stronger and stronger and stronger. It has got stronger amongst indeed those at the highest levels of our legal profession. I would argue that across the community the case for reform has got stronger and stronger. Indeed the case of the QUT students and the cartoonist Bill Leak has added to that strength. I would also note that it is not true to say that opponents of reform are to be found in Australia's ethnic communities—that is not true. What is offensive is this idea that Australia's ethnic communities are homogenous in their view to free speech. I would argue that some of those people who have come to Australia as new Australians understand better than we do the importance of free speech and have probably shown much more courage than we ever will in standing up for free speech, in fighting tyranny in their own countries and now they come to a country with such great democratic values as ours, with such a strong parliamentary democracy.
To suggest that people from ethnic communities do not understand the merit of free speech, I think, is offensive. You have only have to look at the record to find out what they say and you will discover that leaders of ethnic communities, members of ethnic communities, are divided, and why shouldn't they be? We are divided. Communities have different points of view—that is okay–but to argue that ethnic communities are united in their opposition is just not true.
Warren Mundine, prominent Indigenous man in our country, supports reform. Members of the Jewish community in our country support reform. Members of many other ethnic communities support reform. It might be harder to find their opinion, but it does not mean that they do not have an opinion and it does not mean that they have not had the opportunity to put their view on the public record. Again, that is why the parliamentary inquiry process has been so important, because it has given everyone an opportunity to put their view on the public record, and a body of evidence has emerged.
Like I said, I have spoken many times on this bill. I congratulate senators and members of the Parliamentary Joint Committee on Human Rights for the way that they conducted themselves during the inquiry. Whatever happens tonight, whatever happens tomorrow, there is a substantial body of evidence that says that reform is necessary, that reform can be done. I would argue that this has been the right process. I am proud to have been involved thus far, and of course whatever reforms we agree to tonight will be tested—will be tested in the Human Rights Commission, will be tested more broadly in the community—but we can have faith that Australians can live up to the very, very high expectations that we have enjoyed around the issue of free speech in our parliamentary democracy.
I rise to proudly oppose the Human Rights Legislation Amendment Bill 2017, which makes significant changes to the Racial Discrimination Act 1975 and to the Australian Human Rights Commission Act of 1986. I do so on the basis of recent polls, which have informed us that 80 per cent of Australians do not want any change; in fact they want the words to stay as they are. So you would have to ask: why are we pursuing a change that so many Australians are opposed to?
It is that age-old problem that the Turnbull government has had—that is, that they have got an extreme right-wing backbench who rule the day and they are, again, ruling the day. Because the numbers are so tight in the House, they say, 'Jump,' and our current Prime Minister, unfortunately, asks: 'How high?'
There is no doubt that the government originally intended to try to rush this bill through the parliament. There has been inadequate time for reporting the bill. It was introduced to the Senate on Wednesday, 27 March and referred to the Senate Legal and Constitutional Affairs Legislation Committee the next day for inquiry. But the government, through its numbers, shamefully worked to shut down a proper inquiry and instead demanded that the committee report on Tuesday, 28 March. Labor wanted a proper inquiry, not the sham agreed to by the government and some crossbenchers in this place, and we moved a more sensible and reasonable reporting time of 9 May, which would have allowed for proper consultation, but that was knocked off by the government, with the support of some of the crossbench.
No Aboriginal and Torres Strait Islander Australians or representative bodies were invited to appear before the committee, and that is quite shameful. This is despite the availability of the Aboriginal Legal Service (ACT/NSW), who sought to be heard during the hearing. Government members of the committee denied the Aboriginal Legal Service an opportunity to speak. Why? What was the government afraid of? This is yet another disgraceful example of the arrogance and the out-of-touch nature of this Turnbull government.
What is it that the government believe individuals do not have the freedom to express under the current act? They have never, ever been able to answer that question. The government has failed to provide any compelling arguments for either of the two proposed changes to section 18C as outlined in schedule 1 of the bill. Why is it that the Turnbull government wants to legitimise offence, insult and humiliation, all in the name of supposed 'free speech'? The only response we have heard from the Turnbull government is that they believe Australians who look different will not be attacked. The Prime Minister, his ministers and, indeed, the backbenchers—including in the last speech we heard here—try to pretend that all Australians are somehow are bigger than this. What arrogance! What absolute arrogance! It demonstrates just how out of touch and out of step the Prime Minister and indeed all members of the government are if they genuinely think that we do not have racism in this country and that racism is not on the rise.
I saw firsthand the race hate emails that former Senator Nova Peris received. I considered myself to be broad minded. I thought I was beyond being shocked by what people said or did but, when Nova showed me the emails and social media posts that vilified her simply because of the colour of her skin, I was deeply, deeply shocked and very ashamed. The comments were appalling, they were disgraceful and they were uttered by fellow Australians. Sadly there were not just a few of them; there were many. Somehow the writers of this hate speech thought they were entitled to vilify Nova Peris simply because of the colour of her skin.
Let me put on the record in this parliament once again that I stand for free speech, but I do not stand for the right to offend, insult or humiliate. As a white Anglo-Saxon woman, I have never experienced racism, but nonetheless these proposed changes are personal for me. I have two grandchildren. As with most grandparents, they are the apple of my eye. Aidan is 18 years old. Physically he has brown skin and Asian features. Some time ago, I asked Aidan if he had ever been taunted because of his physical features, I was shocked when he answered, 'Yes, and not just once but many, many times.' That is what Aidan told me—'Many, many times,' he said. Then he named the taunts he had received, disgusting terms which I will not dignify by repeating them here in this chamber. They were words which were clearly offensive, insulting and humiliating. I will never understand why we as human beings are fearful of those who look different to the mainstream, who look different to me, and why we think it is okay to use such insulting terms. Aidan was born in Australia but has even been told to 'go back to where you come from'. His father, my son, also born in Australia but with a Polish last name. has been complimented on his 'good command of English', because he has a Polish last name.
My granddaughter, Charlee, has learnt the lesson of racism at a very young age. When she was living in Geraldton, a regional town in the Mid West of Western Australia, she was about 11 years old, and we were out shopping together in Geraldton. We passed a particular shop, and Charlee pointed that shop out to me. She said she had visited that shop with her mum. Charlee is Kija. She said the shopkeeper had followed her and her mother around, watching them, thinking they might steal something. When I asked Charlee why the shopkeeper may have thought that, she responded by saying, 'Because I'm Aboriginal.' It is a shameful that 11-year-old Charlee has learnt that lesson at such a tender age. Charlee has learnt that the colour of her skin somehow makes her different to other people and causes some people to be suspicious of her
Senator Patrick Dodson said in this chamber on 24 November 2016:
There is nothing wrong with freedom, particularly if you are from the ruling class. There is a hell of a lot wrong with freedom if you have to battle to experience it—if you have to fight for it. I was born before the 1967 referendum, when we as Aboriginal people were not even counted in the census of this country, when this government did not have any power to make laws for Aboriginal people because it was excluded by the crafters of our Constitution in 1901. The whole battle for recognition—for freedom to enjoy the basics of being a citizen —in this nation had to be fought for by black and white Australians: Jessie Street, Faith Bandler and many others.
My colleague Senator McCarthy just last week, when taking note of answers, had this to say on 18C amendments in response to answers given by Senator Brandis:
As a white man growing up in Petersham, attending private schools, I am sure you have never been denied access or service in a shop. You have never had taxis drive past, pretending not to see you. You have never received hateful letters and emails because of your race or the colour of your skin. I really wish I could believe there are not any racists in Australia. But certainly my personal experience, and my family’s experience, informs me of the reality that I live in this country.
That has been the experience of my grandchildren, Aidan and Charlee. That is what they have learnt.
On Tuesday, in this place, Senator Brandis made this extraordinary statement in relation to 18C when he said in part:
But the public discussion of section 18C continued, in particular because we continued to see section 18C being used as a vehicle for the persecution of innocent Australians …
Well, I think that my grandchildren, Aidan and Charlee, are innocent and yet they have been vilified, they have been humiliated and they have been insulted because of the colour of their skin. Well, I say to Senator Brandis and others in here who think it is okay to remove those words—who somehow think we are live in this utopia where we all get along and no-one makes insulting remarks to anyone else—walk a day in the shoes of an Aboriginal or Torres Strait Islander person in this country. Walk a day in the shoes of someone from an ethnic community to get a real understanding of the meaning of persecution.
It bothers me that I even have to speak today on such a confected problem. We are debating a bill that has, at its heart, a change that is simply not necessary, as our courts have proven time and time again. The government is proposing to amend section 18C of the Racial Discrimination Act 1975, to allow people to offend, insult and humiliate others on the basis of their race, religion or skin colour, because it thinks the current laws set the bar too low—that boggles the mind. How does this government feel it is appropriate to, in effect, sanction the public humiliation of another person? Instead, it wants to set the bar to what it believes is a more appropriate standard of harassment and intimidation.
In the government's eyes, it is not enough that someone is made to feel like a lesser human and have their dignity and self-worth stripped away by insulting slurs and hateful words and actions—there has to be some higher level of fear and torment. Imagine how that plays out. Imagine being a new migrant, for instance, and being publically humiliated by a person spewing racial or religious hate, who verbally attacks you in front of your young children—children who see you as a hero. The sense of powerlessness and shame this creates would last a lifetime. Imagine the anger that would burn in you when you revisit that moment in your mind. Imagine how unwelcome it would make you feel in your new homeland.
Australia has always prided itself on its multicultural cohesiveness. We are a land built on migration where people of different nationalities, ethnicities and religions have come together to build a modern and peaceful nation. Underpinning this has been, in essence if not always in practice, a respect and tolerance for each other. The very same people who champion free speech and want to change 18C would no doubt also demand that migrants assimilate and take on Australian values. And yet, how can any vilified migrant do this when that vilification only serves to create a sense of exclusion that inhibits them from freely participating in community life? This pointless and mean-spirited attempt to diminish 18C sends the message that a cohesive multicultural nation is no longer important and that the relative harmony we enjoy is not worth protecting. It fails to recognise that free speech is not a hate-filled free-for-all. The message it sends is that it is okay to strip away civility and to insult, offend or humiliate another person without repercussions, and that anyone who thinks otherwise is politically correct or overly sensitive. Frankly, this can only ever be the view of someone who has never experienced vilification based on their race, religion or skin colour, and who is in the convenient position of never having had to seek the protections of 18C.
What has been largely ignored in this debate is that exemptions in section 18D are a very broad and strong defence to claims brought before section 18C. This begs the question, in what ways have the courts, guided by the current laws, failed us? They have repeatedly shown that they do not tolerate vexatious claims. You cannot sue over hurt feelings. So, I ask again: how have the current laws failed us?
In his 2014 PEN essay on the freedom of speech and Australia's Racial Discrimination Act, the Race Discrimination Commissioner wrote:
Any debate should also be based on a sound understanding of how the Racial Discrimination Act in fact operates. There are numerous points of misunderstanding—for instance, the oft-made claims that racial vilification laws criminalise hate speech or involve a form of state censorship. The law as it currently exists involves neither of these things. Moreover, courts have interpreted the law only to apply to those acts that cause profound and serious effects, as distinct from hurt feelings.
The case for changing the Racial Discrimination Act has not been made. There is no compelling evidence that the law has a chilling effect on freedom of expression in Australia. A weakening of racial hate speech laws may have the effect of emboldening a minority of Australians with bigoted views. To those who would champion a right to be a bigot, we should ask: must this supposed right outweigh a right to be free from the effects of bigotry?
The Human Rights Legislation Amendment Bill 2017 also seeks to add the objective test of whether an act is reasonably likely to harass or intimidate a person, or group of persons, as assessed by 'a reasonable member of the Australian community'. It completely ignores that the courts have been applying the law according to a much more sensible objective standard, which is to assess the offending act in light of how reasonable members of the same community would feel, not some blokes down at the pub who might just think, 'Toughen up, mate.'
The Human Rights Law Centre put it so eloquently in their recent submission to the Senate Legal and Constitutional Affairs Legislation Committee, where they said:
It is racial and ethnic minority groups that suffer the impacts of racism, not the Australian community as a whole. We cannot, and should not, expect a reasonable member of the Australian community, who has never had the distressing and degrading experience of being called a 'coon', a 'black—
and I won't say the word because it would be in breach of the standing orders—
a 'terrorist' or being told that 'Hitler should have finished you', to understand the impact of such statements and the fear and sense of exclusion they create.
Both the Law Council of Australia and the Human Rights Law Centre argue that the current test is an adequate one and changing it could have unintended consequences such as reinforcing prejudice, particularly against unpopular racial minorities.
As I have said, the courts have shown that they will not entertain a case that is brought by an overly sensitive person or group. This has been amply demonstrated in the QUT case, where the Federal Court decided the three university students had no case to answer for their flippant comments and Facebook post, and that the Human Rights Commission should never have pursued it. What this highlighted for us, however, is that there are flaws in the system before cases even get to court. This is where we should look to change. My colleagues and I want to see strong reforms to the process because the process has, in effect, become the punishment.
Such reforms will go a very long way in dealing with concerns that have been expressed about 18C. It is important to also note in this debate that section 18C is not a new provision. It was inserted into the Racial Discrimination Act 1975 over 20 years ago, in 1995. This was in response to recommendations from major inquiries, including the national inquiry into racist violence and the Royal Commission into Aboriginal Deaths in Custody. These inquiries found that racial hatred and vilification can cause emotional and psychological harm to their targets and reinforce other forms of discrimination and exclusion. They found that seemingly low-level behaviour can soften the environment for more severe acts of harassment, intimidation or violence by effectively condoning such acts.
Since then, the courts have consistently interpreted sections 18C and 18D as maintaining a balance between freedom of speech and freedom from racial vilification. In various decisions, the courts have held that for conduct to be covered by section 18C, it must involve profound and serious effects not mere slights. The courts have also found that section 18C is an appropriate measure to implement Australia's obligations to prohibit racial hatred under the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights.
As the Law Council of Australia president Fiona McLeod told ABC NewsRadio's breakfast program on 21 March this year:
The cases coming before the court have been decided by some of our most senior officers and they decided that the provisions and protections of the various sections; that's 18B, C and D of the Act read together, provide protections against the most profound and serious effects.
The parliament often responds to judgements of the courts that highlight a particular anomaly, flaw or inconsistency with the law. The native title amendment bill is an example of this process in action.
In the case of 18C, the courts have not criticised the wording or said that they do not strike the right balance between freedom of speech and protection from racial vilification—far from it. When taking calls on this issue, some of my staff told me that members of the public would refer to the QUT case and the late, great Bill Leak as to why section 18C needs to be changed. What these callers are witnessing is a result of a flawed process not a flawed law. These cases should never have progressed as far as they did and we are pleased that this bill at least seeks to ensure that the commission's processes will be improved to ensure they are fair to all parties and their claims that have no merit cannot proceed to the courts.
Fiona McLeod in the same interview with ABC NewsRadio said:
… the Human Rights Commission needs a mechanism so that it is able to deal with these disputes early, and we certainly support the strengthening of those provisions which let it, for example, decide that certain cases do not make the threshold of the current provision and to strike them out.
To sum up our position, my colleagues and I believe a case has been made to change the Australian Human Rights Commission's complaints handling processes, but we cannot in good conscience support any changes to the wordings of section 18C. That is why we are moving an amendment to remove schedule 1 from the bill. As the law currently stands, 18C strikes the right balance between freedom of speech and protection from racial hatred.
I note the government has made further amendments to schedules 1 and 2 of the current bill. As we do not support any changes to section 18C, I can indicate that we will not be supporting the amendments listed on sheet HV208.
The amendments listed on HZ118, according to the supplementary explanatory memorandum, address technical issues in the bill to ensure that the government's policy intention in improving the commission's complaints handling processes can be properly implemented and do not impose a disproportionate regulatory or administrative burden on the commission. These amendments will also ensure that complainants, respondents and the commission itself have a clear understanding of their rights and obligations throughout the complaints handling process. They are a welcome improvement but more work certainly needs to be done.
The Law Council of Australia believes that not all the issues have been addressed, and we remain concerned about two key issues. Firstly, the transitional arrangements outlined in the government's amendment apply to complaints made prior to the commencement of the relevant provisions. This is a change from what was originally proposed. It would have an impact on approximately 2,000 complaints that are currently before the commission and would require an unnecessary diversion of the commission's resources. We support the original transitional and application provisions contained in the bill and urge the government to reconsider its approach.
Finally, item 57 of the bill, relating to costs, should be removed. The court already has a discretion as to costs and can have regard to offers to settle. This amendment is unnecessary and should be removed.
We also have other concerns that are not addressed by this bill or the new amendments. My colleague Senator Xenophon asked Professor Gillian Triggs at the Legal and Constitutional Affairs Legislation Committee inquiry into this bill about any confidentiality requirements when complaints are before the commission. We are concerned that there may be cases where a complaint is made, particularly when it is frivolous or vexatious, and the complainant then publicly names the respondent, or vice versa, which would lead to added and unnecessary distress. Professor Triggs took this question on notice and the commission provided further information, which we appreciated. The commission stated that there is currently no obligation on parties not to disclose the fact that a complaint has been made or the details of the complaint. In general, increased publicity tends to make it more difficult for the parties to achieve a conciliated outcome through the commission's processes. The commission considered that there was a potential benefit in Senator Xenophon's proposal that confidentiality be maintained up until the end of the conciliation stage. This is a proposal that we want to explore in more detail but, unfortunately, time is not something we have a lot of this week.
As I said at the outset, the Nick Xenophon Team has been consistent in calling for reforms to the complaints-handling process. The Senate should not rush this legislation through for the sake of political convenience. We need to make sure we get this right.
Je suis Charlie—I am Charlie. Those words, as we know, resonated around the world on and after 7 January 2015, when two brothers, Said and Cherif Kouachi, burst into the offices of Charlie Hebdo, a satirical magazine based in Paris, and murdered 12 people and shot to injure 11 others simply because they were exercising their right to freedom of speech. Such was the hatred of those two brothers towards satirical cartoonists who were exercising a right that has long been established in France and elsewhere that it led to those cartoonists being murdered or injured. Indeed, our own President Parry represented the parliament and the people of Australia at the memorial service that occurred in Paris soon after that event. The world was outraged. Everybody went around with T-shirts with those words 'Je suis Charlie'—I am Charlie. Yet, all too quickly, many people who confected that particular view have had cause to change it in relation to the debate that is in front of us at the moment.
Go back into history, because if we ignore or forget the lessons of history we are bound to repeat them. I do not know if it was the French historian and philosopher Voltaire, who lived between 1694 and 1778, who wrote these words, which we all know, but let's give him the credit for them: 'I disapprove of what you say, but I will defend to the death your right to say it.' We can go forward to the first President of the United States of America, George Washington, and I quote his comment:
… the freedom of Speech may be taken away—and, dumb & silent we may be led, like sheep, to the Slaughter.
Come forward to the present day and let's examine some of the comments of people in the current sphere on their view on 18C and whether it needs amendment. Mr David Marr, a person not given to the right of politics, has spoken on this matter. I will quote three of his statements. In the first he says:
… in a free and energetic society, giving offence is necessary.
Elsewhere he has said:
Offence and insults are the everyday reality of free discourse.
That resonates with Voltaire and Washington. In the third of his quotes that I will refer to he says:
Hurt feelings should never attract the law as they do now under section 18C.
I will now go to comments of Professor James Spigelman, a former Chief Justice of the Supreme Court of New South Wales and, until recently, chairman of the Australian Broadcasting Corporation. He has said:
I am not aware of any international human rights instrument, or national anti-discrimination statute in another liberal democracy, that extends to conduct which is merely offensive.
Those are the words of the ex-Chief Justice of the Supreme Court of New South Wales. In the same debate he also said:
The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.
I go now to the comments of former senator Joe Bullock, whose only offence was to say to his then leader, Mr Shorten, 'If you want to continue to support same-sex marriage, then, unfortunately, I will have to pack my bags.' I still feel very angry about that fact today. This is what Senator Bullock said in a speech in this place:
To be tolerant of your views I do not need to pretend that you are just as right as I am but rather to accept that you have a perfect right to hold a view I believe to be wrong, even if I find your view offensive.
