Human Rights Committee, Racial Discrimination Act


Peter Khalil: Since entering parliament, I have spoken quite a bit about my experience as an Australian of Egyptian heritage and as one of the first ever African Australians elected to this parliament, alongside my colleague here, the member for Cowan. As Australians, we are part of a wonderful, diverse multicultural society—the best one in the world, actually. The benefits of a multicultural society are something I have promoted with pride throughout my working life. Before coming a member of parliament, I was briefly a Victorian Multicultural Commissioner and an executive director of SBS, both jobs where the remit was really to promote understanding and acceptance of the cultural, linguistic and ethnic diversity of the Australian people. But, more than that, it was about arguing that our multicultural model works so well because we do not just tolerate but embrace diversity. That is the strength of our diversity as a nation. So obviously multiculturalism is dear to my heart.

While this report is notionally on the matter of freedom of speech in Australia, the substance of the report refers to and makes recommendations on the operation of the Racial Discrimination Act, an important legislative function of a multicultural society. I turn to the debate around section 18C of the RDA and, most specifically, to address the suggestion by some that it should be repealed or severely limited. As many in this place will know, this section of the RDA renders unlawful conduct which is likely to offend, insult, humiliate or intimidate people on the basis of their race. This is a civil prohibition only. Section 18C does not create an offence or a crime. No-one can be charged or prosecuted. No criminal punishments can be imposed on those who breach it. Lawsuits under 18C are brought privately by victims, not by the government. It is not enough that a given person subjectively feels offended. In the suggestion that someone has breached 18C, the court must consider whether the relevant conduct is likely to offend, insult, humiliate or intimidate an ordinary and reasonable member of a racial group.

The Prime Minister has said changing the RDA is not on his agenda. We have heard this before. He has had an inclusive rhetoric and has talked about the importance of mutual respect—fine words. But, despite this, dismantling the RDA has remained an absolute obsession of the right wing of both the Liberal Party and the National Party—of the coalition. Meanwhile, Labor has consistently fought to protect the RDA from this ideological assault. The radical right-wing agenda displayed by some members of first the Abbott government and then the Turnbull government not only contradicts some of the rhetoric of the current Prime Minister but goes, I think, against the outcomes of this report, which has found no basis to recommend any changes to section 18C or 18D of the RDA. The recommendation of the committee’s report that there be no change reflects the overwhelming weight of submissions from the public to this inquiry, which were strongly opposed to altering our longstanding protections against racial hate speech.

For over 20 years, section 18C has protected our community against racial hate speech, making it unlawful for a person to insult, humiliate, intimidate or offend someone because of their race or ethnic background. It was introduced as an amendment to the RDA of 1975 in 1994-95 under the Keating government, after several reports and long consultations, including some recommendations arising out of the Royal Commission into Aboriginal Deaths in Custody. I note that section 18C survived 11 years of the Howard coalition government without any proposal for amendment or repeal.

Despite this, the current Prime Minister continues to face a serious split in his own party on the subject of section 18C and those who want—to use the words of Senator Brandis, the Attorney-General—’a right to be bigots’. How remarkable that the first law officer of this country could make such a statement. He is supposed to understand the law. Let me just explain: there is no positive right to be a bigot or a racist. It does not exist. There is a right to freedom of speech and freedom of expression, but with that comes responsibility—a responsibility not to exercise that freedom in a hateful and discriminatory way. He should know better. It is clear that Malcolm Turnbull is not in control of this agenda anymore.

I acknowledge that there are some opponents of 18C who have well intentioned motivations. The protection of freedom of expression is a legitimate consideration, as free speech is essential to our democracy. But I note that, as many other speakers have said, there are protections for members of the media and those truly acting in the public interest, provided by a subsequent section of the act, section 18D. Everyone forgets section 18D in this debate—or at least those on that side forget section 18D. Freedom of speech and freedom from hate speech are balanced in sections 18C and 18D, which have worked well, frankly, for decades. This balance has worked effectively. That is a fact which is rarely spoken about by those right-wingers who remain obsessed with watering down the RDA.