Those are the words of then Senator Joe Bullock.
I go, if I may, to Father Frank Brennan. Again, a Jesuit priest would normally be regarded as one of a different political persuasion to that of my own and, of course, he is the son of a past Chief Justice of the High Court of Australia. He said this on 13 March this year. You cannot be much more current than that. He said:
I have since been convinced that a provision like 18C could be designed to target racial vilification, leaving offensive insults beyond the reach of the law in a robust democracy committed to freedom of speech.
The last I wish to quote from—again, they are not a person you would think is normally on our side of the political divide—is the lawyer Julian Burnside QC. We know him to be an asylum seeker advocate and lawyer. He said that people should not be prosecuted for offending a group of people on racial grounds. He made the observation that existing racial discrimination laws go too far by making it an offence to upset people. That is according to Julian Burnside. He said:
The mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability.
And:
My personal view is that 18C probably reached a bit far so a bit of fine-tuning would probably be OK.
Other people who have spoken in this space are none other than Human Rights Commissioner, Professor Gillian Triggs, who has recommended that major changes be undertaken, and indeed the Law Reform Commission.
I want to draw the attention of the chamber and those who might be listening to some definitions because they are critically important to the dialogue associated with this debate. The definition of 'intimidate' is to frighten, to threaten or to severely overawe. That of 'harass' is to torment, to persistently and continually disturb and annoy. One could not have anything but sympathy for the comments of others in this place drawing attention to the unacceptable behaviours of people towards others. I refer to Senator Lines' comments particularly. But I put to you that what Senator Lines was referring to were acts associated with attempts to intimidate or harass, and the strength of this proposed legislation is the introduction of 'harass' for the first time. It should always have been there—to torment or persistently disturb or annoy. What is the absolutely essential element of those two in contrast to the other three words? It is this: they are aimed to stop a person going about their normal business. If you think back to the comments that we heard, particularly from my colleague Senator Lines, you can see that those sorts of references and others, which should remain, are there to stop a person going about their normal business. Let me, if I may, contrast those with definitions of the others. 'Offend': to displease or to cause anger. 'Insult': be offensive and indicate to somebody their worthlessness. 'Humiliate': to suggest an indignity to a person; to interfere with their self-respect or to embarrass them. In contrast to the first two, which interfere with the normal activities of a person going about their business, I put to the chamber that the other three relate to hurt feelings. I have no doubt at all that is quite possible.
I have made the comment at different times—and it was levelled at me as a kid—that I am the grandson of bog Irish peasant farmers, and I am. The interesting thing is: in the mind of the person levelling that allegation, do they have any idea as to whether I felt humiliated, insulted or offended? How can they know what my response would be to the fact that both my maternal grandfather and my maternal grandmother came from, respectively, Galway and Tipperary? Mr Acting Deputy President Bernardi, you would know that, far from being offended, insulted or humiliated, I am absolutely overjoyed. I and members of my family, when we went to the north-eastern wheat belt area of Yelbeni recently, placed a plaque on a piece of granite, recognising the centenary of my grandfather taking up that land. He was the first farmer in that district. My extended family and I recounted all of the areas where their many grandchildren and now great-grandchildren have found themselves in professions around the world, around Australia and around Western Australia, contributing to the wellbeing of this place. Yet the words of that person, in calling me the grandson of a bog Irish peasant farmer, may well have been offensive, insulting or humiliating, but in no way did it stop me going about my daily business.
I want to make brief reference to one other term that is used in this place. There has been great argument from others regarding Senator Brandis, the Leader of the Government in the Senate, the Attorney-General, in relation to the term 'bigot'. I will place on the record what the definition of 'bigot' is. It is a person who is utterly intolerant of any differing creed, belief or opinion or prejudice. All 75 of us spend plenty of time in this place and I would venture the opinion that all of us, or certainly most of us, could have reasonably levelled at us the fact that we have been utterly intolerant of the view of another or their opinion or their belief. We see it in question time every single day. That is what a bigot is, and it should be recorded to be so.
Reference has been made to the events relating to the Queensland University of Technology students. I do not intend to prosecute that much further, except to say, as my colleague Senator Griff said, it was eventually sorted out in the courts. You yourself, when you were contributing to this debate, Acting Deputy President Bernardi, from your experience involved in the court process—and there are some in this place who have had it—know that it is very much more complex, time-consuming, emotional, draining and costly than just saying, 'It was sorted out in the courts.' In fact, I saw the comment of one journalist, 'Nothing to report here.' There was plenty to report here all right, and it was a scandalous example of an abrogation of responsibility by the Human Rights Commission and its president. Indeed, thank the Lord that competent pro bono legal advice was given to some of those students.
I refer to Mr Bill Leak's cartoon. I want to comment not so much of the content of the cartoon but on the wonderful commentary given by a past national president of the Australian Labor Party, Mr Warren Mundine, himself an Aboriginal man. Mundine made the point very strongly that those who condemned Bill Leak should themselves be the ones condemned, because, as Mundine eloquently pointed out in the media, Leak was simply trying to point out what those of us who have some association with different communities, including remote communities, around this country know to be the case and deal with on a daily basis. We see the prosecution of Mr Andrew Bolt. Julian Burnside QC made the point that the plaintiffs could well have brought a libel charge against Bolt, but, no, it was worked out through 18C.
Senator Griff has pointed out his support, and that of his colleagues, for the reform to the complaints-handling process of the Human Rights Commission. I do not want to spend much more of the chamber's time, except to say that it is the case—I agree with Senator Griff—that it is an abuse of process. It is a sad dereliction in the current precepts and handling processes of the commission that either the Queensland University of Technology case or that of Mr Bill Leak were ever prosecuted to the extent they were and for the time they were. We had the regrettable circumstance of two members of the Aboriginal Legal Service of Western Australia going to Fitzroy Crossing, having a chat with a couple of Aboriginal gentlemen, putting to them the fact that this was offensive and getting them to make a formal complaint. Only afterwards, once they realised what it was they had been asked to involve themselves in, did they reverse their decision. In this place I have challenged the Aboriginal Legal Service of Western Australia to explain the actions of those two people and to defend them. Unless I am mistaken, to this moment there has been no attempt to defend or to explain what one may reasonably call entrapment.
I conclude simply with the observation that in a robust economy, in a robust democracy, in the place where robust thoughts are argued out, it is perfectly reasonable for this to take place. I conclude simply, in my poor French, with the words, 'Je suis Bill Leak.'
What cannot be said because of 18C? It is a question repeated ad nauseam by Labor, the Greens and the journalists who barrack for them. Today I will say some things that violate 18C and that may get no protection from 18D. I am happy to repeat them outside of parliament so that we can find out. 18C is being defended by self-appointed representatives of Armenian, Hellenic, Indian, Chinese, Vietnamese, Japanese, Jewish, Lebanese Muslim and Arab groups. These largely self-appointed representatives do not subscribe to Australian values. They are encouraging the groups they purport to represent to reject the path of integration and assimilation that has served so many migrants well in the past. They are encouraging the groups they purport to represent to favour and promote the repressive policies of the places they came from.
We have self-appointed representatives of Islam, who actually represent the Salafist Islamism prevalent in Saudi Arabia, wanting to suppress any counter to the suggestion that Islam is the most feminist religion in the world. We have representatives of Chinese Australians, or at least of those Chinese Australians who swell with pride about Chinese authoritarianism, wanting to suppress anti-Chinese sentiment. We have representatives of Japanese Australians wanting to suppress all reminders of comfort women. We have representatives of Turkish Australians wanting to suppress claims of Turkish genocide, and representatives of Armenian Australians wanting to suppress the Turkish responses to their claims of genocide. We have self-appointed representatives of Jewish Australians wanting to suppress Holocaust denialism.
Labor and the Greens are doing the bidding of these self-appointed representatives in the hope of votes from the various immigrant groups, and in the process they are selling out Western values. We need to be very clear with the self-appointed representatives of immigrant groups. Australia maintains the Western Judeo-Christian civilisation, the finest civilisation of all time. We hold dear the values and institutions fostered originally in Britain and so successfully transplanted here over the past 200 years. We subscribe to equality before the law, so we are all bound by these values and institutions, whether we are descendants of those who came here tens of thousands of years ago, or we just landed here. We will prevent and punish crime, and report on it in our free press, even when the crime is disproportionately carried out by recent Sudanese migrants, second generation Lebanese Muslims, or Aborigines. We will remove your children from you if you neglect them or abuse them, even if that neglect and abuse is a consequence of your Aboriginal ancestors being dispossessed centuries ago, and subsequent mistreatment of you and your ancestors.
We believe in equality of the sexes, so you are not free to mutilate your daughter's genitals, arrange her marriage in her childhood, have sex with your wife irrespective of her willingness, or get automatic custody of your children if your marriage collapses. We believe in freedom from arbitrary arrest, an independent judiciary and the right to a fair trial, and we oppose the death penalty. That is why we will not ratify an extradition treaty with Communist China, or any other backward, repressive regime. We are a meritocracy and we hold our government to account for its use of taxpayers' funds—which is why newspaper articles should be free to mock affirmative action policies for pale-skinned Australians with some Aboriginal heritage, without those articles being deemed unlawful.
What I have just said would have offended certain people on the basis of their race, colour or national or ethnic origin, so what I have just said would violate 18C. In answer to the question often posed by Labor and the Greens, these are the things that cannot be said because of 18C, except if you enjoy parliamentary privilege or are willing to pay a court-ordered penalty. What I have said may also have 'harassed' certain people, particularly if I mentioned the names of the self-appointed representatives I was referring to. Indeed, such comments may well be thought of as 'harassment' by the 'ordinary reasonable person'—so what I have said could still violate 18C even if we use the word 'harass', and even if we adopt an 'ordinary reasonable person' test, as the government's bill proposes. Finally, a court might not consider my comments to be reasonable or made in good faith, in which case I would get no protection from 18D.
The government's bill is an improvement on the status quo, and I support it. But if you support Western civilisation, the best civilisation we have ever had, 18C must go.
I rise to speak on the Human Rights Legislation Amendment Bill, because this is an important issue. I made some comments in my maiden speech in this place on what are those things about democracy that are worth defending. It is not so much the benefits; it is about those principles, those things, that underpin a plural liberal secular democracy. Freedom of speech and thought, freedom of association and all those things are part of it, and that is why this is important.
This debate is problematic. The examples that are often given by those who wish to keep 18C as it is often go to the personal interactions between people. There have been not only in the chamber here but also in committee hearings some very distressing stories told about the personal interactions between people when people have been harassed or intimidated on the basis of their race. There is no-one in this place who would find that acceptable. I think it is fair to say, and let me be clear, nobody wants to see someone harassed on the basis of the colour of their skin. But nor should anyone here want to see a cartoonist harassed by a government authority for expressing a view.
The difference between those two cases is that on one hand you have a fairly clear, directed, personal attack on somebody that is intimidating or harassing, bearing in mind the definition of 'harassment' in this bill means that it can be a one-off event and it is not the circular argument that some people have pointed to with other definitions of 'harassment'. So the government is actually strengthening the provision against that individual case. As I said, to be clear, nobody supports that sort of harassment. The problem with the other case, the more general public statement, is that there is no clear threshold, no predictor that somebody can use, as to what that threshold of offence is. It is instructional when we look at this broader type of statement to look at the Bill Leak case because it is a fantastic exemplar of this in action.
Submissions to the inquiry on 18C and how it should be interpreted have said, 'Look you cannot have the reasonable person test because you have not walked in that person's shoes, you do not understand what they have gone through.' That is a fair argument from one perspective, but in this case we saw some people—Senator Back just referred to this—from the Aboriginal Legal Service going out and encouraging people, saying, 'Don't you find that offensive; we should take some action over this.' So that is one threshold where people have taken offence. But then you have people like Mr Mundine, who wrote a very good article in the press which highlighted his background, highlighted the fact that he was one of the Indigenous population group and his background was not a privileged one. He had experienced all kinds of actions, and yet he, as a member of that people group, made the very clear statement that some people see racism where there is none—referring to Bill Leak's cartoon. That identifies a very clear difference between that personal, one-on-one incident of harassment and intimidation and a case where somebody is expressing a view, and there is no clear threshold at the moment, no predictor of the threshold, for me to understand or for Bill Leak to have understood, 'Am I going to get the Aboriginal Legal Service's response or am I going to get Warren Mundine's response?'
That is not an acceptable place for our society to be in, because it means that the intent, the purpose, of an expression is judged lawful or unlawful on the unquantifiable response of even one other individual who may choose to say, 'I take offence at that.' We saw that in the case of the QUT students. We see it often where difficult subjects come up—subjects that people feel personally. They may well have had experiences in their past that are painful and disturbing. They will choose to respond in certain ways.
But, if one of the fundamental parts of our democracy is that people can speak about difficult topics, we need to allow for the fact that not everybody will have the training of a lawyer and not everyone will have the opportunity to research case history before exercising that right. In fact, Justice Kirby in his judgement in the decision of the High Court in 2004 in Coleman v Power said:
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 to the obsessive, the emotional and the inarticulate as it does the logical, the cerebral and the restrained.
Those are not my words. That is Justice Kirby. It highlights the fact that, when people enter into this debate around ideas, they may not have the background to understand all the jurisprudence around what has or has not been accepted in the past for 18C—the high legal standard that we are constantly told is applied for 18C.
Part of the problem—as we saw for the QUT case, for Mr Leak, for names that are undisclosed but the reports from the Human Rights Commission identify, and for many hundreds of other people, who have ended up paying in the order of hundreds of thousands, nearly a million, dollars in these processes—is the process. When somebody says, 'I'm offended,' and goes to the Human Rights Commission, the process itself is debilitating and punishing even if things do not get to the court. So we need to look at how we word this piece of legislation that protects the individuals in all those cases we have heard. The government are strengthening this so that we do protect people from that harassment, or that intimidation, but we provide a platform, an ability, for people who want to contribute to the public debate in good faith and not be hauled up before a state authority because one person or a group of people, in the words of Warren Mundine, see racism where it is not.
It is important that we resolve this now, because, as we have seen in the media just in the last week, there have already been discussions by the opposition about how this potentially should apply not just to the Racial Discrimination Act; this 18C construct should apply more broadly, whether it be in religion, sexuality or other areas. When we look at the reluctance of sections of our community now, in the absence of any law, to be tolerant of views that differ from their own, I shudder to think of the consequences if this were wrapped up in a law and a process that is similar to section 18C of the Racial Discrimination Act.
Let us take another very current example, the debate on a Bible Society video where people were drinking a Coopers beer. I have watched that. I know both of the gentleman concerned. The debate was civil. It was informed. You could even say it was innocuous, except that in the current climate it was challenging. It was challenging because, despite the rhetoric of the progressive left that anyone who does not agree with their view is a hateful bigot, it demonstrated that people of good character and goodwill can have differing points of view and discuss it in a civil way. It said that both of those people have worth. Their views have a place in our society. Our society, if it is to function as a plural, liberal, secular democracy, must allow people to discuss and debate ideas in that format.
But what happened? We saw outrage on social media. We saw people boycotting the products of Coopers, who were by and large the innocent party in this whole affair. Damage was done to people, in this case a company, by people who were intolerant of ideas that differed from theirs. So if we already see, under section 18C of the Racial Discrimination Act, people seeing racism where there is none, and in cases like this we see people seeing bigotry and hatred where there is demonstrably none, then I shudder to think of adding the weight of law to that.
Likewise the case of Mark Allaby, an employee of IBM, who was singled out by activists who questioned why he should be allowed to work for a firm that was an avowed supporter of diversity, equity and marriage equality—and that is fine; they are quite entitled to do that if they wish. This person was singled out on the basis of his association with a group that was looking to raise up and train articulate contributors to our society. If you look at the Lachlan Macquarie Institute and you look at what they are about, they are about training people to participate in an articulate and informed way in the debates of our society and in our culture, not to dominate it, not to impose their views on others, but to contribute to see where their world view has a place.
If you look at the people who are on the board of that institute, you do not see people who you would characterise in any negative terms. There are people there who for a number of years have been committed to relieving global poverty, who are involved in microfinancing initiatives for people in developing countries. We see people who are concerned about housing availability for those least able to obtain housing in our community. We see people who are committed to preventing modern slavery and the trafficking of people. We see people who have served their country in the Defence Force for over 30 years. These are quality people, who have contributed to our society, to the poor, to the global good, yet from the way they are labelled by the Left you would assume that they are the worst of the worst people and wonder why would IBM want one of them on its board. In fact, the person who started that diatribe against him, which I understand has resulted in Mr Allaby having to stand down from the board of the Lachlan Macquarie Institute, said that this is not about freedom of religion—he can have his belief; he can go to church. But if you look at article 23 of the International Covenant on Civil and Political Rights, you will see the non-derogable writer that person is not only to have his belief or his faith or his conscientious thought but, unless there is a competing right, which in this case there is not, he is also free to express it, to manifest it, to teach it. Article 22 guarantees the freedom of association, so Mr Allaby is quite free, and we should be backing him to the hilt, about his freedom of association, particularly with a group where other board members have such high standards and records of ethical contribution to our society and to the population of the world more broadly.
I think it is important that we come to the statement that was issued just recently about our shared values on multiculturalism. This is something issued by the government, but the opposition has lent its support and said that it is a positive document. Under the heading 'Freedom' it says:
We support freedom of thought, speech, religion, enterprise, and association.
Those detractors of Mr Allaby should realise that he has a right to have his faith, to associate with a group that is a positive group developing people's character and ability to contribute to our society. That right should never be undermined. We need national leadership from this parliament and, I would argue, even in the business place to support people like him. Rather than remaining silent, I would like to see the CEOs of those companies out supporting these fundamental rights. They write letters on other topics; you can argue whether or not they should be, but they do, and they have a right to do that.
IBM's equity and diversity statement says:
A key element in our workforce diversity programs is IBM’s long-standing commitment to equal opportunity.
Business activities such as hiring, promotion and compensation of employees are conducted without regard to gender, race, religion, gender identity or expression, sexual orientation, national origin, genetics, disability, or age.
It goes on to say:
IBMers around the world work in an environment where diversity—including diversity of thought—is the norm and innovation can flourish.
What the activists are demanding, and what it appears IBM have acquiesced to, is to say, 'No, we will have a workplace with no diversity of thought. We will not allow people to have any opinion on this topic'—and perhaps other topics—'that deviates from the norm that the company has established.' That is not diversity. If they want diversity and the innovation that they say will flourish through diversity they actually need to live that out. All corporates do. All members of this place should recognise that diversity is important. I have stood here before and put forward my view on contentious topics in a polite, respectful way, with no hatred, but I have been called a hater and a bigot in this place. That to my mind says that people do not actually understand what diversity and equality mean. They do not understand the very nature of a liberal, plural, secular democracy, where people should be free to do what our new statement on multiculturalism says:
We support freedom of thought, speech, religion, enterprise, and association.
So to my mind, national leadership on this is required, and the government is seeking to do that through these reforms. The reforms provide that leadership in terms of the wording of amended section 18C to strengthen the case that are talked about at the start, where individuals are harassed or intimidated one on one. We are strengthening that, because currently there is no protection for harassment. When this all started back in 1995, that was the recommendation, that section 18C of the Racial Discrimination Act should prevent harassment. So the government is strengthening this provision by putting that in. But we are also strengthening the freedom of thought and speech in this nation, particularly of those areas where people are expressing a view, and we are recognising the fact that even within a subpopulation group you will get the diversity of people like the Aboriginal legal service of WA and Mr Warren Mundine. Who in this place is to judge which of those two is right? If Mr Mundine says others see racism where there is none but he sees none, why should we say he is wrong? Without that predictable threshold, we need to change that wording.
For a similar reason, we also need to change the basis upon which the judgement is made. That is why the government is looking at 'the reasonable person', which is common across pretty much all of our other statutes, in that we look at what a reasonable member of the Australian population would think. That is why juries are chosen at random to be brought in, so we have a cross-section of ordinary Australians who come in to apply their judgement to a certain conduct and evidence that goes before them.
Lastly, because the process itself has often been the punishment for people, this legislation also looks at changing the process of making complaints at the Human Rights Commission. This is an important issue, because we need to protect the individuals. As I said at the outset, let me be clear: nobody in this place should—or, I would argue, does—support that kind of harassment or intimidation of an individual. But likewise nobody in this place, the centre of Australia's democracy, should support situations where we cannot discuss freely and put forward views in society without a government-funded authority being used as a threat to shut down that discussion. This government is taking national leadership in this space. I would encourage corporates and other people to take leadership to support those people within their workplace to have true diversity, freedom of speech and association.
I really cannot believe we are here in 2017 debating again the issue of watering down protections against race hate speech in this country. But, yes, here we are again, thanks to a certain group within the Liberal Party who are absolutely obsessed with trying to water down the protections that we currently have provided in section 18C of the Racial Discrimination Act. There was a reprieve some years ago, and we thought that the government had seen the error of its ways. It dumped changes that it wanted to make at that time which were basically very similar to what we have before us now—changes to water down those protections against race hate speech. But unfortunately they have raised their ugly heads again. A certain group within the Liberal Party has lobbied the Prime Minister hard to make him backflip and bring this legislation on. So unfortunately we are back here again. And look at the day that they chose to do it. It was actually on Harmony Day, the day that we celebrate that everyone belongs. That is the day that the government chose to announce that it would be bringing forward legislation to water down the very essence that ensures that everyone belongs, the underpinning of everyone belonging, and that is the race hate laws in Australia. What an absolute disgrace.
Who would have thought it? If you had been asked which one, out of Tony Abbott and Malcolm Turnbull, would bring forward legislation to water down these laws, you would have thought that perhaps Tony Abbott would have been the one to do it. You would never have thought that Prime Minister Malcolm Turnbull would be doing such a thing—someone whom people once referred to as a small 'l' liberal, not one of the cabal to bring these laws on. And that is what it is: a particular group within the Liberal Party who are absolutely obsessed with this issue. They do not care for the fact that out there in the street no-one is talking about this. No-one is coming up to me—or to any member of this Senate, I do not think—and saying, 'When are you going to water down race hate laws in this country? When are you going to do something about section 18C?' That is not what people are talking about on the street.
What people on the street are asking is, 'When are we going to have, legislated in the Australian parliament, marriage equality?' That is what people are asking. People are asking, 'When is the government going to act on climate change? When is the government going to address underemployment in this country and inequality in this country?' These are the issues that people on the street are actually talking about. If those Liberals who are obsessed with this issue would get out of this bubble in Canberra and actually talk to some real people about what their issues and concerns are, they would soon realise that nowhere on that list is 'Let's reform and water down section 18C of the Racial Discrimination Act'. And yet here we are. I look forward to the crossbench supporting Labor to stop this government obsession with allowing bigots to have that right to be bigots—because that is what this is about.
An interesting poll came out this week—a Fairfax Ipsos poll—which showed very clearly, from about 1,400 voters, that 78 per cent of Australians believe it should be unlawful to offend, insult or humiliate someone on the basis of their race or ethnicity. Seventy-six per cent of respondents who intend to vote for the coalition in fact said they support retaining the words 'offend, insult, humiliate'. So, even if you do not want to listen to the average person on the street, what about listening to some of your own supporters who do not want this law changed? Deputy Prime Minister Barnaby Joyce himself made it clear that this does not resonate as an issue with mainstream voters. It is not passing the pub test, as one would say.
So why are we here? It was 2014 that we were debating this last time, under an Abbott prime ministership. It is 2017, and we are back doing it again. It is like we are in some kind of groundhog day on the issue. Just as Labor won the fight to protect Australia's laws against racial discrimination in 2014, we will do it again. We still do not have an answer, though, to the question that the Prime Minister refuses to answer, and that is: what does he want people to be able to say that they cannot say now? What is it that those Liberals who want this law changed so desperately want to say that they cannot say now under the current law? One thing we know very clearly about this law is that it is not just about people's feelings getting hurt. The bar is higher than that, and the government knows that. It knows it very clearly. Therefore, what is it that they really want to say to people of different race that they cannot currently say? The court has interpreted section 18C so that it only applies to 'profound and serious effects, not to be likened to mere slights'. There is the bar. The bar is there. So why does the government want to repeal those three words and water them down, replacing them with one word, 'harass'? It does not make sense.
I say to this government: haven't Aboriginal people in this country gone through enough already; do you really need to do this? Haven't ethnic groups and new migrants all done enough to try and fit in to this country, to the Australian way of life; do they really deserve this? These are the people that you are attacking by bringing this ridiculous piece of legislation back into this place. This is a complete failure of Malcolm Turnbull's leadership, as if we did not have other examples of that failure already. Even Tony Abbott—even Tony Abbott—stood up to the IPA faction of the Liberal Party and dropped his idea to change the law, back in 2014.
I hope that the government learns from this. I hope that, after the votes are cast in this place tonight, the government learns from this and drops its ridiculous obsession with wanting to give the green light to racists, bigots and anyone else who feels that the current laws do not give them enough freedom to say whatever it is that they want to say. And I ask them: what is that? What is it that you feel so constrained about, living in Australia, that you cannot say to people of different races? What is it?
The law as it stands works fine. The polls that have been conducted say that the public think that the law works fine. No-one on the street is talking about having these laws changed. This is just a ridiculous waste of the Senate's time, and it shows that the government is completely out of touch with Australian values, with the Australian idea of what it means to live in a multicultural country and with what is important to Australians. The sooner the government wakes up and realises that, the better. The sooner this government is voted out of office—even better.
This debate is not happening in a vacuum. It is not something confined to the chambers of this parliament, inside the Beltway and Parliament House. It is happening in an environment in Australia where racist hate-speak is on the rise, and where people of colour, of diverse multicultural backgrounds cannot walk down the street without feeling threatened. It is happening in an environment where there has been an increase in people being insulted, humiliated, offended, harassed and intimidated—all of those things.
I want to share with you a meeting that I had last Sunday. It was with a Muslim women's group who were having a morning tea to bring their community together. The name of their event and their theme for the morning was 'Working towards unity in today's hostile political climate', because they recognise what has changed for them as Muslim Australians over the last couple of years. They told me some horrific stories. They mostly wanted to celebrate their diversity. They mostly wanted to come together and focus on the positives, and a positive way forward. But it was inevitable that they shared what had been happening to them, their experiences—being yelled at on the streets, or abused on public transport, just for being identifiably Muslim; women wearing hijabs being told, 'Go back to where you came from,' and being vilified just because of who they are. They told me of a woman wearing a niqab, which is the face covering that shows only the eyes, driving a car with the window wound down, and having a cup of hot coffee thrown at her, scalding her face. They told me of another woman, also a niqabi, walking down the street with her two-year-old in a pram and having the pram kicked over. They told me of their young children coming home and saying, 'Why do people always say bad things about Muslims? Why can't they say good things about us? We are good people, aren't we?' And they are good people.
This is the climate in which this debate is occurring, and any weakening of our Racial Discrimination Act is going to give the green light—it is already giving the green light—to the unleashing of more racism. This weakening that is going on has consequences, and there is no doubt that replacing 'offend', 'insult' and 'humiliate' in the Racial Discrimination Act with 'harassing or intimidating' is giving people licence to say more.
Even if the legislation, once it finally goes to court hearings, does not change the situation on the street, it is giving people that sense, 'We can now be more racist than we felt we could be before.' It is encouraging those racist attitudes. It is encouraging that sense of difference. It is encouraging people to feel that difference and to feel that it is okay to offend people. The argument being put by the government is that not being able to 'offend', 'insult' or 'humiliate' is an attack on free speech. Simply put, it is not.
The argument that is being put up that this is an attack on free speech—that people should be able to offend and insult and humiliate and just not be able to harass or intimidate—is a complete straw man. I think almost everybody in this chamber would have agreed with the arguments put by Senator Fawcett before in defence of free speech, but free speech is not under attack with the current wording of the Racial Discrimination Act. Senator Leyonhjelm said that what he said would have violated section 18C, and he was going to go outside and say it and see whether it would have got through.
Firstly, under the existing provisions of 18C, it is not just somebody taking offence that would enable a successful case. Justice Kiefel, who is now the Chief Justice of the High Court, in the Cairns Post case said that in order to be successful those words had to have 'profound and serious effects, not to be likened to mere slights'. So it is not just, 'Oh, I'm offended,' and therefore people cannot say that, because they are going to be prosecuted in a court case. No, it has to be something that is causing 'profound and serious effects, not to be likened to mere slights'.
The other thing that we never hear from the government is the provisions of section 18D. Sections 18C and 18D operate together. So, for example, everything that Senator Leyonhjelm said in his contribution earlier on absolutely would have been covered by the provisions of 18D. I want to read out the provisions of 18D in their entirety because I think people need to be reminded that we have 18C that says we are not allowed to 'offend', 'insult' or 'humiliate', but 18D says:
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest—
Senator Leyonhjelm—
or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
Clearly, 18D covers off any reasonable expression. It is not just a case of offending somebody and then being hauled up before the courts.
The case that is being used as a cause celebre is that of Bill Leak. It is absolutely clear that the 18D defence would have cleared Bill Leak of any prosecution. It was 'the performance, exhibition or distribution of an artistic work', first of all. It was making a fair comment in a matter of public interest. Section 18D, a hundred times over, would have let Bill Leak off. It would not have been a case that would have held up. In fact, we have been told that Gillian Triggs, of the Human Rights Commission, has said that they wanted an 18D defence to be put forward as a defence because that would have meant, very clearly, that the whole case would have been able to be very quickly dismissed.
Finally, in having this debate tonight, I really urge the government and I really urge the crossbench to be thinking about the impacts that this debate is having on people who are just trying to live their lives in a dignified way, free of harassment. I ask people to be listening to the voices of multicultural Australia, listening to the Aboriginal and Torres Strait Islander people and listening to the peak bodies representing our diverse Australian community. As a parliament we do not need to capitulate to the far right of the government backbench. We have a Prime Minister who has capitulated to his far right, but we as a parliament do not need to do that.
We need to be listening to our diverse society. We need to be hearing what they are saying, hearing about the racist attacks that are on the rise in Australia. We need to be doing everything we can to put them to bed and to say that we want to celebrate multicultural Australia. We want to be reducing racism. We want people to be able to live their lives free of insults, offence, humiliation and harassment, to be able to get on with their lives, to feel valued and to feel at one as part of the Australian community. These proposed changes to the Racial Discrimination Act are the exact opposite of what we need to be doing. We need to be encouraging our diversity, not attacking it.
I rise to speak on the Human Rights Legislation Amendment Bill 2017. The bill seeks to change the wording of section 18C of the Racial Discrimination Act 1975 by removing the words 'offend', insult' and 'humiliate' and replacing them with 'harass'. Let me be clear that the changes in this bill will weaken protection for Australians against racial hate speech. We will not support this or any other change to 18C. Labor's position is rock solid.
We also have issues with a number of changes this bill will make to the complaints-handling process of the Australian Human Rights Commission. These have been poorly drafted and rushed through without adequate consultation. I note that we are open to changes to the complaints-handling processes of the Human Rights Commission, but we cannot and will not support the changes in this bill as they stand.
Earlier this week, Senator Brandis again referred to the Turnbull government's changes as a 'strengthening' of 18C. I know I am not the only one scratching my head, wondering how on earth the law will be strengthened by removing 'insult', 'offend' and 'humiliate' from section 18C of the Racial Discrimination Act. Our Prime Minister says, 'This is the language that will do the job,' because, apparently, 'offend', 'insult' and 'humiliate' do not do the job.
This out-of-touch government also claims that these changes will allow more freedom of speech. Let me make one thing clear: there is no freedom of speech crisis here in Australia—none whatsoever. What I really want to know is what the Prime Minister wants people to be able to say that they cannot now under the current law. It is a very simple question but not one that has yet been answered. No matter which way you look at the government's changes, they guarantee there will be more racist hate speech in Australia than there is now. After all, how can it be about freedom of speech unless it is going to allow more things to be said?
I want to turn my attention to the Senate inquiry. I actually was not part of that inquiry, but, if the government were really trying to strengthen the act, Aboriginal Legal Service would not have been barred from the Senate inquiry into the proposed changes last Friday. The exclusion of the Aboriginal Legal Service from Friday's hearings into the proposed changes to section 18C was disgusting and speaks volumes about this government. The government have exposed themselves as complete and utter hypocrites on the subject of free speech. Instead of standing with multicultural Australia, they have sided with bigots.
The proposal to weaken section 18C has been rejected nationally and by our multicultural communities. Replacing the words 'offend' and 'insult' with 'harass' is not harmless change. On Sky News on Tuesday night Andrew Bolt stated that a person would have to be insulted on the basis of their race five times before they would fall under the government's definition of 'harassment'. Does the Prime Minister agree with Mr Bolt's definition of harassment under the proposed changes to section 18C? If he does not, what is his own definition? The wordsmith on the other side of this place, Senator Brandis, has said that 'harass' means 'to bother'. How is this not weakening of the laws?
This may not be a real issue for those opposite, but it is a very real issue for international students who are being heckled and abused on their way home, the woman on the train or the bus being racially abused as she rides home from work or the taxi driver who was racially abused from the back seat by his passenger because of the colour of his skin. It is easy for those on the opposite side to belittle a protection they never need. It is easy to dismiss a hurt they have never felt.
I personally was very fortunate in my upbringing in Tasmania because I never experienced racism at all. My father survived 3½ years as a prisoner of the Japanese in the Second World War. He survived the Burma Railway and Changi, and he taught us children to be tolerant. He in no way had any racist undertones toward anyone. That is how I was brought up. Unfortunately, when I got married—my husband was born in Germany—our children, who are white, everyday kids experienced firsthand the racist comments in relation to their heritage and their father's heritage. To go to school and be told 'Your father murders people,' 'Your father kills people,' 'Why does he do that?' 'Because he's a Nazi,' is something we should not tolerate in this country. We should not tolerate it now and we certainly should not be weakening the laws to allow people to feel that they can say what they want and that there are no ramifications for what they say.
We were all elected here to be the voice of people who need our help. Words hurt, and this is a very real issue for people who are not getting their voices heard by those on the opposite side. Each and every passing week, this government prove themselves to be more out of touch with the people they represent. It is the one thing they are good at. You cannot make this sort of stuff up. Last Tuesday was the International Day for the Elimination of Racial Discrimination, and in every school it was Harmony Day, but at Parliament House it was the day the government announced it wanted to change the law to give permission for more racist hate speech. Then, to add to the government's absurdity over this, we had Senator Brandis saying that these changes to 18C defended the free speech that the Anzacs fought for. I do not believe that is an accurate reflection at all.
Now we are standing here because the government is seeking to rush through these changes without any proper consultation. I ask again: how out of touch does this government have to get? Former Prime Minister John Howard has even joined the debate, strongly supporting the government's planned amendments. Mr Howard said that these changes would reverse more than two decades of what he called 'pointless Labor legislation'. Just last week Mr Christopher Pyne was on radio, saying that section 18C had been twisted and no longer had any credibility. Let me ask you: how is a law that halts racial offence, insults and humiliation pointless? What does that say about this government? What does that say to young people? What does it say to the people who make up this country? What does it say to the multicultural communities in this country?
The government's changes will weaken protection against racial hate speech and racial discrimination—protection that has served Australians well for more than 20 years. We won the fight to protect Australia's laws against racial discrimination in 2014 and we will do it again. I think the government is just obsessed with 18C, and it is so unnecessary and so unfounded. Even the Racial Discrimination Commissioner said there is absolutely no case to make changes to prohibition of speech that insults, offends, humiliates or intimidates a person based on race. How on earth is this country going to be improved by more racial hatred? The answer is very simple: it is not—not today and certainly not tomorrow.
Mr Turnbull says we have a freedom of speech crisis in this country, but we do not. What we do have is a health crisis, childcare reforms which need to be fixed and 1.13 million people underemployed. We have an aged-care workforce crisis. These are the real issues that people in the community are concerned about. They are concerned about the cuts to penalty rates. They are concerned about the cuts to family payments. These are the issues people are talking about.
The government's changes to section 18C will not create new jobs or put an extra nurse in the ward or help any pensioners. They will not save penalty rates or provide the people of Tasmania with new infrastructure, and they certainly will not improve the lives of Tasmanian families. The Liberal Party's obsession with this shows everyone just how out of touch they really are. The Prime Minister can talk about free speech and political correctness all he likes, but the proposed changes to 18C have nothing to do with either of these things. The fact that I am standing here today, fighting to stop the government's changes that weaken protection against racial hate speech, is all you need to know about this government. How can they come to the conclusion that it would be a good idea to remove 'insult', 'offend' and 'humiliate' from the law? I do not know and I do not understand. What sort of government says that racial humiliation, offence and insults are okay, but harassment is not okay? Racial hate speech is real, it is demoralising and it hurts, and the last thing we should do is change the laws to allow more of it
Labor will oppose any attempts to weaken protection for Australians against racial hate speech. We will not support any changes to section 18C of this bill as it stands, and I urge those on the crossbench to vote against these changes.
I rise to speak against the Human Rights Legislation Amendment Bill 2017. We have much more important business before the Senate. We have families being hit by cuts to penalty rates and there is the debacle of the social security system, yet we are spending all this time working out how we can allow people to make offensive, insulting and humiliating comments, without any comeback. I heard people here today say this debate is just about allowing them to have an opinion. Of course, everyone has a right to an opinion. This is not what we are debating here, and to pretend that we are is just disingenuous.
This debate is about being allowed to say hateful, hurtful comments based on another person's race. Is your opinion that I am somehow lesser than you because of my race, that I and my culture are not as deserving of respect as yours? This debate is about saying you have no right to take offence when people make these comments. But people have every right to take offence at this. You talk about freedoms and rights. Yes, people do have a right to take offence when hurtful, hateful comments are made to them because of their race. Australia is not colourblind, but in this bill we want to turn a blind eye to racism.
Racism is Australia's Achilles heel, our weak spot, our touchy national blister. I will not stand here and be lectured about racism and prejudice. I know what racism is and what impact it has and what personal damage it can cause. You only have to ask Adam Goodes or Nicky Winmar. Ask Michael Long or Senator Pat Dodson or former Senator Nova Peris or any of the multicultural leaders who were here in the parliament this week, consistently lobbying against this bill. They know what racism is. We live it every single day.
You cannot know what it is like to live with racism until it is a part of your everyday reality. Only then do you really know. I have heard so many members in this place express that it is something they do not experience. I certainly do not like standing here talking about racism, and I wish we were past that, but we are not. In my travels both as a member of parliament and as a journalist I have witnessed acts of racism against others. I have witnessed verbal assaults and seen a black woman refused a key to the toilets and told hurtful and hateful things about her because of the colour of her skin. I have seen a football team that wins a grand final for their south Arnhem Land team, only to be told they cannot celebrate in a local nearby pub because of the colour of their skin. I have received and continue to receive at various times racist comments and behaviour as a result of the colour of my skin.
From the get-go, white colonialists regarded first nations people as inferior beings and thought it was okay to denigrate us and take our lands and, in many cases, take our lives. This month, 112 years ago, Jack Patten was born, a man regarded as one of the founders of modern Aboriginal political action. He spent his life fighting for equal rights and opportunities for Aboriginal people. He spent his life believing in a better Australia, a more united Australia, a harmonious Australia and a just Australia. He fought against all the injustices, and this included the right not to be vilified and regarded as lesser because of race. In a speech delivered at the 1938 Day of Mourning and protest, Jack Patten said:
Our children on the Government stations are badly fed and poorly educated. The result is that when they go out into life, they feel inferior to white people.
This is not a matter of race, this is a matter of education and opportunity.
This is why we ask for a better education and better opportunity for our people.
We say that it is a disgrace to Australia's name that our people should be handicapped by undernourishment and poor education, and then blamed for being backward.
Jack saw clearly that Indigenous Australians were denied opportunities yet somehow that was their fault and that made it okay to denigrate people of a different colour.
We only need to read government sanctioned reports like the Bringing them home report, released 20 years ago this year, which tells story after story of the suffering of children removed from their families because of the colour of their skin and often that left behind an even deeper and tragic legacy of intergenerational trauma for them and their descendants. Sadly, this type of racist view still exists today. It festers on in social media and in institutionalised racism. We heard recent calls from congress for a broader look at such racism in our health and prison systems.