I spoke in my first speech in parliament about what it was like for a kid of a migrant family from Egypt growing up in Australia during the seventies and eighties. Racism was much more overt in those days and was considered acceptable—probably the norm by some. I experienced my fair share directly, as I am sure my colleague would have as well. Some of the things I was called are probably best left unsaid in this chamber; they were that bad. So the catalyst for the RDA and section 18C carries some emotional weight for me, as I know it does for many other Australians. Nobody deserves to endure abuse based on their race or ethnicity, and those who use racial slurs as a weapon in debate deserve to be—must be—held to account. That is what the RDA does; that is what section 18C does. And it has done it so well for decades.

Recommendations 4 to 22 in the report are a variety of proposals for adjustments in the complaints process, improvements to the processes for dealing with complaints, designed to ensure it continues to operate in a streamlined manner. They also promote education of the community around the evils of racism. These are sensible recommendations, so I commend the committee for its recommendations on those matters. I wholeheartedly support the recommendations, because whatever issues and inconsistencies have occurred in the complaints process—and there have been a few of them—have been the fuel that those seeking to unwind 18C have poured on the fire of this concocted debate. It has been, frankly, a concocted debate, and an ideological one.

It is important to note that the RDA is not designed to create litigation; indeed, only a tiny fraction of RDA complaints end up in court. RDA complaints are conciliated with the assistance of the Australian Human Rights Commission, and that conciliation allows victims of racism to work with perpetrators to resolve their dispute in a mutually agreeable manner. The process is confidential and need not involve lawyers. The conciliator does not ‘decide’ anything; the parties are guided towards resolution of the issue themselves. Outcomes can include an apology, change of policy, or compensation as worked out by the parties. The conciliation process works very well, but of course it can be improved, and the committee has made a number of sensible suggestions there.

I ask those in favour of winding back section 18C, or removing it in its entirety, exactly what form of racial hate speech they wish they could use now that section 18C currently prevents them from using. What is it that they want to say that is so important? I have seen racism and hate speech on display up close and personal. It is ugly, it is hateful, it is disturbing and it goes to the core of one’s being as a human being. It brings individuals who use it down and brings the entire society down, and of course it affects the victims. It goes against the basic decency and fairness that should be the foremost factor in our relations with each other. While I have seen the worst of people in this respect, I have also seen the best. Australia is a successful multicultural nation, and most Australians embrace all the wonderful things that come from living in such a diverse population. If you do not believe me, I have to mention my electorate of Wills. It is a very diverse electorate. Sixty per cent of the population come from culturally and linguistically diverse backgrounds.

Prejudice and bigotry are things that Australians en masse abhor and reject. Section 18C of the RDA captures those values very effectively, and on that basis it is important that we maintain 18C in its current form. I welcome this report, as it represents a part victory against those who still think the greatest priority for the Australian government should be legislating to give a green light to racist hate speech in our country. This government is an abject failure in prioritising what is actually important to Australians. I know I speak for my Labor colleagues when I say that our party values multiculturalism and believes that protections against racial hate speech are worth keeping. I hope—it may be a forlorn hope—that the findings of this report will be used by the Prime Minister to kill off attempts to water down 18C and the vital protections it provides. I might say that the Prime Minister should probably heed the advice provided in recommendation 2 of the report, which says:

Recognising the profound impacts of serious forms of racism, the committee recommends that leaders of the Australian community and politicians exercise their freedom of speech to identify and condemn racially hateful and discriminatory speech where it occurs in public.

I hope he will also refer his Attorney-General to that recommendation.

We see no evidence that the Prime Minister will stand up for ethnic communities. If he does not, we will do what we have always done: we will stand up together. We will oppose hate speech and join our voices in a loud chorus to oppose these unnecessary and ideological changes, and we will do so because it makes Australia a better country.