When I first stood in the Senate and addressed each of you in my maiden speech I touched on the real harm that racism and racist commentary can do. We need only be reminded of the hateful and hurtful commentary on race that ended the stellar career of AFL hero and Swans legend Adam Goodes. Then there is the work of Michael Long, who back in 1995 make a stand against racial abuse after an on-field incident. He is one of the pioneers behind the racial abuse code adopted by the AFL in the 1990s. Are we asking to weaken this? Is it infringing on the rights of footballers? Are they just expressing an opinion? Of course we are not.
I wish I could believe that there are no racists in Australia, but certainly my personal experience, my family's experience and that of those around me informs my reality. Being the target of racist, hateful comments and actions is deeply hurtful and deeply distressing and causes great harm. It causes insult, causes offence and causes humiliation. From a cultural perspective, to be incredibly humiliated can bring even more tragic circumstances. I know this as a fact. I know this because this is how I feel when I am subject to these comments. And it is not just personal; institutional racism, as I said earlier, is very much alive and well. It may not be as visible, but it is there and people feel it.
In my time as a journalist my work was never constrained or diminished by section 18C. I worked for 20 years as a journalist across Australia. As a former journalist and now senator, I am a firm supporter of free speech, but free speech is not hate speech. Former Prime Minister Paul Keating said in his Redfern speech:
I think what we need to do is open our hearts a bit. All of us. Perhaps when we recognise what we have in common we will see the things which must be done—the practical things.
As I said, I do not really want to be talking about the hateful reality of racism. We have spent so much unnecessary time on trying to remove a very important piece of legislation so unnecessarily. I want to be here talking about the many things that must be done—the work that needs to be done—to close the gap, to build a strong economy in north Australia, to ensure every Australian child has the opportunity to grow up safe, healthy and with access to quality education and to ensure that women have a right to safety across this beautiful country of ours. So let us open our hearts just a bit and think about what these changes to section 18C mean and the really deep potential impact on the lives of Australians.
In closing I would like to quote again Paul Keating's Redfern speech. He said:
We failed to ask—how would I feel if this were done to me? As a consequence, we failed to see that what we were doing degraded all of us.
This is what racism and hate speech do. Weakening laws against it degrades us as a people and a country.
I rise to speak on the Human Rights Legislation Amendment Bill 2017. We all know that in this place any law can always be changed and improved. The changes to section 18C of the Racial Discrimination Act 1975 proposed by the government weaken the protections for Australians against racial hate speech and racial discrimination. Aboriginal and Torres Strait Islander organisations and people have had no opportunity to comment upon the changes proposed in the bill. For reasons beyond my understanding, the Aboriginal Legal Service was not allowed to appear at last Friday's Senate Legal and Constitutional Affairs Legislation Committee hearing on the draft bill and the spokesperson for FECCA was not allowed to finish their opening statement by the chair of the Senate committee. But this should not be too surprising, given that these changes were insultingly announced on Harmony Day, the International Day for the Elimination of Racial Discrimination.
The Aboriginal Legal Service and other organisations may have contributed to the Parliamentary Joint Committee on Human Rights inquiry report, but that is not the point. They were denied an opportunity to comment on the text of the new bill and the inclusion of 'harass' instead of 'insult, offend, humiliate'. They were denied the opportunity to comment on the introduction of 'a reasonable member of the Australian community' as the objective standard for determining a breach of the section.
This bill is not about freedom of speech; this bill is a display of contempt for Aboriginal Australians and members of multicultural communities. The Bolt, QUT and Leak matters all involved Aboriginal people, so Aboriginal organisations and individuals should have been consulted. Their exclusion from the process is disgraceful.
Section 18C, as it is currently drafted, is not 'an inappropriate mechanism of political censorship used to stop people from expressing opinion', as noted by Senator Brandis in his second reading speech. There is certainly scope to review the complaints process through the Australian Human Rights Commission, provided there are not additional delays, costs and impediments to justice. But the wording of 18C has served Australians well for more than 20 years. Section 18C is read in conjunction with section 18D. It ensures that freedom of speech is not unduly restricted. Neither the QUT case nor the Leak case provides a sound basis for amending section 18C. These are just two cases in a catalogue of 18C cases spanning over 20 years.
If we consider the Bolt case, it will be recalled that the articles he wrote were held to be defamatory because they 'contained errors of fact, distortions of the truth and inflammatory and provocative language'. When the articles were originally published, the public sentiments directed at Aboriginal people were hateful and vulgar. One of Bolt's readers responded to his article by writing in the online comments section: 'If only there were nerve gas chambers back in 1788.' Andrew Bolt's latest claim is that a person will have to be insulted on the basis of their race five times before they would fall under the government's definition of harassment. We know that in another case the court has interpreted 18C so that it only applies to 'profound and serious effects, not to be likened to mere slights'. Amending section 18C will not promote freedom of speech—it will promote racial hate speech and racial discrimination.
Seeking to change section 18C of the Racial Discrimination Act illustrates that the Australian government is not genuinely committed to Closing the Gap. In the survey 'Localities Embracing and Accepting Diversity (LEAD) Program 2010-2011' it was noted that: 'The link between poor physical health and mental health and self-reported perceptions or experiences of racism has been well documented. Racist attacks can cause injury and psychological distress. The targets of racism are at greater risk of developing a range of mental health problems such as anxiety and depression, which are contributing factors to the health gap between Australia's First Peoples and other Australians.'
These are the real impacts of racism. If the new test of racial hate speech and racial discrimination is to be put to the hypothetical 'reasonable member of the Australian community', how do we gauge the input of fellow Australians from diverse cultures and backgrounds? The people who are pushing to amend section 18C have absolutely no idea about the toll of racism. Senator Hanson spoke of an incident of reverse racism yesterday and the incident is indeed unfortunate. But it does not illustrate that she understands and has felt the devastating damage and cost of sustained lifelong racism. Senator Hanson, and the other senators obsessed with amending 18C, have never known what it is like to grow up as 'other' in an exclusive society.
Senator Hanson also says that it will come down to the pub test. What bar will that be in—the white bar or the black bar? This type of unlegislated segregation still exists around Australia. Everyday Australians are not talking about changes to 18C at the pub this weekend. They are talking about when work will pick up again, how hard it is to buy a house in their town or suburb, or the future of their children—or they may be just talking about the footy or the cricket. This ideological campaign of certain members of the government and crossbench has no value to everyday Australians, whether they be Indigenous Australians, migrants or descendants of the First Fleet. This campaign is bereft of any tangible benefits because Australians already have freedom of speech in this country.
(Quorum formed)
It gives me great pleasure to rise tonight to speak on reforms to section 18C of the Racial Discrimination Act because what we are trying to do with these reforms tonight is continue in the fight against tyranny. I have said before in this chamber that we are at the end of the second hundred-years war, and this second hundred-years war is the war against tyranny. It started in the Great War with an expansionist Germany. It continued through fascism arising in Germany and continued with communism as it enslaved the peoples of Russia and Eastern Europe. Our fight against tyranny paused in 1989 with the fall of the Berlin Wall, when the freedoms that were fought for were given to the people who were formerly under the yoke of the Soviet oppressors. It erupted again, sadly, in New York in 2001, when terrorists attacked the World Trade Center.
The components of this hundred-years war against tyranny that I want to talk about tonight I spoke about in my maiden speech. The first concerns governments restricting freedom of speech and freedom of association and how leftists delegitimise all views other than their own. How we see 18C operate is a classic demonstration of the consequences of the government back in 1995 bringing in changes to the Racial Discrimination Act that have had the effect of shutting down freedom of speech. We also see with the 18C debate that anyone who believes in freedom of speech is attacked, marginalised and portrayed as some hard-right fighter by those on the left. That is disappointing because, when it comes to this hundred-years war against tyranny, the principles which have underpinned this fight have been freedom of speech and freedom of association.
With 18C, who are the victims of this nefarious section of a piece legislation? Let's talk about the victims of 18C. One was a journalist—let's try and stop a journalist from expressing their views. Andrew Bolt probably is not my biggest fan. In fact, you could probably say he and I have what you would call a—
Why!
It disappoints me because I actually do like Andrew. Andrew, I am sorry that you are cranky with me at the moment. How Andrew was treated with 18C was a disgrace. It was his case that first shone a light onto how 18C was going to be used by the left to delegitimise those with different views and stop them from expressing them. A journalist—that is who 18C has been used against. Then we had some students from Queensland—some normal university students who went to the Queensland University of Technology, a university that I am actually an alumnus of. One of them, it is alleged, made a throwaway comment, though it has never been proved that this person did make this comment. What happened to these students? Their lives have all but been destroyed by how 18C was used against them. It was used to turn this into a modern day witch-hunt against them. But, of course, the poor students did not even know about 18C and the Human Rights Commission, this Stasi-like Star Chamber. A so-called investigation went on for months, if not years, into their alleged conduct. These poor students have had to face excessive legal bills and their careers have probably been destroyed by the Human Rights Commission and by the fact that someone was able to make a complaint against them under 18c because this person felt offended by something that one of them may or may not have said. That is the problem with 18C: it stops people from expressing their views.
The third person I want to talk about was a cartoonist for one of our newspapers—an artist, someone who painted and drew. 18C was used against Bill Leak, an artist who, sadly, passed away. What type of society or country are we becoming when a journalist, some students and an artist are being dragged before a Stasi-like Star Chamber, not because they have committed hate crimes but because someone out there may have felt offended by something they said?
It is offensive on so many levels that the left are using freedom of speech to effectively criminalise those people with whom they disagree. This is the challenge that is facing Australia at the moment. We have seen a revitalised and revised left who are very excited by Jeremy Corbyn because he is doing so well in the United Kingdom and very excited by Bernie Sanders because he did so well in America, and what they understand is that they can use political correctness to stop those who have different views from expressing them. But it gets worse than that: we have seen the President of the Australian Council of Trade Unions say that she is going to treat the law like a smorgasbord—she will only obey the laws that she agrees with, so any laws that she disagrees with she will quite happily go and break.
Australia is based on certain pillars—freedom of speech, freedom of association and the rule of law. We are seeing—with this attack on those freedoms, through the use of 18C or how the modern union movement see the law not as something to be obeyed but as something to be disobeyed—how the modern Left think, and that is a real problem.
We have already seen this week a member of the Labor Party saying that they wish to see 18C extended—even though it is to do with racial discrimination—to include a similar provision that deals with religion. Suddenly, you cannot have discussions about religion in case people are offended. Is this modern multicultural Australia where we cannot talk about religion, where we cannot talk about issues that impact on modern society? Because the true test of a tolerant, inclusive society that believes in freedom of speech is how freedom of speech is treated and, by that, the Left only believe in freedom of speech with which they agree. Views that they disagree with, they do not believe should be expressed and they do not believe in that freedom of speech. So, if we allow the Left to continue with this tirade against freedoms, we will end up on that slippery slope—I think we are on it at the moment—where people are afraid to speak their views, and that is a problem and that is dangerous for Australia.
No-one supports racism, and it is offensive of the leftists, who snigger and are snide, to imply that, because we believe in freedom of speech, somehow we are de facto racists or supporters of racism. That is incredibly offensive.
It is those of us who believe in freedom of speech who understand that, when people express views that may be racist, the best way to deal with it is not by using the police to arrest people and lock them up because they have expressed views with which you disagree. The best way, if you are upset that someone has said something that you are offended by, is to call them out. The problem with 18C and this legislation is that the Left presume that all Australians are a bunch of bigots, a bunch of redneck racists and that only the Left—the Labor Party and the Greens—can protect Australians from themselves. If it weren't for them, there would be lynch mobs running around this country hanging people off lampposts, which is incredibly offensive to those of us who believe in freedom of speech.
If someone does say something racist, you call them out on it. You do the classic Australian thing: you go, 'Hang on. Don't say that. That's racist.' And you will find that that person will stop saying that. But, if we go down the path of 18C where we have a Stasi-like Star Chamber where journalists, artists and students are dragged before, effectively, secret inquiries determining whether someone could have been offended by a comment that someone may have made, is this modern Australia?
It is important that, when we come to freedom of speech, we consider that of course there are defences. If I go back to my rusty old days as a quite average law student, I think it was Lord Denning who said that freedom of speech is limited in terms of a person shouting out—the man on the Clapham omnibus—'Fire! in a crowded theatre. If people feel they may be libelled, there are mechanisms through the courts that people can take.
The changes that we are proposing actually strengthen the provisions of the Racial Discrimination Act, because we are concerned that the subjective test of being offended is being used to stop people from expressing their points of views. We want to change that test and shift it from what a subjective member of a particular class of persons may feel to what an objective member of the Australian community may feel. This is so important because this shows the difference between the Left and the Right.
We believe in common sense, common decency and the common purpose of the Australian people. We understand that, when it comes to a test of when someone has said something that may be racially tinged, shifting from a test based on the subjective view of being offended to an objective view is a better way, a safer way and a more reasonable way to make sure that those who engage in racist conduct are properly judged. That is not how it is at the moment where 18C is used as a de facto police force to stop journalists, artists and university students from expressing points of view.
We think the changes that we are proposing to section 18C of the Racial Discrimination Act, which are to insert certain words and take out other words, will actually strengthen the act. But, as importantly, we also believe that the complaint-handling processes of the Human Rights Commission certainly need looking at. How the Human Rights Commission has operated is a concern to those of us who believe in the rule of law, which is probably only those of us on this side of the chamber. It is allowed to act as a Stasi-like star chamber to drag people in and to have investigations that go for months, if not years, and people's lives are all but destroyed by the actions of an unelected body that has in it a bunch of—let me be blunt—faceless bureaucrats or, in the alternative, attention-seeking bureaucrats who are using the Human Rights Commission as a vehicle to push their own view of what modern Australia should look like.
We on this side believe that the rule of law and natural justice were absent from, in particular, the treatment of those students—who were, I think from memory, just teenagers—by this body. I do not think the President of the Human Rights Commission has ever said sorry to these students. If it were not for these students being able to have some very able lawyers in Brisbane offering to help them pro bono to fight this insidious case that was brought against them, these poor students would probably have had to settle and sign all sorts of agreements because of the pressure that was put on them not only from a mental health perspective but also from financial impacts that were put upon them. Other students did settle for $5,000, and this shows how the Human Rights Commission was being used as some sort of fancy automatic teller machine in which complainants were able, because they were offended, to take a complaint to the Human Rights Commission and say that they were offended because someone said something that made them upset and they should get some money for it. That is wrong. It is wrong that students, an artist and a journalist were treated in such a manner by such a body because a section of an act of this parliament allowed this to happen.
What we are doing here is strengthening the provisions of 18C that concern people who may have been harassed or intimidated by racial vilification. But, as importantly, we are making sure that freedom of speech flies strong in Australia, because there is an attack from the left on freedom of speech and freedom of association in Australia. There is an attack from these leftist elites who believe that the Australian people do not have the foresight, the common sense or the thoughtfulness to make decisions on their own in relation to such matters and that government knows best, but especially a Stasi-like, Star Chamber element of government which can call people into windowless rooms and accuse them of the most heinous crimes based on the fact that someone is merely offended. This is Australia in 2017, and now is the time that we must make a stand for freedom of speech and freedom of association and defend the rule of law.
I too want to make a contribution to the debate on the Human Rights Legislation Amendment Bill 2017. I must admit at the outset, though, that I am one of those Australians who would say to you that, except for the fact that I am in this place and this debate is taking place here, my mind has not been occupied with this debate over my cornflakes or in the circle of people that I move in. I had over 100 guests at my home last weekend, as I celebrated my 35th birthday!
Order! Order!
Whilst we spoke about many things, including matters of politics, the question of 18C did not dominate any of the conversations. It is only as a result of it being elevated here in this place in a political sense that I have been caused to think through the issue.
My first experience with the question of free speech was in or about 1985, when I had the privilege of spending nine months in the United States, four of which were at the FBI Academy in Quantico, south of Washington, where I was occupied with looking at the issue of serial offenders on behalf of the police forces of Australia. In the course of that, I came across my first experience with an organisation called NAMBLA, the North American Man/Boy Love Association, which was a public group who occupied offices in both Washington and New York. They were funded, obviously, by demophiles and paedophiles. Through their right to exercise free speech, they were able to operate with impunity to advocate for sexual relationships between adults and children who were in puberty—so we are talking about young men. Indeed, they also made the case where young women were concerned. They were promoting that when a youth turns 10, 11 or 12—in that sort of time zone—they should be allowed to have carnal relations with an adult or another individual of an age not specified.
I have to tell you that, as a young fellow from Queensland, whilst I had not lived a sheltered life—I had by then been a detective for almost seven years—I found it abhorrent, so much so that I did a speech. International students were invited to do a speech in the auditorium on Wednesday nights before the movie. There were about 800 seats in the auditorium, and they were always occupied. I still have a copy of that speech where I spoke about freedom of speech. As far as I was concerned, I did not think that it extended to the NAMBLA organisation. As you might appreciate, the speech was provocative. Many of my fellow students at the academy decided to share their views with me, most of them very strongly in favour of freedom of speech, notwithstanding that they recognised the abhorrent nature of this particular organisation.
That was the first occasion in my life where I turned my mind to the subject of free speech. I came to understand this principle that I can violently disagree with almost everything that someone has to say, yet we in a free society have an obligation to fight for the right for them to say it in the first instance. I get the freedom-of-speech thing.
I have to say that, as I grew up and in my life's experiences generally—except for exceptions as a young student and the juvenile behaviour of some with their language—I have not been exposed heavily to events of racism, notwithstanding that I was an active police officer for 15 or 16 years. I suspect that has much to do with the fact that most of my service was in country and remote parts of my home state of Queensland. I have never lived in the city. I have always lived in regional parts of my home state and country areas. I have been largely associated with communities and with societies and active economies that have to do with rural affairs.
I had a lot of friends as I grew up who were young Aboriginal men. I married a girl from Barcaldine, where there is quite a significant Aboriginal population. In the many, many dozens of occasions that I was out there I had the privilege of meeting and becoming friends with many of the friends of my father-in-law. They were Aboriginal men with whom he had been droving and shearing—and I imagine that was your experience too, Senator Williams—over a long period of time. There was often banter. It was banter that would, I think, attract the attention of the existing legislation prima facie, but it was not banter that offended. It is the subjective nature. I have often been referred to as fat and ugly. It has been frequent. Due to the fact that I am fat and ugly, it was difficult for me to take offence to the notation, but there may be others who would.
What attracted me, as I considered the circumstances of these changes in the legislation, was this subjective test. No matter what else we might think about these changes being proposed by our government, we are going to at least transition to a more objective test, the test of reasonableness, which is a word not foreign to the judicial system. It is used as a standard to validate in criminal cases. Here is an area where for 16 years I had an obligation to present evidence to courts to prove beyond reasonable doubt any fact that I wanted to rely upon as an element of a charge of a prosecution, so I am very familiar with this question of 'reasonable'.
That goes to the very heart of why we have juries with 12 people. The courts will educate them in situ on what this term 'reasonable' means. The standard is, at least in our country, that all 12 of them have to agree after they have each individually—separately from each other—applied their test of reasonableness. It is not just a case that seven find that a reasonable proposition and five do not; all 12 of them have to find that. This process, whilst not perfect, has served this nation and its criminal justice system well, and indeed it is in most Western societies. It is a system that we inherited from the mother country, and it still applies there.
There is a lovely old saying that an empty Coke bottle to one person is an empty Coke bottle, but to the other person it is 5c. That is what subjectivity does to somebody. There is no room for that, as far as I am concerned, in a judicial system, in this case.
Imagine if we were to get a bit sensitive in this place. There would be complaints between the hours of 2 pm and 3 pm most days. I think that, on an active day when I am on my game, there could be 30 to 50 complaints lodged about me, and I am not one of the more active offenders.
Senator Williams interjecting—
No, I am quite conservative. Sometimes, Senator Williams, I do get a bit excited, I will admit, but there are others. So you could leave here after question time with a couple of hundred complaints under this act, if we were to deal with 'insult and offend', and apply a subjective test.
The thing that did move me towards these changes—there have been a couple of fairly prominent cases mentioned, and I will be at risk of repeating some of the observations that have been made—was the Cindy Prior case, with the three young students from QUT. Without going to the substantive allegations, which on face value seem to me, even though I have said I have limited exposure to racism, to have been on the extremely low end of the scale, even in my assessment of things. What we saw was that the process in itself became a punishment. Not only that, the process offended the principles of natural justice. These people were under investigation. There were active things happening about them, that were to lead to them finding themselves in a civil suit, and they were not even advised. What makes it even more insidious is that some of the activities were funded by the state. Some of these activities were activities of the Human Rights Commission, which is funded by this very place. I could not think of anything more offensive than that.
When they did become engaged and became aware—I heard Senator McGrath mention that they were represented on a pro bono basis. I have seen estimates from people who think that, even in their circumstances, they would have been confronted with legal fees of about $10,000. I must admit, when I first read that I thought it was light on. I am yet to have an engagement with a lawyer for sub $10,000, I can tell you, and I have needed them in some fairly minor circumstances myself. Let us add this up. If these three students had not had pro bono representation there is a cost of $30,000 to somebody, perhaps even the state—it is state versus the state if someone has attracted legal aid and the Human Rights Commission is on the other side. That is like punching yourself, to be honest. Then these young people, I understand, settled for $5,000. So we are now at $45,000. This is not just about the money, but this story really shows how unreasonable the process is, how impotent the process is—in fact I think the word 'silly' can be applied to it.
I have had my time at estimates with the Human Rights Commission. By jiminy, that is like trying to pull a hair out of your ear with a pair of canvas garden gloves on. You cannot get any information out of that mob. Only the good Lord knows how much they would have spent on the process, but it would not have been cheap. So I think we are well over $100,000 where some students commented on what they saw as evidence of segregation. Indeed, I was astonished to find there are these segregated areas where you need to declare, in this case, your ethnicity, your nationality or that you are Indigenous before you can enter into the space. That place used to be a bar that was reversed. They could not walk in there now. We could not walk in there. This is just stupidity on skates.
I am not going to go over the Bill Leak and Andrew Bolt cases, but I think it was right for those who hold a passion in this place to visit this issue and to revisit it. There have been some people—Mr Acting Deputy President Bernardi, you are one of them—who have championed in this place for a considerable amount of time.
I heard a contribution from one in the Labor Party talking about groundhog day, about how members of our side of the parliament have persisted in this to bring this to something, to bring this to a test, to bring this to a vote in this place. Sometimes in this place I feel like I am in a parallel universe. I was here not three days ago listening to a debate where these people were supporting the head of the ACTU, who said, 'Protest! Be active! Activate yourself and go against laws you do not agree with. Continue! Get the right to vote for women. Get the right for negro citizens in the United States to join us in a bar or on the bus. Fight for it! Continue to fight!' If as a legislator you do not have the courage to continue to fight and test the question around important issues such as this, you should pack your bags and go home. I think part of Senator McGrath's message was that there are people in this place—I could name them, alphabetically—who really fire up in protest when a statement is made, an idea is advanced, a debate is had or a question is tested and they do not like the potential answer. By jiminy, it gets their bloody hackles up. That is where some of my best fun comes. I know exactly what button to push on some of these people, and they will light up like a Christmas tree.
I think that the Leak case, the QUT case and the Andrew Bolt case have magnified the interest in this matter. Without breaching the confidentiality of our joint party room, I have heard passionate arguments on both sides of this question. We have members who live in communities where a high number of ethnic people live, and they hold a strong view about this.
I could talk for a long time on this subject, now that I have taken interest in it, but let me close by saying this. These changes are going to mean that there needs to be active behaviour—not a throwaway line, not a sledge on a football field, not a schoolyard tussle between two kids where some unfortunate statements are made; these changes create a need for activity—for you to be exposed to prosecution under this legislation. The legislation also deals with the process, which is important. I said earlier that the process itself was a punishment. If you were one of those students, it has taken 18 months of your life and will cause reputational damage long after you have left your university. Thirty years later, when your name comes up in conversation, you will not be remembered for your intellect, your power as an athlete, your student politics behaviour or your contributions to the newsletter; you will be remembered as one of the people who was prosecuted on those flimsy circumstances. I think this legislation is important, now that I have had time to consider it. It is legislation I can recommend that my colleagues support in this place.
It is a privilege to be able to make a short contribution to this debate on the Human Rights Legislation Amendment Bill 2017. I do not often speak on legislation that I am not carrying or that is outside the portfolio I represent, but I have spoken on this particular issue on a number of occasions in this chamber as it has arisen over the last few years. It is an issue strongly felt by me and by many of my colleagues. I will not repeat what a number of my colleagues have gone through earlier this evening with respect to specific examples, but there are some issues and some perspectives I would like to highlight.
I have long said that I am a first amendment type of person. I am not necessarily someone who is in favour of a bill of rights, but I have always said that I would not have a problem if there were a constitutional restriction on parliament passing laws abridging freedom of speech. A liberal democracy depends on the free flow of ideas. A liberal democracy depends on that being sometimes ferocious, sometimes unpleasant, sometimes difficult, but the flow and debate are critical to achieving some of the changes that opponents of this particular bill today are actually lauding in their speeches. Speech in a liberal democracy cannot be the product of a licence by the state. We have an inherited tradition in this country—founded following the revolution in England and the changes of the 18th century—that says that speech is free unless there is an overwhelming reason for the government to legislate or regulate against it. My colleague Senator McGrath earlier referred to the famous example of not being able to shout, 'Fire,' in a crowded theatre.
But underpinning the arguments put forward by those opposite who seek to license speech—and, when they were in government, as I will highlight, they floated proposals to license speech and proposals to regulate the media in a way unprecedented in this country, outside wartime—is the philosophy that somehow it is up to this parliament to grant citizens the right to what they can and cannot say, to define acceptability. Where there is an immediate risk to someone, where there is a threat of violence to another citizen, where there is a threat to the safety of our citizens, no-one disagrees with that. But this law, as it stands at the moment, goes much further. I am surprised that the parties opposite, including the Greens—and some of their predecessors in the WA chapter of their party opposed this particular legislation in 1995 and indeed predicted some of the concerns that history since then has shown were true—now are so vehement in their support for a law that has proven itself to be flawed.
The last time this was debated in this chamber, there was an argument put that changing section 18C—and the changes put forward in this bill—somehow represented the grant of the right to be a bigot. I say to those opposite and those concerned about racism in Australia: look at our history. Our great, overwhelming success in establishing the world's most successful multicultural country happened, in the main, before this law came onto the statute books in 1995. We all have stories of family or friends or neighbours or growing up in our multicultural communities. All that success happened before there was a law that has proven itself to be so flawed. All that happened before those opposite took it upon themselves to say that it is up to this parliament to license appropriate and inappropriate speech.
But what I say also is that in this world, where technology has changed so much, the idea that we can license speech is flawed. I want speech to be free so that it can be repudiated. I want to be able to challenge the person who is racist or sexist. When there are those who would deny historic calamities like the Holocaust, I want to hear that argument so I can outline why they are wrong, why it is offensive and why it needs to be repudiated in the modern world. That is important, as we move away from historical events, even our own past, where not all events in Australian history are moments that we are proud of, but we are a product of them. Our success as a multicultural country—not being free from sin, not all having a halo—came before laws like this one that has dramatically impacted on the rights of people, albeit of a few, like that group of students from QUT. I am not trying to dismiss the idea that racism can hurt, but why is it that those opposite dismiss the accusation of state-endorsed racism and that what happened to those QUT students does not hurt them? Why is it that the process that they were put through, profoundly unfair as it was—no-one can defend it—where they were accused of being racist when they clearly were not, is somehow dismissed as not worthy of this parliament's consideration? I think that shows one-sidedness.
One of the arguments against this change, at its core, has also been that community leaders think that this is a bad law. Well, we are not a nation of tribes. We are not a nation defined by leaders of distinct communities. We are a nation of citizens. We are a nation where every individual opinion, every individual vote, matters; and where people are accountable for what they say and it can be repudiated or they can seek to persuade their fellow citizens. The fact that self-defined community leaders—or, indeed, those elected by some but not dominating the field, not able to claim the membership of every one of that group—might think this is a bad law is not an argument that means we should not be considering a legal change, when we have demonstrated some of the problems.
That leads to what is one of the most dangerous and, I think, one of the most offensive elements of one of the arguments used against this bill, which is that somehow certain people, because of the colour of their skin, their gender or their background, do not have the right to argue for a change to a law like this. That is the first step towards institutionalising the very racism, or the very sexism, that some of those opposite claim to oppose. I do not claim to have the experience of suffering direct racism. I cannot claim that experience. But those opposite should not say that, because I have not had that experience, my view is invalid and should be dismissed. That is the core of that argument. It is the cancer of identity politics eating away at Western civilisation, where who you are—a label assigned to you by someone else—is more important than the deeds you undertake or the words you utter.
This law has proven itself to be flawed. We have heard example after example, particularly that of the QUT students. As someone who made a small contribution to their legal fund, on a website, I say that when you have all these groups, many publicly funded—if not directly, then indirectly through access to tax deductibility status—who are able to assist complainants, how can we have a situation where thousands of dollars, let alone tens of thousands of dollars, can be accrued by people addressing a complaint that they may not have known about for a year and for which there is not the standard of evidence we would expect for someone to be subjected to a civil or criminal procedure. The process can be the punishment, and it is inappropriate for the burden and the hurdle to be so low that we can put our fellow citizens through that.—
The other aspect of this law that has posed a problem is that it can ban opinion. I refer here to the Bolt case—not that Mr Bolt has been fan of mine over recent weeks and months, I must add. But free speech matters, regardless of the proponent and regardless of what the opinion expressed may be, because it gives us an opportunity to repudiate it. The Bolt case led to the prohibition of the publication of an article of opinion.
It is still on their website.
It is not on the News Limited website. Well, it was not the last time I looked, because I checked. That was an article of opinion. Do we want to get to the point where the publication of articles of opinion can be prohibited by a court? I think that is profoundly troubling, because the next step will be that other opinions are banned. The problem with that is that the opinions banned are not always going to be ones that the proponents of laws like this want to see banned.
Under the last Labor government, there was a proposal to dramatically expand, in effect, the grounds on which free speech could be limited brought forward by the then Attorney-General, Ms Roxon. There was a proposal brought forward by the then minister for communications, Senator Conroy, that proposed—for the first time, I think, outside wartime in this country's history—the regulation of newspapers, not just broadcast media, the big difference being that the rationale for regulation of broadcast media is the public ownership of the spectrum and the fact that it is limited in quantity. But that has never been applied to newspapers because there is no limit. The idea put forward that there would be a newspaper tsar that could make rulings and compel the production of certain things in newspapers that were imposed by the state puts a great deal more faith in bureaucracy than I think any of us should have when it comes to expressing opinions.
At the time, that was fought against very strongly by the then opposition, for the same reason that these laws are being proposed today. A law that has the effect of taking fellow citizens through a gruelling process in a profoundly unfair way—exposing them to public ridicule; to the opprobrium of being officially accused, with the stamp of a Commonwealth agency, of being racist; and to thousands of dollars of financial disadvantage, all in a process that does not meet the test of natural justice—is no way to treat our fellow citizens.
A law that sees the prohibition of the expression of an opinion in a major newspaper, offended though some might be—but this is a country that has historically valued free debate—is a law that is endangering the larger law it is part of. I am a strong supporter of the Racial Discrimination Act in principle: the Commonwealth should use a law to say all our citizens will be treated equally, regardless of their creed, colour or opinions. When I do citizenship ceremonies, particularly on Australia Day, I take pride in the fact that this is a country where, when someone takes the oath in good faith, they are as Australian as someone whose family has been here for six generations, like my family, or someone who was born here. There is no test other than a civic commitment to being an Australian.
But a law that allows the perspective of some to restrict the rights of another, particularly when it is so subjective, is a law that puts the Racial Discrimination Act, in my view, at risk of not maintaining the high degree of public support that it has. The Racial Discrimination Act is an important part of our legal settlement, but this particular aspect of it will cause it damage if it continues to be used increasingly in the way we have seen it used in recent years. I do not think that anyone would like that. I read about proposals to expand the grounds upon which speech can be limited or complaints can be made, through what is effectively a replica of the Court of Star Chamber in a modern sense, although without the power to fine or imprison but with the power to put people through a fairly gruelling legal process. That is going to endanger that important piece of legislation and the degree of public support for it.
There are certain laws where I think that the less contested they are in this place, the better, because they send a signal that they are something that all of the parliament and all the groups they represent across the country support. But we are now at the point where there is a genuine perspective from an increasing number of Australians that the law limiting speech on politically contentious opinions can be used as a weapon by one side of politics against another.
I have long opposed laws against blasphemy. I remember the action taken in, I think, the Supreme Court of Victoria against Andres Serrano's work of art—which I will not repeat the name of in the chamber because I think it is unparliamentary language. The court upheld that there was no modern law that could be used to suppress the publication of that work of art.
I do not like laws that censor. I do remember, when I was younger, reading and studying politics. It was not always my side of politics that opposed the abolition of censorship laws, but those who did oppose them I think were in the right.
Yet now, in areas that are much more politically contentious, in areas where we have confronting debates about issues where at least one side will use identity politics and talk about race or other issues as part of it, if you cannot have that debate freely and frankly, you will lead to a great deal of community conflict, and you will endanger the very strong public support we have for the Racial Discrimination Act. I do not think that is something that as a country we want to do.
These changes are entirely reasonable and entirely appropriate. In years gone past, I would have thought that, apart from the Greens in that corner, they would have been non-contentious for the Labor Party, which once did fight for speech, to remove censorship, and supported due process. Sadly, that does not appear to be the case on changing the words that have been outlined, particularly removing 'insult' and 'offend' and replacing them with 'harass'. I think that is an appropriate balance. I would personally probably go further, but I accept that historically I am on the harder edge of free speech. This is not a First Amendment country, as someone who supports these laws once put to me.
But this law strikes a balance that will protect the interests of those who are vulnerable. It will protect the institutions of those who support it so that it can still undertake the work that it needs to, but it will not do so by risking support for those laws by being seen to be ideologically charged or weaponised in a political context. There are many, many other debates that will become much more difficult in this country if this law is not changed. I hope the Senate sees fit to reflect the hard work by the Parliamentary Joint Committee on Human Rights and the work undertaken by the Attorney-General and others, over many years, to bring these changes forward and strike this balance.
I rise also to contribute to the debate on the Human Rights Legislation Amendment Bill 2017. I will be the first person to rise in recognition of the advances so plainly manifest in all levels of equality and personal liberty in Western civilisation. No longer is gender, race, religion, creed or any other identifying personal characteristic a significant barrier to aspiring to the heights that one may set oneself in our Australian society.
I also recognise that some gaps still exist which may limit personal liberty and aspiration. It remains incumbent on all citizens and government to be vigilant in narrowing these gaps until they are no longer visible. However, the one area of diversity that is in risk of decline is diversity of opinion or, more precisely, the freedom to express such an opinion without fear of personal recriminations or, as we sadly see all too often, intellectual assault or even bullying of an individual by sections of our society who have disproportional capacity to complete these character assassinations.
In the proposed preface to George Orwell's seminal masterpiece Animal Farm, he wrote:
If liberty means anything at all it means the right to tell people what they do not want to hear.
I am not proposing that the government should embark on radical changes to the statute with regard to protections against discrimination, libel and human rights beyond those proposed in the bill that we are considering today. But I firmly believe that these laws should be appropriately administered to advance and protect the cause of personal liberty in the sense proposed by Orwell and more broadly and that this bill helps to achieve that outcome.
As Nelson Mandela said:
For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedoms of others.
Senators, we live in politically correct times. However, political correctness should never be used as a crutch to stifle the most basic freedom that underpins and underwrites our liberal democracy: freedom of speech. Freedom of speech is the fundamental freedom that provides the ultimate protection against tyranny and against the creeping loss of other rights and freedoms. It is hard to identify any nation that has moved from a free democratic society into an autocratic, tyrannical or dictatorial state without the right of freedom of speech first being encroached.
Freedom of speech ensures that those whose rights are infringed, those whose liberty is curtailed and those who are being victimised have the opportunity to speak out against the injustices being done to them and just as importantly, or even more importantly, allows others to speak up for them. In this place, we should be the exemplar of embracing freedom of speech.
I am sure that all senators support the rule of law, which in its simplest form means that individuals should be governed by generally applicable and publicly known laws and not by the arbitrary decisions of kings, presidents or bureaucrats. Such laws should protect the freedom of all individuals to pursue happiness in their own ways and should not aim at any particular result or outcome. The primary importance of the rule of law is the emphasis it places on certainty, generality and equality in the legal system and on an underlying reciprocity between the state and the citizen. Ultimately, the inherent prize delivered by the rule of law is that it protects citizens from tyranny in that the law is above the tyrant. It is also a key element in a working democracy in that it delivers freedom, which is the essence of democracy.
The most important aspect of the rule of law is freedom of speech. From freedom of speech flows all other freedoms. The ability to speak one's mind, to challenge the political orthodoxies of the time, to criticise the policies of the government without fear of recrimination by the state is the essential distinction between life in a free country and life in a dictatorship. US Supreme Court Justice Benjamin Cardozo, who served from 1932 to 1938, wrote of free speech that it is 'the matrix, the indispensable condition of nearly every other freedom'.
I acknowledge that in Australia decisions that are made from time to time that have the effect of restricting freedom of speech are motivated often if not always only by the best of intentions and not by any sinister agenda to deliver tyrannical outcomes. No doubt the motivations behind the enactment of our current human rights legislation were genuinely well intended, seeking to provide real, needed and appropriate protections against racist actions by some that would cause harm to others. But just because the motivations were pure and the outcomes that the actions seek to deliver are desirable does not mean that the vehicle used to seek to deliver those outcomes is the right one or the perfect one.
I note that the Labor Party has indicated it will oppose these amendments when they come to a vote. The Labor Party's form in recent years has not been good on freedom of speech, as I heard noted by Senator Ryan. Who can forget their proposal under Prime Minister Kevin Rudd mark I to licence and regulate the media? To subject the press to the restrictive powers of a licensor is to subject all freedom of sentiment to the prejudices of a bureaucratic or, worse, political decision-making process and to make that process the arbitrary and infallible judge in all controverted points in learning, religion and government. It removes the right of every free man or woman to publish their opinion and confines that right to just such a person as the government-appointed process may deem proper. I doubt I need to stress the risks to democracy of restricting the freedom of the press and subjecting that freedom to the discretion of government.
Although I noted this as an aside, it does flow into the overall debate surrounding the application of section 18C as it stands, which impacts on the freedom of expression. The notion of freedom of expression is intimately linked to political debate and therefore the practice of democracy. One of the most notable proponents of the link between freedom of speech and democracy is Alexander Mieklejohn. He argues that, since democracy is self-government by the people, an informed electorate is a necessary prerequisite. In order to be appropriately informed, there must be no constraints on the free flow of information and ideas. Mieklejohn says that 'democracy would not be true to its essential ideal if those in power are able to manipulate the electorate by withholding information and stifling criticism'. He acknowledges, as I have already canvassed, that the desire to manipulate opinion can stem from altruistic motives but argues that, even then, 'choosing manipulation negates, through its means, the democratic ideal'. If he is right—and I will contend that he is—it is incumbent on those of us in this place and the other place to fight to protect the right of Australians to discuss complex and challenging issues which may at times include subject matters or even opinions which may be controversial or even offensive to some.
We may take a dim view of a person's opinion on a matter or even find that opinion abhorrent, but that is not in itself a reason to restrict the right of that person to hold or express that opinion. Any perceived detriment from not permitting such a person to do so must be balanced against the desirable outcome of protecting his or her freedoms and liberty and that of the wider community.
Within the spectrum of political correctness, sections of the media, our public institutions and our educational institutions run the risk of falling within the narrow bandwidth of an almost singularity of expression to the exclusion of all other views. I am saddened by the fact that the prevailing so-called 'progressive' view seems too fragile to withstand the robustness of diversity of opinion. All too often we witness seek-and-destroy missions launched against individuals who feel strongly enough about an issue to speak up against the cold winds of the left agenda.
Senators, in this place above all others we must demonstrate the strength of character to allow a diversity of opinion to be expressed. In his Indictment of Socialism (#3), 19th-century author John Basil Barnhill wrote:
Where the people fear the government you have tyranny. Where the government fears the people you have liberty.
And it is liberty above all else that we must strive for.
Almost every major change in our society, whether that be social, economic, scientific or otherwise, comes from dissenters who challenge the existing paradigm. The strong voices of individuals like William Wilberforce rose up against the prevailing majority and ultimately led to the abolition of slavery in Great Britain and her colonies. Whilst I am not a proponent of such theories, the Keynesian revolution led to a radical change in the methods utilised by policymakers seeking to redress the problems of underemployment and underinvestment. Almost every national government has maintained some level of vestigial Keynesian theory in their macroeconomic policy settings.
In scientific discovery we have seen a plethora of paradigm shifts, all possible only because authentic scientists know that we should never fall into the trap of believing that the science is settled. It never is and never should be. If the science were settled, paradigm shifts such as the transition to Mendelian inheritance from pangenesis, the transition to Einsteinian relativity from Newtonian physics and quantum mechanics replacing classical mechanics would never have occurred and the subsequent advances we are all beneficiaries of would not be improving our daily lives. In the case of each of these scientific advances, new scientific endeavour brought about by questioning existing science will inevitably move the realm of human knowledge further into understanding now beyond our comprehension or even imagination. In the same way, sometimes it takes the strong leadership of a minority view to prevail against the dismantling of institutions which have proven to serve our society so well.
The purpose of my comments in the context of the debate on ensuring that the provisions of our human rights legislation are properly focused on fully addressing racially discriminatory behaviour that should be outlawed is to reinforce the imperative that all such laws which inherently impinge on our freedom of speech must be balanced against that freedom and the benefits that it undoubtedly delivers. As Ronald Reagan once said:
Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same …
Many of the complex challenges we face in Australia are complex by nature, and by that nature require debate and discussion. Section 18C as it stands can asphyxiate such discussion and, in doing so, frustrate the best intentions of many in our community and, in doing so, undermine the very harmony in Australian society that we all strive for and, indeed, that the legislation seeks to deliver. Let me now turn to the details of the bill.
The Human Rights Legislation Amendment Bill 2017 contains measures that are intended to reform section 18C of the Racial Discrimination Act 1975 to amend the complaints handling processes of the Australian Human Rights Commission under the Australian Human Rights Commission Act and to make minor amendments to that act sought by the commission to enhance its operation and efficiency. The amendments in relation to the complaints handling processes give effect to the majority of the recommendations of the Joint Committee on Human Rights, which examined this in its report on freedom of speech in Australia, which was tabled last month. The bill will amend part IIA of the Racial Discrimination Act to redefine conduct prohibited by section 18C, to ensure that the defined conduct more accurately encompasses the notion of racial vilification. The words 'offend, insult and humiliate' will be removed from paragraph 18C(1)(a) and replaced by the word 'harass'. The word 'intimidate' will remain. The bill will also introduce 'the reasonable member of the Australian community' as the objective standard by which contravention of section 18C should be judged, rather than by the standard of a hypothetical representative member of a particular group.
I would contend that it is hard to contemplate what mischief is intended to be addressed by the Racial Discrimination Act that would not be appropriately addressed by the word 'harass' and/or 'intimidate'. I think the intention of the inclusion of the words 'offend, insult and humiliate' was originally to help eradicate certain behaviours by some of our community which would cause harm to others. Looking at the way the act is written, the reality is that the replacement of 'offend, insult and humiliate' with 'harass', combined with changing the subjective nature that currently applies in the test to a more objective one, will improve the legislation. It will better enable the legislation to ensure that, where there is behaviour that should be outlawed, that behaviour is clear, much easier to understand and better able to be addressed and dealt with.
Particularly on the objective nature of it, we often hear from those on the other side questions like, 'What is it you want to say that you cannot say now under the act?' The reality and the way I see it is that the subjective nature of the test means we just do not know the answer to that. We could be having a debate about complex issues, and there are a number of things in Australian society that are very unfortunate. We see a lot of disadvantage in some Aboriginal communities and poor health outcomes for a lot of Aboriginal people in communities across Australia. We see things that should not happen, and if they were easy to fix we would already have fixed them. They are by nature complex challenges. We cannot fix them easily, otherwise we already would have. In the context of having a discussion about how you move forward to deal with that, people will put forward ideas. We should be in a position where we can have a free and open debate on what is required to actually address these challenges and fix and resolve them. But, in the context of that, it is quite possible that somebody might make a statement which somebody else may subjectively find offensive. That statement may conceivably be a statement which could actually be useful for the debate. But until somebody finds that statement offensive, which is an entirely subjective thing under the act at the moment, we do not know what that statement would be.
In answer to the question, 'What is it you want to say?', you just do not know what people might find offensive, despite the intent of the person saying it, which may be completely altruistic. It might be trying to help, but until that person says it, we do not know if anybody would find it offensive. We need to include a more objective test, one where the standard required to be met before the act is breached would be 'the reasonable member of the Australian community' who is impacted. That way we can create a much more objective standard which people can understand, one which makes it clear to the average Australian when the line is crossed. But if it is completely up to an individual to decide whether they are offended or not, nobody will know where that line is. So I think this is a very worthwhile amendment that should be supported.
Further, the law should provide protection from racial vilification. I agree with that and I have said that already. That is not a problem, and that will remain in the bill. It should do so in a manner which is consistent with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. However, the protection needs to be consistent with the right to freedom of speech, as I have already outlined in the first half of my speech. It is fundamental to the strength and health of our liberal democracy. Effective protection against racial vilification need not curtail freedom of speech. That comes back to the balance I was talking about before. However, section 18C in its current form potentially does this, without providing any extra protection from racial vilification. Also, section 18C fails to protect against racial harassment—an essential element of protection against racial vilification. The government considers that the words 'offend, insult and humiliate' do not protect people from racial vilification. Rather, they target the expression of ideas and opinions, particularly those which may be controversial or challenging, as I have already canvassed. Section 18C must be amended to address the disconnect between the ordinary meaning of the words 'offend, insult and humiliate' and the way they have been judicially interpreted.
Why is the government making these reforms? As is widely known now, the government party room has agreed to these reforms because they will strengthen Australia's anti-vilification laws. There are people on the other side criticising us, saying that this is somehow a watering down and is allowing even the removal of hate speech, which is an impression I think some people on the other side are quite happy to allow out there. This is not the case at all. Firstly, this is not about hate speech as such; it is about discrimination. These amendments will strengthen the ability of this act and the Human Rights Commission and those who enforce this act to ensure that harassment and vilification on the basis of race is minimised.
The decision of the party room followed the release of the report into freedom of speech in Australia by the Parliamentary Joint Committee on Human Rights. The government is making these reforms based on certain recommendations of that committee report. It is entirely appropriate that the government introduce legislation following those recommendations, and that is what the government is doing.
There has been a great deal of public discussion. I think this is one of the few subjects in recent times that have been very broadly discussed. It was brought on particularly by the very unfortunate death of Australian cartoonist Bill Leak. That focused the discussion and debate in a way that it had not previously been. That great deal of public discussion has focused in particular on section 18C of the RDA and on the way in which the commission deals with complaints. A number of speakers have already referred to the case of the students at the QUT and the complaint against the late cartoonist Bill Leak, as I mentioned. Both of those were brought by the Human Rights Commission and they brought the issue to greater prominence.
I have already mentioned in my speech that there is a need to strike the right balance. In my view the government's amendments do strike the right balance between protecting social harmony, protecting people from some in Australian society who would seek to do them harm on the basis of their racial background, and mutual respect and the democratic value of freedom of speech, which underwrites our democracy.
Senator Wong commenced the second reading debate for the opposition on the Human Rights Legislation Amendment Bill 2017, highlighted the status of our concerns in this area and outlined our ongoing concerns with changes to section 18C that are represented in schedule 1 of the bill. When I was representing the shadow Attorney-General I spoke on this issue on several occasions in a former parliament. The Labor Party's position has not changed and I do not intend to occupy the Senate's time outlining those matters again—certainly several of my colleagues have gone into the detail of our concerns there—but I do want to spend a little time talking about our concerns in relation to schedule 2 of the bill, the amendments that are proposed there and the further amendments proposed by the government there.
We have serious concerns regarding these procedural amendments and also concerns with the process undertaken to address these matters. We have already had a debate in this chamber about the Senate Legal and Constitutional Affairs Legislation Committee's inquiry and the limited time involved in addressing these matters. I will indeed rely on my colleagues who have outlined those concerns in the Senate committee report. Unfortunately, a result of those concerns leads us to where we are today. So here we are at 8.10 on Thursday night failing to understand what the rush is here, apart from the fact that the government have a caucus decision and they want to stem the tide of pain that they have had over this issue and the mismanagement of this issue now over many years.
It is very clear, as my colleagues have outlined, that there is no popular support for these changes. Polling suggests that 80 per cent of Australians are opposed to these changes. But that does not stop the ideological agenda, despite people's early thoughts about Malcolm Turnbull as a Prime Minister. It does not stop this government seeking to progress this issue.
The concern I think is best highlighted—and this is the process concern, the concern with the limited time involved—by two things in the matters before us. We have on this occasion Senator Brandis, perhaps because of the status attracting to the second reading speeches of government ministers, painting a picture quite accurately and quite clearly. It is a rare compliment from me to Senator Brandis. In his second reading speech he said:
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.
That is an accurate description of recommendation No. 3. Let me compare that to the majority report of the Senate committee that looked into that bill. It certainly puzzled me with my understanding of how these matters proceeded, but I did not participate in the Senate inquiry as I now no longer represent the shadow Attorney-General. Page 8 of the report claims:
Recommendation 3 of the PJCHR recommended the removal of 'offend, insult, humiliate' from section 18C of the RDA.
Even Senator Brandis concedes that that is not the case. So we have listened to hour upon hour of government senators contributing to the second reading debate and it seems from their own committee report that they do not understand what the PJCHR majority found. This is a quite concerning matter.
There was another concerning matter, but the Attorney-General has clarified this issue for me. At one stage it was suggested that the government would tonight have further government amendments to the ones circulated in relation to schedule 2. I now understand that not to be the case.
That now denies what I understand could have been a new award for the Attorney-General, which would have meant we would now have a 'supplementary, supplementary, supplementary explanatory memorandum'. This would have been because there are significant concerns from the opposition, from the Greens and from the crossbench; even with the further government amendments to schedule 2 there are concerns with things proceeding this way.
So why the rush—apart from, as I said, to stem the tide of pain for the coalition in relation to its ideological campaign around section 18C. Let me paint another element to this picture. Commissioner Triggs is due to conclude her term at the end of June this year. The committee has had a number of recommendations from the Human Rights Commission about concerns—and the opposition and, I think, others still have concerns about how well they are represented in the bill despite the government's further amendments. But if we are going to be changing the head of the Human Rights Commission, and if we want in the future to have an institution that can stand the test of time with confidence and with political support with a new government appointment, then why wouldn't you let these issues wait until we have determined a new head—especially given that the Human Rights Commission are still saying they have concerns with the committee inquiry in relation to how the government has addressed these procedural issues.
Going back to the PJCHR, we have consensus that procedural changes should occur. But now, in part from the Attorney-General's contribution in terms of how those recommendations have been progressed on behalf of the government, that consensus is fading and falling away. I have genuine concerns that if we are to have a Human Rights Commission that can attract public confidence, carry the test of time and address the issues that concern all of us, we need to maintain this consensus.
So why rush this issue through now? Why not take more time to carefully consider these procedural changes? I know that all parties in this chamber have accepted that there is some level of consensus that procedural changes should occur. So why not represent that in the amendments before the chamber? This is our concern now because the government amendments that are before us do not well represent that consensus. There are still also technical and other problems that need to be addressed in a better way than a discussion at 8.20 pm when we have not understood exactly what was going to be the situation before us and where there have been suggestions that there might even be further government amendments. Why not take the time to get this right?
I can indicate that, because of our well stated and long held concerns—clearly articulated by Labor senators in the debate again today and indeed foreshadowed by our amendments, the Greens amendments and the Nick Xenophon Team amendments to remove schedule 1 from the bill—we are adamantly opposed to the changes proposed to 18C. But because of our concerns in relation to schedule 2, we think this whole process has been compromised. For those reasons, we will be opposing the second reading of the bill. We believe the government should go away and get the schedule 2 issues right—take the time necessary, come back in May or indeed even later when we have a new head of the Human Rights Commission—and we should all work towards building a consensus and public support and confidence in a Human Rights Commission to move forward.
For those reasons, we will be opposing the second reading. We understand that that opposition may not gain sufficient support in the Senate. If that is the case, we will then be moving to further amendments to ensure that what goes forward, if anything, is at an appropriate standard rather than our preferred position that the government go away and take the time to try and get this right.
This has been a very important debate. I want to wind up the second reading debate by turning to first principles—because although most of this bill is about process issues, about how the procedures of the Australian Human Rights Commission can be reformed, most of the debate on the second reading has been on the question of the government's reforms to section 18C. So let me begin my contribution to the second reading debate by addressing the question of why the government does feel that it is important to reform section 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 recognised by the High Court when it recognised 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 recognised, 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 fundamentally or 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 our greatest Prime Minister, Sir Robert Menzies, said in one of his Forgotten People speeches in 1942:
Let us … remember that the whole essence of freedom is that it is freedom for others as well as for ourselves: freedom for people who disagree with us as well as for our supporters; freedom for minorities as well as for majorities … Most of us have no instinct at all to preserve the right of the other fellow to think what he likes about our beliefs and say what he likes about our opinions. The more primitive the community the less freedom of thought and expression is it likely to concede.
The history of liberal democracy is the history of the struggle for freedom, and that struggle has many heroes. In fairly recent memory, one of those heroes was the novelist Salman Rushdie. This is what he said:
… one of the problems with defending free speech is that you often have to defend people that you find to be outrageous and unpleasant and disgusting.
But that is the price we pay to live in a free society. We cannot demand for ourselves a greater right to express our opinions than we are prepared to concede to any other citizen, regardless of how objectionable their opinions may be to us. In the words of Noam Chomsky, a great hero of the left whom I am not often given to quoting:
If we don't believe in freedom of expression for people we despise, we don't believe in it at all.
That is why 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.
That is where I stood 17 years ago and that is where I stand tonight.
We see the clash of fundamentally different views on display every day here in the Senate. The very purpose of 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 use words that 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 the essence of satire. That is something that the late, great Bill Leak, whose spirit, in a sense, presides over this debate tonight, 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 the target of authoritarians and fanatics, who slayed them because they dared to exercise their right to free speech.
Yet section 18C of the Racial Discrimination Act 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 section 18D provides certain carve-outs or exemptions. There should not need to be exemptions from a prohibition on free speech, because free speech is a fundamental human right which should never be censored in the first place. And, of course, whatever the exemptions, the very existence in our law of a provision like section 18C has a chilling effect on freedom of speech which can never be measured but is, inevitably, harmful.
Nor is it to the point that the limitations on 18C apply only to speech that concerns race, colour, or national or ethnic origin. Politicians cannot not loudly proclaim their belief in freedom of speech and, at the same time, ring-fence one area of public discussion—discussion about race or ethnicity—and say that freedom of speech principles do not apply to them. And, yet, that is the very thing opponents of these reforms have sought to do. That was the great vice in the attempt to censor the famous Bill Leak cartoon, which drew attention to an undoubted and severe social problem—the neglect of Indigenous children by delinquent fathers—and yet was said to fall foul of section 18C merely because it related to the question of race.
Indeed, it is the crowning irony of this debate that those who champion section 18C have actually in this very debate attacked those of us who favour reform, because of the colour of our skin. When on Tuesday I said that I did not believe that Australia was a racist nation, what did Senator Bilyk say by way of interjection? 'Coming from a white man,' she said. Senator McCarthy, in her contribution, said that I would not understand the issue because I was 'a white man growing up in Petersham', and Senator Di Natale said that this bill 'has everything to do with allowing a very small group of very privileged, largely older white folk in this place to be more racist than they might otherwise be.'
Those remarks are, of course, deeply offensive and insulting. It is deeply offensive and insulting to me for Senator Bilyk and Senator McCarthy to suggest that the reason I support this bill is because of the colour of my skin. It is even more offensive to everyone in this chamber for Senator Di Natale to say suggest that older white folk in this chamber support this bill so as to allow them to be—in his words—'even more racist than they might otherwise be'. But, surely, it shows how impossibly weak the argument is of those who argue against reform of section 18C that, in order to make their argument, they have to engage themselves in the very conduct which section 18C outlaws: to offend and insult those of a different point of view because of the colour of their skin. And, yet, that is what they have done.
The difference is: I do not seek to censor Senator Bilyk, Senator McCarthy or Senator Di Natale, offensive and insulting though their language is, because, like Michael Kirby and those others whom have I quoted, I accept that, in a robust freedom-loving democracy, it is never a sufficient reason to censor another point of view either because it is offensive or because it is expressed in offensive language.
This is not primarily a debate about race; it is a debate about free speech. Even if it had been a debate about race, it no longer is since the Labor Party has now said that it would seek to broaden section 18C to cover religious beliefs—that is what Dr Anne Aly said only two days ago, and she is not a lone voice. In 2012, the Labor Party Attorney-General Nicola Roxon released an exposure draft of amendments to anti-discrimination law which would have applied section 18C to some 18 so-called protected attributes, including, incredibly, industrial history, political opinion and social origin. How in a free country can we have a debate, if it is impossible to say anything that might offend another person on account of their political opinion? The answer is: if we were to do so, we would not be a free country any more. I am not a great believer in floodgate arguments, but I am bound to say, given that we know where the Labor Party's mind is on this issue and where a future Labor government may take us, the section 18C debate takes on an even more serious and indeed sinister significance.
Coming back to section 18C, as it currently stands, I have explained why the government is moving to remove the words offend, insult and humiliate because they impose an impossible burden upon the freedom of expression, the freedom of speech which, as I say, is a hallmark of a liberal democracy. If there is anyone left in this country who sincerely believes that section 18C should not be reformed, let them ask themselves this question: what kind of 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 and opinions. Yet the one thing a free society must never do is to censor the expression of ideas and opinions. Anyone who is prepared to do so, in the name of whatever other value, cannot pretend to be a believe in freedom of speech.
The amendments the government will move will ensure that Australia is better compliant with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. Almost every country in the world—some 178 nations—is party to that convention. Article 2 obliges the states party to 'prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation'. How revealing is it that none of the opposition speakers against this bill have been able to point to a single country whose domestic law contains a provision expressed in the terms of section 18C, prohibiting behaviour merely because it is offensive or insulting? Do you know why? Because there is not one. Not one nation on earth which seeks to protect against racism gives effect to the convention against racial discrimination by the use of that language. Those who foolishly say that this amendment gives a green light to racism need to explain why not a single country in the entire world has a section 18C.
The reforms to section 18C add the word 'harassment' to the word 'intimidate' as prohibited forms of conduct. That does not raise free speech issues. Intimidation and harassment 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—or to harass another person—in another words, to vex, to annoy or to attack them—is to intrude upon the 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 section 18C and, at the same time, to strengthen its antivilification provisions and to remove its anti-free-speech provisions—not inconsistent objectives but complementary ones. (Time expired)
The question is that the bill be now read a second time.
I move government amendment (1) on sheet HV208:
(1) Schedule 1, page 3 (after line 25), after item 4, insert:
4A Before subsection 18C(3)
Insert:
(2C) For the purposes of subsection (1), if an act done by a person consists of:
(a) making a statement; or
(b) making a comment; or
(c) making a remark;
(whether orally, in a document or in any other way), then the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass another person, even if the statement, comment or remark is not made in the presence of the other person.
(2D) For the purposes of subsection (1), if an act done by a person consists of:
(a) making a statement; or
(b) making a comment; or
(c) making a remark;
(whether orally, in a document or in any other way), then the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass a group of people, even if the statement, comment or remark is not made in the presence of one or more members of that group.
The purpose of this amendment is to clarify the meanings of the words 'intimidate' and 'harass' in section 18C as it would appear, assuming the bill is passed. The bill proposes to expand the meanings in two ways. In the first place, there is within the bill an expanded meaning given to the term 'harass' so that it is clear that a single act may constitute harassment and that it is not necessary for there to be a multiplicity or series of acts for the prohibition against harassment to be violated. That, of course, depends on the circumstances of the particular case.
This amendment adds a further clarifying definition to the words 'intimidate' and 'harass' by making it clear that those prohibitions may be violated even if the statement, comment or remark said to constitute intimidation or harassment is not made in the presence of the other person. There are many circumstances which we can envisage where conduct may be intimidating or constitute harassment even though it is not made face to face. An obvious example is stalking a person through social media and uttering intimidating or harassing remarks through social media. Another example would be delivering documents or letters through the mail or sending an email to a person which contained intimidating or harassing conduct.
To put the matter beyond doubt, this amendment makes it clear that conduct of that kind and indeed any conduct not in the presence of the person who is the victim which would otherwise constitute harassment or intimidation does constitute harassment or intimidation, notwithstanding that it was not made in the presence of the victim.
Attorney, with respect to the redefinition—and I call it that because it extends the dictionary definition of 'harass', because you are referring to it as a single instance rather than multiple instances, which is common across most of the definitions—there is also a reference, as I understand it, and please correct me if I am wrong, such that someone can be harassed even if they are unaware of the actual act itself. Is my understanding of that correct?
I am not seeing that, Senator Bernardi. I should make it clear that that part of the definition is already in the bill. It is not part of the government amendment that I am moving now. But just to clarify the point, and to go to the section of the bill to which you refer, the reason that amendment was made is that there is in fact some ambiguity both in the case law and in the dictionary definition of whether harassment requires more than one act. In the Macquarie Dictionary, the word 'harassment' is defined exclusively in terms of a series or multiplicity of acts, but in the Oxford English Dictionary, the word 'harassment' is defined in at least one of its senses as conduct which might be constituted by a single act. The same is the case in the case law. That is why we have clarified the definition. But in relation to the specific question you asked, I am not aware of the genesis of that proposition.
When you are referring to the genesis of the proposition, I have been advised that in respect of your amendment for 'harass' in regard to the bill, someone can still claim or lodge a claim for being harassed even though they were unaware of the actions until some time subsequent, so it did not directly impact upon them. Is this correct?
I am always a bit cautious about dealing with hypothetical cases in a parliamentary debate. However, it is certainly not the intention of the definition of 'harass' or, indeed, 'intimidate' that the government has included to include conduct of the kind that you refer to. So that harassment according to its ordinary speech meaning—which is as the explanatory memorandum explains, and subject to the two clarifying definitional amendments to which I have referred—I would have thought requires knowledge by the victim of the harassment of the fact of the harassment taking place.
To facilitate the committee stage while Senator Bernardi is on the phone—he may still have further questions—I can indicate briefly, and consistent with the comments of Labor senators during the second reading debate and indeed our amendment with respect to schedule 1, which we are yet to come to, that Labor opposes all changes to section 18C of the Racial Discrimination Act, including the offence of harassment. This amendment cannot cure the defects in the government's approach to watering down the longstanding protections against racial hate speech.
I indicate that the Greens, as we have consistently said over a long period of time, do not support any changes to section 18C of the Racial Discrimination Act, and, consistent with that position, we will not be supporting any of the amendments that the government is moving to its own amendment bill that itself seeks to amend section 18C. In doing so, we will maintain absolute consistency in our view that there has been no case made by the government for a change to section 18C, none whatsoever, despite lengthy and at times acrimonious debate in this place and the broader Australian community. We have listened to multicultural Australia. We will stand shoulder to shoulder with them. They have asked us to support retaining section 18C precisely as it is currently worded. On that basis we will be opposing this amendment.
Attorney-General, can you explain why the word 'harass' is now to be included where previously it was not. Can you comment on or explain or confirm the fact that the inclusion of harassment and intimidation refers to the desire of the person accused of harassing and intimidating to actually have an impact on the behaviour of the person against whom the harassment and/or the intimidation has been levelled, in contrast to offend or to insult, which is more associated, as I understand it, with the offence to the person but without having an effect on the behaviour or the daily activity of the person who would be the subject of the offence or the intimidation.
Senator Back, the simple answer to the first part of your question is: because the inclusion of the word 'harass', which is a grievous shortcoming in section 18C as it currently stands, is intended to overcome that shortcoming. The concept of harassment, which is very commonly used in antidiscrimination statutes, both in Australia and overseas, captures the notion of conduct which impinges on a person in an unwelcome manner so as to limit or restrict their freedom. It is in a sense broader than 'intimidate', because the concept of intimidation involves causing fear in the person to whom it is directed. It is possible to imagine conduct that constitutes harassment but does not constitute intimidation, because not every person who is harassed is made fearful, but that does not mean that their freedom, their amenity, their life is not in some way vexed or annoyed or a nuisance is made to them by the conduct concerned.
In relation to your second question, Senator Back, it is not an element of this provision that the offender, the person whose conduct is prohibited, has any particular motive. There is no requirement, as in the criminal law, of a guilty mind, as it were. There is no requirement of malice. There is no requirement that the conduct be other than conduct which meets the definitions of 'intimidate' or 'harass'. But the reaction of the person who is the victim—and this goes, so far as 'harassment' is concerned, in part to Senator Bernardi's question—is relevant, so that, if a person, for example, were oblivious to or unaware of conduct, it would be difficult to see how that were harassing if it had no effect on them, or intimidatory if it did not cause fear in their mind.
Anyway, the overall answer to your question is: we are trying to bring this statute more closely into conformity with discrimination law best practice, with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. Section 18C, regardless of the rhetorical claims made by those who oppose what the government is trying to do, does not do that. These amendments make section 18C a more fit, suitable and better expressed protection against racism.
Minister, in your second reading speech you made the observation that there is no other jurisdiction in the world that has legislation at the moment equivalent to 18C. Could you explain to the chamber what protections there are in other jurisdictions equivalent to our own that give the right of freedom of speech whilst at the same time protecting those who might otherwise be harassed and/or intimidated?
Senator, I must confess to you that I am not familiar with the anti-racial discrimination laws of all 178 states party to the convention. But I can say that there is none which deals with the issue the way section 18C does. The concept of intimidation, the concept of harassment and the concept of vilification are the core concepts in legislation of this kind, which is why the government has adopted them.
Attorney, I just want to go back to the clauses in your amendment. It says:
… the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass another person, even if the statement, comment or remark is not made in the presence of the other person.
How can you be harassing someone if you are not in contact with them or in the presence of them?
That is why we are using the expression 'in the presence of'. The example I gave in introducing the amendment was the use of social media as a tool of harassment. We are well familiar with Twitter trolls, for example. We are well familiar with people who send intimidating or harassing text messages. That could very easily constitute harassment, even though not made in the presence of the victim.
Senator Brandis, I apologise in advance if you or anyone else in the chamber had to endure my presentation earlier, on the second reading, but I will take a little bit of time to lay down the basis for my question, and I will value your comments.
I have five or six matters, but I will deal with them one at a time. My first area of interest is to understand what changes will occur as a result of these amendments to the process. I might just set the scene. I spoke earlier, as did a number of other speakers, with respect to the QUT issue, where, as you know, there were three students who became entangled in the process over a period of time. It would appear to me—and you may contradict me—as if there were an absence of natural justice in some aspects of how that particular case was managed. In particular, it would seem that there was a long period of time where at least one of the students, and perhaps all of them, was not even aware that the process was in train, thereby of course denying them any ability they may have had, with a contemporary memory, to be able to, for want of a better term, defend themselves, or at least give instructions to those who might provide them with professional advice.
As it went on, it is said that they received pro bono assistance from legal identities in the process. Quotes have been made that, had they needed to engage legal assistance, the cost of such legal support might have been greater than $10,000 per person. As I said earlier, I found, based on my experiences in life in dealing with lawyers—and I do not want to reflect adversely on lawyers; I am surrounded, it would seem—
Why?
Or vets! The fact of the matter is: that seemed to be on the light side. So, if it were a matter that was complex and protracted, I would think that the cost burden on an individual, in this case a student, could have been substantially higher, perhaps even in the scope of $20,000 to $30,000.
In addition to that, we had the costs that would have been borne in this case, I suspect, by the educational facility, the QUT. They no doubt would have incurred costs. I am sure that they looked at their own position as to whether there may have been some contribution on their part to what appeared to be an area that was, for want of a better term, segregated—in this case, facilities at the university that were not available for use by these three students, at least.
We had the Human Rights Commission involved. Obviously, they had a role to play. There is absolutely no doubt that. if one were able to make a cost assumption about their contribution. we could find ourselves in the scope of between $100,000 and $200,000 to deal with a matter that, even if it had been upheld, would seem to have been somewhat on the trivial end, somewhat on the lighter end, in terms of a question that needed to be answered.
When you add to that, Attorney, the human cost to these three students and, I expect, their families—these are young people, so their parents, their brothers and sisters, and partners, if they have been blessed in life with partners—the stress and distress, the fear, would be quite significant. We know of course that they could not help but suffer some reputational damage. I made the point earlier that in decades to come, when fellow students or alumni are reminded of their identities, they will not be remembered for their athletic prowess or their intellect; they will be remembered as being the students involved in this particular incident. I am sure that prospective employers would reflect upon the circumstances that gave rise to their dilemma up when they consider them for employment or some form of appointment.
The statement was made, I think, by one of the students, that the process itself was a punishment. They had to endure this for a terribly long period of time. This all played out eventually in a very public way. I cannot imagine the stress and turmoil in their lives, and the distraction, as they went ahead and battled this. On top of all that, as a matter of expediency, as often happens in civil cases, they settled. They paid $5,000, which, for all the students I know, would mean the sale of a liver, an arm or a leg for them to be able to fund that sort of settlement.
So, all in all, Attorney, we have hundreds of thousands of dollars expended, a great deal of it from the public purse. Important resources, like those of the Human Rights Commission, were distracted in these protracted and otherwise seemingly trivial issues. There were lawyers representing them pro bono, so there is a cost involved in that—we all know there is no such thing as a free lunch. I am sure that I have missed four or five other features.
I am sorry that I have spent so much time laying the framework for that, but it does lead me to the question. Without going to the substantive adjustments here to the language, Attorney, are you able to reflect upon what the changes to process might be, notwithstanding all other things, that will to some extent mitigate or help us to avoid circumstances like the QUT case into the future?
Yes, Senator O'Sullivan, I can. We are actually not up to the process amendments yet, but now is as good a time as any to address the issue that you raise.
May I say at the outset that, when the history of freedom in Australia is written, the QUT students will be remembered as heroes. These young men will be remembered as heroes, and their legal representatives, led by my esteemed colleague from the Queensland bar Tony Morris QC will also be remembered as Australian heroes—just as the people who persecuted them, like Cindy Prior, will go down in history as villains.
Senator O'Sullivan, the purpose of schedule 2 of the bill, which we have not yet dealt with but it is appropriate as well to speak of in response to your question, is to avoid the persecution which the QUT students suffered and bravely stared down. Senator, you quoted the remark, 'The process is the punishment.' One of the problems with the Human Rights Commission, which, by the way, it itself in part acknowledges, is that its processes are too complex, and there are too few opportunities for the commission and, in particular, for the president to intervene at an early stage of a complaint to terminate the complaint if it is not evidently meritorious. That is one of the main purposes of the schedule 2 amendments, and in saying so I want to acknowledge Professor Triggs' contribution to the government's thinking. In drafting these amendments, we did not agree on every single thing, but in relation to the process amendments we agreed on the vast majority of the measures the government proposes.
Senator O'Sullivan, nobody can know the psychological cost to teenagers of being subjected to that kind of treatment. Ironically, they were the people who were harassed. They were the people who were harassed. They were the people who were, at least at one stage of the proceedings, humiliated. They were the ones who were the subject of the vile and false allegation that they were racist when they are entirely innocent.
It makes my gorge rise, I must say, to stand in a chamber like this and see parties of the Left mock victims the way they mock the QUT students, who richly deserve to be named Australians of the year, as did Tony Morris QC. Senator O'Sullivan, as to the cost, Mr Morris and those who instructed him did, in the fine traditions of the legal profession at its best, donate their services to fight the good fight for this important cause. But for their generosity and their professional benevolence, the cost to a person in the position of the QUT students, facing a case fought all the way to the Federal Court, would have been many tens of thousands of dollars. I am not quite sure how many hearing days it involved, but the process proceeded over, altogether, more than two years, I believe. For the cost in legal fees alone of a proceeding that long, I dare say that there would not have been any change out of a six-figure sum. So there is the psychological cost to these young men, and there is the potential cost that, but for the generosity of Mr Morris and those who instructed him, they or their parents would have been obliged to incur.
Because the process can be the punishment, we are amending, by schedule 2 of the bill, the Human Rights Commission Act to allow for early intervention at the threshold by the president to terminate unmeritorious or hopeless complaints. We are limiting the capacity of unmeritorious complainants who want to game the system, to use the courts as a vehicle to try and game the system, to try and extort a financial settlement out of a person against whom a complaint has been made. There are various other procedural reforms as well to ensure that there is a timely resolution of complaints, that there is a swift dismissal of unmeritorious complaints and that there are strict natural justice obligations that do not exist as thoroughly as they ought to in the act as it stands at the moment.
So, Senator O'Sullivan, I hope that addresses the issues that you had in mind. You are a scholarly man, I know, Senator O'Sullivan, so you would be well familiar with Franz Kafka's novel The Trial, which is all about that proposition that subjecting a person to a vexatious and long legal or administrative process can itself be punitive. How ironic is it that it is the very institution in our society designed to uphold and vindicate human rights that has been used by vexatious people as a vehicle to oppress and deny the human rights of innocent respondents? As a result of the government amendments of this bill, which I hope will be passed through the parliament tonight, the vicious and vexatious use of the Human Rights Commission by such people will be much more difficult, if not impossible.
I want to come back to what the Attorney said earlier in reference to the Oxford dictionary. I managed to have the dictionary definition of 'harass' here. It says that 'harass', the verb, means 'subject to aggressive pressure or intimidation'—we are not dealing with intimidation. Then 1.1 is 'to make repeated small-scale attacks'. I come back to this point, Attorney. I accept your explanation about not being present in dealing with social media and electronic communications; however, I am struggling with the concept of 'harass' in the singular. All the dictionaries that I have consulted make it quite plain that it is about repeated attacks or ongoing harassment. I seek comfort because, at the moment, I am struggling to support this in the event that someone puts up a single tweet or a single Facebook post or sends a single email or there is a single instance that someone finds annoying, and that constitutes harassment under the definition or under the amendment that you are proposing in this bill.
I did consult the Oxford English Dictionary, and one of the senses given—there are several—allows for a single act. But, you are right, Senator Bernardi, that the most common use of the word 'harassment' does contemplate a multiplicity of acts, and that is the only way in which the word is defined in the Macquarie Dictionary, so the lexicographers have a difference about this. In the case law, most of the case law suggests a multiplicity of acts, but there is at least one decision, a case in the Federal Court called Hall v Sheiban in 1989, in which one of the judges suggested that a single act in certain circumstances could constitute harassment. If the lexicographers cannot agree and the judiciary cannot agree, who are we, mere senators, to resolve the issue?
That is why, Senator Bernardi, the government is inserting this amendment: to put the question beyond doubt, to give the word 'harass' an extended meaning, if there is any doubt about it, so that, under the extended definition that this amendment provides for, the most normal meaning of the word 'harass'—that is, a series or multiplicity of acts—would constitute harassment, but a single act could constitute harassment as well.
Thank you, Attorney. Wouldn't it be simpler to have your definition of harassment but have it constituting multiple acts and therefore remove any ambiguity?
Senator Bernardi, there is no ambiguity because this subsection makes it perfectly clear. If I may read it to you and read it onto the record in case there are people following this debate, we would insert a new section 2B into section 18C so that it would now read:
For the purposes of subsection (1)—
which is the head provision—
an act may be:
(a) a single isolated act; or
(b) one of a series of acts; or
(c) one of a group of related acts.
Now, that actually removes any ambiguity whatsoever and gives the word 'harassment' its widest connotation.
We obviously have different views about ambiguity. In the common parlance and the acceptance from most of the dictionary definitions as well as, I think, the reasonable man test that you are also trying to change into 18C—or the reasonable person test, for risk of causing offence—'harass' means multiple instances. You have cited one court case from 1989 in which a Federal Court judge found a single instance. Wouldn't it be much more prudent to use the common and accepted understanding of what 'harass' is rather than open it up to claims where a single Facebook post, a single tweet or a single comment could be claimed to be harassment and subject the individual who had said or written those things to the process of 18C, which is deleterious?
No, it would not be simpler. The way courts read statutes is that, where a statutory definition is given as we propose to give it here, the statutory definition prevails over the dictionary definition. If it be the case that there is no doubt that in ordinary speech 'harassment' means a multiplicity of acts then that ordinary-language meaning yields to the explicit statutory definition in proposed subsection 2C. In this case, as I have already said a couple of times now, the dictionaries themselves define the word 'harassment' in both senses and the case law is also divided on the question. Where the dictionaries are divided on the question and the case law is divided on the question, the sensible thing, it seems to me, is to put it beyond doubt by a very simple and clearly worded amendment which makes it plain that either a single act or a series of acts can constitute 'harassment', and that is the way the courts would read the provision.
Thank you, Attorney. I will not delay the Senate any longer. We are going to disagree on this. In the event that this amendment is successful, I will then be moving a subsequent amendment to change the understanding of 'harass' to mean more than a single instance.
I would like to ask the Attorney-General about the three inquiries which preceded the introduction of the original law in 1994 by the then Attorney-General, Michael Lavarch, and which we are seeking to amend today. I wanted to check my understanding of what it was that those three inquiries recommended and how the law as it stands today is consistent or, in fact, not consistent with what those laws recommended. I am indebted to the member for Goldstein, Tim Wilson, for my understanding of this issue, but I will seek your views on whether this is correct.
Mr Wilson wrote in an article for The Australian newspaper on 9 November last year that, in fact, the recommendations of those three inquiries, including the royal commission, were not reflected in the law that was subsequently introduced and passed by the parliament. In support of his view he cites the bills digest produced by the Parliamentary Library into the bill. It says:
… the Racial Hatred Bill 1994 is in some aspects completely contrary to the recommendations of these three reports.
Attorney-General, in your understanding of what those reports recommended and what the parliament subsequently adopted, is the law consistent with what they recommended? If it is not, in which way is it not consistent?
That is a very good question, if I may say so, Senator Paterson. You are right and the member for Goldstein, Mr Wilson, is right as well. When section 18C was inserted into the Racial Discrimination Act by the 1995 amendments, those amendments themselves were designed to give effect to the recommendations of an inquiry conducted by what was then called the Human Rights and Equal Opportunity Commission, which was the predecessor body of the Australian Human Rights Commission. That inquiry was called the National Inquiry into Racist Violence. There had been two earlier inquiries which touched upon the matter. One was the Royal Commission into Aboriginal Deaths in Custody. There was a third inquiry as well, the name of which I do not quite recall. But there were three. But the immediate inquiry, whose findings were specifically adopted by the amendments to the Racial Discrimination Act in 1995, was the Human Rights and Equal Opportunity Commission's inquiry entitled National Inquiry into Racist Violence, and that inquiry, as did the other two, specifically recommended that the word 'harass' be included as one of the species of prohibited conduct. It has never been explained why that recommendation was not adopted by the Keating government given that the purpose of part 2A of the Racial Discrimination Act, which includes section 18C, was explicitly, as Mr Lavarch, the then Attorney-General, said in his second reading speech, designed to give effect to the recommendations of the HREOC National Inquiry into Racist Violence.
But I must say that anyone who says—and we have heard from many opposition and Greens speakers in this debate—they do not want section 18C changed, whatever else they may be saying, is necessarily saying they do not want racial harassment to be prohibited in Australia. They do not want to give effect, albeit belatedly, to the recommendations of the Human Rights and Equal Opportunity Commission's National Inquiry into Racist Violence. The government does want to do that, and I think it is a disgrace that others who denounce those who are promoting this bill as seeking to encourage racism of all things try to prevent us reforming the bill to give effect to the findings of the National Inquiry into Racist Violence.
I have a related follow-up question. I understand that the person who conducted the inquiry on behalf of the then Human Rights and Equal Opportunity Commission into racist violence was Irene Moss. She was recently interviewed by The Australian newspaper journalist Chris Merritt, who has followed this issue with great interest and with great accuracy, in my view. In his interview with Irene Moss, she told him that in fact her view and the view of the inquiry was that it would be a bad idea to go down that route of preventing mere offence and insult, because that could lead to the law being applied in a way it was not intended and being applied in a broader way than was intended, and that it may end up capturing conduct that was not in fact intended. She reiterated her view from the early 1990s again today, saying that she believed her original view has been proven correct by the application of the law in the courts, particularly in recent cases, and that she was right then to warn against the adoption of a law which sought to limit offence based merely on offence and insulting conduct.
One of the primary instigators of this original law has warned against specifically the route the law went down. She has since said that all her fears about this law have come true and has suggested that we revisit this law and reflect its original intentions. Why is it, in your view, that many people have said in this debate that only those who want to unleash racism are in favour of changing this law? I presume they are not referring to Irene Moss, and I presume they do believe that Irene Moss wants to unleash racism.
I suspect those claims have been made in this debate because of dishonesty and the dishonesty of those who have made the claims and because of the opportunism of those who have made the claims. They are certainly not the truth.
Senator Paterson, you are right to say that Irene Moss, a former Race Discrimination Commissioner, was in fact the author of the Report of the National Inquiry into Racist Violence in Australia. And you are right when you say that she did make that recommendation, and she has made the observations that you have quoted. By the way, she is not alone among people, many of whom would be regarded as inhabiting the left of the political spectrum, who have expressed the view that the removal of 'offend' and 'insult' and the insertion of 'harassment' is a good thing. Those people include Warren Mundine. They include the Hon. Jim Spigelman, a former Chief Justice of New South Wales and at one time the principal private secretary to Mr Gough Whitlam. They include Mr Paul Howes. They include Professor George Williams of the University of New South Wales, a former Labor Party preselection candidate and a well-known constitutional scholar and commentator. They include the Hon. Ron Sackville, former judge of the Federal Court. They include the journalist David Marr. They include the editorial writers of The Sydney Morning Herald, who have also expressed that opinion. They include the Australian Law Reform Commission, which in its report on traditional rights and freedoms, delivered in December 2015, on page 119, had this to say about section 18C of the Racial Discrimination Act:
… it appears that pt IIA of the RDA, of which s 18C forms a part, would benefit from more thorough review in relation to freedom of speech.
In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. The provision appears broader than is required under international law to prohibit the advocacy of racial hatred and broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.
That was the opinion of the Australian Law Reform Commission, and its chair, Professor Rosalind Croucher, who in that particular reference was assisted by the Hon. John Middleton, a much respected judge of the Federal Court of Australia, and Emeritus Professor Suri Ratnapala of the TC Beirne School of Law at the University of Queensland. And of course we had in an interview with Fran Kelly last November, even the president of the Human Rights Commission, Professor Gillian Triggs, observing that it was appropriate to review and strengthen section 18C. When I quoted her in the Senate hearing last Friday, there were some unsavoury interjections from certain Labor and Greens senators—
That's hard to believe!
Hard to believe!—until Professor Triggs said; 'What Senator Brandis has just said is absolutely correct. I did say that, and that is my view.' If you want to make the case that Warren Mundine is a racist, that Jim Spigelman is a racist, that George Williams is racist, that Rosalind Croucher is a racist, that Gillian Triggs is a racist, that David Marr is a racist, that The Sydney Morning Herald is a racist newspaper and that the Australian Law Reform Commission is a racist organ, as those on the other side of this debate do, go right ahead. But those are the people who have lined up on the government's side of this argument.
That is the lamest strawman argument I have heard since I was elected into this place, which is a fair while ago, and that is really saying something. What a load of absolute tosh we are listening to from the Attorney-General this evening. He reads from the Australian Law Reform Commission report a lengthy passage which does not call in any way for section 18C of the Racial Discrimination Act to be changed. Not one word of the passage the Attorney read out is a call for change or an opinion that it ought to be changed.
He quotes Professor Triggs quite accurately, saying she wanted to review 18C and strengthen it, which is emphatically not what this government is proposing to do with the amendments that are currently before the chamber. He is quoting Professor Triggs accurately, but in fact he is not benefiting his argument in any way whatsoever by doing so. I have formed the view that if we are going to have a filibuster from the government, which is clearly what is going on in here, then I have a few things I would like to place on the record.
I want to start by talking about the interactions between lawyers representing The Australian and the late Bill Leak and the Human Rights Commission, during the Human Rights Commission's good-faith attempt to settle that matter expeditiously, which was met at every turn by the legal representatives of The Australian and Mr Leak with obfuscation, delay and aggression.
Clearly what was going on here was that key figures at The Australianand I presume with the acquiescence of Mr Leak—made a decision very early on that they were going to use the complaint that somebody else had submitted to the Human Rights Commission as a weapon not only in their ongoing campaign against section 18C of the Racial Discrimination Act but in the ongoing vendetta that was being conducted by The Australian and Mr Leak against the Human Rights Commission and specifically against Professor Gillian Triggs. It is not in any way inaccurate to suggest that the Human Rights Commission effectively begged The Australian and Mr Leak to submit a section 18D defence. Senator Paterson can smirk all he likes, but the facts are the facts.
Senator Paterson is a lot smarter than you.
The Attorney can loll around superciliously in his chair all he likes, but the facts are the facts and they are on the record in black and white. They are loud and clear. The facts are that the commission twice wrote to the legal representatives of The Australian and Mr Leak and twice asked for a submission to the Human Rights Commission from the legal representatives of The Australian and Mr Leak and on behalf of The Australian and Mr Leak in regards to a section 18D defence.
In fact, when there was reference to section 18D in a communication from the lawyers of The Australian to the Human Rights Commission, the commission wrote to the legal representatives of The Australian and Mr Leak and asked whether that could be taken to be a submission in regards to section 18D. The legal representatives of The Australian and Mr Leak wrote back to the commission:
… we have made no such “statements”.
It goes on to say:
You ask us to—
and this is in quotes because it quotes the previous communication from the commission—
“provide a written submission from Mr Leak covering [a number of specified] points and any other points he would like to make, so that they can be considered by the Commission as part of [your] inquiry into this matter”. We confirm that Mr Leak does not intend to make any submission to your inquiry, whether in writing or otherwise.
There it is in black and white. Despite being asked twice to make a submission on section 18D, the legal representatives of Mr Leak and The Australian refused to do so.
You have to ask yourself: why did they refuse to do so? The answer is blindingly obvious. They wanted to run a vendetta against the Human Rights Commission, because of course they had already submitted to the commission that in their view—a spurious view though it was—the Human Rights Commission ought not hear the complaint against Mr Leak and it should be heard by an independent person. That was the view expressed by the legal representatives of The Australian and Mr Leak. That had no merit and the commission quite rightly, in a very lengthy and considered response, said that they had considered that submission and determined that in fact they were the appropriate body to hear it and the accusation of apprehended bias that was made was a complete load of rubbish. Just to be clear, that last phrase is me paraphrasing the commission. Those are not the words the commission used.
But make no mistake there was a vendetta being run. There was a murky, nasty, aggressive campaign being run by The Australian and Mr Leak against the Human Rights Commission and Professor Gillian Triggs. It should be named up, and I am naming it up here tonight. They got overtaken in that vendetta by their desire to continue their campaign and that is why they refused to make a section 18D submission. Professor Triggs has been very clear—and I will paraphrase her here—in saying that, if Mr Leak had made a section 18D submission, it is very likely that the commission would have acted to immediately terminate that matter. Of course it is blindingly obvious that Mr Leak and The Australian had a section 18D defence in regards to the cartoon that was the subject of the complaint. It is blindingly obvious that Mr Leak—
Senator Brandis interjecting—
You will get your chance in a minute, Attorney. I have got a lot more to say yet, mate. I have another seven minutes, so you sit quietly there, Attorney. You will get your chance in a minute. It was blindingly obvious to any independent and reasonable person watching what was going on that The Australian and Mr Leak were more interested in running their vendetta against the commission and Professor Triggs than they were in settling that matter, and that means that all of the arguments that we have heard about how terrible a trauma this whole thing was for people at The Australian and Mr Leak are premised on marshmallows, because they could have submitted on section 18D at any time and the overwhelming likelihood would have been that the commission would have acted to dismiss the case.
But they did not, because remember they were using the complaint that was not made by the commission; it was made by another person. The commission had statutory responsibilities to conduct an inquiry in regards to that complaint, and they did that and they did that properly. At all times they encouraged The Australian, Mr Leak and the legal representatives of The Australian and Mr Leak to submit a section 18D defence to the commission but they would not do it because they were more interested in having a fight than they were in settling the matter.
So it is gross hypocrisy for Senator Brandis, Senator Paterson and all the other agents of the IPA in this place to come in here and use this case as any kind of an argument against 18C—for a start. It is also rampant hypocrisy for Senator Brandis, Senator Paterson and any of the other agents of the IPA in this place to come in here and use the Leak case as an argument for reform of the commission's processes. I agree that there are actually other cases that do at least constitute an argument for reform of the commission's processes. But not the Leak case—that is a spurious argument because it is blindingly obvious that neither The Australian nor Mr Leak had any interest whatsoever in settling that matter. They were spoiling for a fight. The whole raison d'etre of The Australian in recent times has been to run a vicious, vindictive, appalling campaign against the Human Rights Commission, against Professor Triggs and against section 18C of the RDA. Make no mistake, that was their motivation here. They did not want to settle this matter, they wanted to prolong it because they thought it suited the vendetta and the campaign they were running.
Senator McKim, could you resume your seat. Senator Bernardi on a point of order.
I am just going to draw a point of order on relevance. This is completely irrelevant to the amendment that we are discussing.
The TEMPORARY CHAIR: There is no point of order.
We have heard ad nauseam the arguments from Senator Brandis, Senator Macdonald, Senator Paterson—at nauseating length—and Senator Abetz. They are all seeking to use the Leak case as an argument for reform of 18C, as an argument for reform of the processes of the Human Rights Commission. Those arguments are spurious. They are not based on a reasonable observation of the facts of the matter regarding the Leak case. The commission was falling over itself to seek a submission from Mr Leak, from The Australianor from the legal representatives of Mr Leak and The Australianin regard to 18D. There was a clear, unambiguous defence under 18D—
Senator Bernardi interjecting—
It had everything to do with 18D.
Senator Bernardi interjecting—
I will take that interjection even though I did not hear it—it was a bit of a mumble—
Senator Bernardi interjecting—
You can just mumble away like Bill the Steam Shovel over there all you like. It does not worry me, because what I am doing is reading the facts into the Hansard so that anyone who is listening to this debate, anyone who might read the Hansard in the future, knows the facts. And the facts of the matter are that the legal representatives of Mr Leak and The Australian steadfastly refused to make an 18D submission to the Human Rights Commission. The president of the commission, Professor Triggs, has given evidence to the Legal and Constitutional Affairs Committee that, had such a submission been made, it was highly likely that the commission would have moved immediately to dismiss the matter. Make no mistake, Mr Leak had an unambiguous defence under section 18D; he just chose not to exercise it—and neither did the Australian.
You always know when Senator McKim is on the ropes, because the volume of the rhetoric gets dialled up and the personal abuse of other senators and the questioning of their motives becomes more and more ugly. Nevertheless, Senator McKim, leaving aside all the personal abuse, venom and vituperation that has fallen from your lips in the last 15 minutes, has it not dawned on you that you have just made an extremely strong case for the government's procedural amendments? To use your words, if it be the case that Mr Leak had a 'clear and unambiguous 18D defence', that it was 'blindingly obvious' that he had a section 18D defence and that Professor Gillian Triggs, the president, was 'virtually begging him to make a submission relying on an 18D defence', which 'would have undoubtedly succeeded', then that is the strongest argument you could possibly make for why there should be, as the government amendments propose, an early termination power vested in the president so that the president does not have to await a joinder of issue between a complainant and a respondent where palpably the respondent's position is meritorious and undoubtedly the respondent's position would be vindicated were the issue to be joined between the complainant and the respondent. If that is the case, as Professor Triggs herself has asked for, there should be an early termination proceeding rather than requiring there to be a joinder of issue between the parties. So in view of the argument you have just made, Senator McKim, no doubt you will be voting for the government's amendments on schedule 2.
I just cannot leave this matter without responding to what the Attorney said. As the Attorney well knows, the Greens have long been on the record supporting many procedural changes to the way the Human Rights Commission functions. In fact, in the report that we made—
What!
It is not my fault if the Attorney-General has not done his homework and read the dissenting report in my name on behalf of the Australian Greens, which was put in to the Human Rights Committee report, which made it very clear that the Greens supported the submissions of the Human Rights Commission to the Human Rights Committee which recommended a number of changes.
So for the Attorney to get up and suggest that the contribution that I have just made is in any way an argument for the entirety of the government's proposed procedural changes is entirely false. The Attorney well knows that many of the changes he is proposing in this legislation are not supported by the Human Rights Commission. The Greens' position will continue to be that we will support the reasonable amendments proposed by the government that are in line with the views of the commission, and that we intend to move our own amendments to the bill currently before the Senate to ensure that the procedural amendments made by this legislation, should it pass, are in fact in line with the wishes of the Human Rights Commission.
The Attorney has fallen flat on his face here. I know he thinks he is the smartest bloke in the room, but the simple fact of the matter is that he is not quite as smart as he thinks he is. His argument, clever though it may have sounded, has no merit whatsoever—and I note that he in no way addressed the substance of my previous contribution, which was, in effect, that neither The Australian nor Mr Leak had any genuine interest in settling the matter that was before the Human Rights Commission expeditiously and that, in fact, to the contrary, they intended to use that complaint, which was put before the Human Rights Commission by another person, as a weapon in their ongoing vendetta against the commission, against Professor Triggs and against section 18C of the Racial Discrimination Act.
I have been listening to this debate tonight and I want to follow on from what Senator Cory Bernardi said and ask about the word 'harass'. I have looked at the dictionary and it says that 'harass' means 'to make repeated small-scale attacks', 'to annoy with repeated attacks' or 'to disturb persistently'. That is from the Macquarie dictionary. Item (2B)(a) of the bill refers to a 'single isolated act'. Senator Brandis, regarding 'a single isolated act', I know you referred to material on the internet and tweets. I am not a legal mind—I do not come from that background—but, if a court makes a decision, it is based on what is actually in law. That means, if it is based on the law of (2B)(a), it must come down to a single isolated act. If there is nothing in the law, then the judge would have to go back to the definition of the word 'harass', which would go back to the definition in the dictionary, which refers to multiple acts. So is it feasible to say, if we legislate it, that the courts will determine it from the point of view of a single act? Is that how the courts will interpret it?
The short answer is yes, assuming this amendment were to be agreed to. The most common meaning of the word 'harass' is, as you rightly say, 'a series of acts' or 'a multiplicity of acts', but there is some doubt about that because there is at least one sense in the Oxford dictionary's definition of the word and there is one judicial decision in Australia, a case called Sheiban, which suggest that a single act may constitute harassment. So there is a degree of ambiguity about whether or not a single act may in particular circumstances constitute harassment.
To avoid, or to clear up, that ambiguity, the purpose of this subsection would be to put it beyond doubt that harassment could be constituted by a single act or by a series of acts—either would do—and a court approaching a particular case in which harassment was alleged would interpret the word 'harassment' in the act according to this subsection so that it could have regard to an act which was a single isolated act or it could have regard to a series of acts. So this broadens to the broadest possible degree what the understanding of 'harassment' could be.
I will go back to the word 'harass' again. People in a heated moment, even on the internet where they respond to something that they have seen, might make a comment or tweet or say something—but it is in the heat of the moment, in reaction to what they may read or see or whatever. But then, if they were to harass, they would do it more than once, so it really becomes vexatious—they are really harassing. So, if someone makes a stupid statement or a comment at any time which could see them taken before the Human Rights Commission through the Racial Discrimination Act, wouldn't it be best, if they are vexatious and continually harass, for it to be looked at under those circumstances rather than just on a single act?
Senator Hanson, it would be. On this definition both would do. A series of acts could constitute harassment or a single act might constitute harassment as well. It all depends on the facts of the particular case.
As I have already agreed with you and with Senator Bernardi, the most normal use of the word harassment does contemplate a series of acts but, as I said before, there is some authority both in the dictionaries and in the case law to suggest that a single act might do. So, the purpose of this amendment is merely to get rid of the ambiguity and make it clear that a single act could constitute harassment or a series of acts could constitute harassment, depending on the facts of the particular case.
The CHAIR: The question is that amendment (1) on sheet HV208 be agreed to.
The opposition opposes schedule 1 in the following terms:
(1) Schedule 1, page 3 (lines 1 to 28), to be opposed.
I will not speak long on this, because I think there is one main point that needs to be highlighted. We have heard lots of flowery language and lots of debate amongst members of the government with each other, but the critical issue here is that the change in this schedule reduces the protections that are afforded to victims of racial discrimination and racial hate speech by narrowing the scope of behaviour that may constitute offending conduct. Labor does not support that narrowing of scope and, by the amendments on the running sheet here, it is clear that the Australian Greens and the Nick Xenophon Team similarly will not support that narrowing.
We could spend hours more listening to this flowery language and debate about the principles of free speech and harassment, but these provisions have stood the test of time, of two decades. They have, as was highlighted earlier, the support, as shown by polling, of 80 per cent of Australians. This esoteric debate amongst members of the government should stop. Senators, in supporting Labor, the Australian Greens and the Nick Xenophon Team in opposing schedule 1, will stop this waste of the Senate's time that has been occurring this evening.
As Senator Collins observed, the terms in which the Labor Party opposes schedule 1 is identical to terms that had been flagged and circulated by the Australian Greens and, for that matter, are identical word for word to terms that had been flagged and circulated by Senator Griff on behalf of the Nick Xenophon Team. This is the crux of the sad, sordid and sorry debate that has been going on in this country for far too long about section 18C of the Racial Discrimination Act. This is the Senate's opportunity to do the right thing. This is the Senate's opportunity to show that collectively we have listened to multicultural Australia and heard the abundant evidence given by multicultural Australia to the human rights committee, which conducted an exhaustive inquiry into section 18C of the Racial Discrimination Act. This is the Senate's opportunity to demonstrate that it has listened loud and clear to the people who have had the courage to stand up and talk about the racism that they have faced in this country. This is the Senate's opportunity, finally, to do the right thing and to end the push, at least for now, to change 18C in any way. This is the Senate's opportunity to stand up and say, 'We collectively refuse to take action that will make it easier to be racist in Australia.'
Make no mistake: no matter what the intent and the motivation of people calling for this change—and I am happy to say I do not think everyone calling for this change genuinely wanted to make it easier to be a racist in Australia, although I am also happy to say I think some did genuinely want to make it easier to be a racist in Australia—the effect of weakening 18C would have been to send a message out into the Australian community that it is now easier to say racist things and be racist in Australia. That is a message that we cannot afford. There would never be a good time to make it easier to be a racist in Australia, but now would have been the worst time of all to make that change.
So the Greens will proudly support this change—alongside the Australian Labor party and the Nick Xenophon Team and potentially alongside others, although they can, of course, speak for themselves—because we want to show that we have listened and that we are standing up for the magnificent, rich tapestry that is multicultural Australia—that tapestry that has underwoven so many beautiful and brilliant things in our community. It is a tapestry that has been a foundation for so much of the infrastructure that has been built in this country. It is a tapestry that enriches the life of every Australian. We so strongly support multiculturalism. It is a fundamental of the Australian way of life. In supporting this change, we will go proudly on the record as supporting those beautiful things and defending the protections that exist in current Australian law against racism.
The Senate trans cript was published up to 22:15 . The remainder of the transcript will be published progressively as it is completed.