Racial Discrimination Amendment Bill 2014

Senator SESELJA(Australian Capital Territory) (09:40): I hate racism and bigotry. I cannot understand how someone can look at the colour of someone’s skin, their gender or their ethnic background and make broad, sweeping assumptions about their moral virtue, their suitability for a role or whether they should be part of an organisation or grouping. But, unfortunately, the reality is that racism and bigotry have been part of the world in which we live for a very long time. That said, I also know that one of the great things about modern Australia is that, while these kinds of attitudes are still around, they have become increasingly isolated and rare.

There were certainly challenges in growing up here in Canberra for me, coming from a non-English-speaking background and with a name like Zdenko Seselja, but for the most part I did not feel too different. The isolated incidences of bigotry I experienced did hurt, but in a significant way they are memorable because they did not happen all that often. I will come back to that. Mostly what I saw was that my neighbourhood and school community were relatively cohesive, with people of many different backgrounds working hard and getting along pretty well.

 I remember growing up with people both like me and unlike me. There were people from southern Europe, such as the Croatians, Greeks, Italians and Macedonians, and there were my best friends through the years, who came from Malaysia, the US, Sri Lanka and New Zealand. I got to know a refugee family from El Salvador, whom my family welcomed and assisted. I even remember the half-Zambian kid who grew up around the corner and went on to captain the Wallabies. Through growing up with these people, I formed the view as a young boy and then a young man that people should be judged by who they are—the content of their character, if you will—rather than judging them based on where they or their parents might have been born or on the colour of their skin.

Of course, it was not perfect, and there were times that I experienced bigotry. I still clearly remember going off to Croatian lessons and being ridiculed for being different. I remember being called ‘wog’ or ‘dago’. I had much darker skin then, compared to now, and I vividly remember being called ‘black’ as a derogatory term. Most of these instances were just kids being kids, though it did not make them hurt any less.

In considering the merits of section 18C of the Racial Discrimination Act, I have reflected on my experiences as well as the experiences of many others who have gone through much worse than I did. It struck me that this section of the act came into force when I was a teenager. I cannot help but wonder: would it have made any difference to my experience growing up? Could or should the act have been used to help schoolkids like me, who were dealing with bigotry? My answer to these questions is no.

There are a number of reasons for this. Above all, I passionately believe in free speech, even speech which I find offensive. That is central to our democracy. I believe it is an absolutely fundamental right, and it is from the right to life and free speech that all other freedoms flow. And, if free speech really is a fundamental right, then the bar needs to be set very high before a law can outlaw any form of speech. Section 18C in its current form sets the bar too low.

In my maiden speech, I talked about the experiences of my family, particularly of my uncle, who came from the former Yugoslavia where he was imprisoned for exercising his right to freedom of speech and freedom of religion—things that we have to work very hard to guard.

There are some who argue in the context of section 18C, ‘Well, what about defamation? What is the difference between a defamation action and an action under the Racial Discrimination Act?’ In my opinion, the line is clear and significant. A defamation action needs to show that an individual has been damaged by the speech. A person must clearly show that the defamatory statement, to be actionable, has resulted in them being viewed in a lesser light by a reasonable person and that the statement was not true. However, under the Racial Discrimination Act, we have a completely subjective test applying to anyone identifying with a particular ethnicity or nationality—a ‘hurt feelings’ test. This can and does have a particularly chilling effect on free speech. In looking at this issue, I have also considered how different ethnic groups in the past responded to prejudice—not through the law but with humour. Wogs Out of Work and Acropolis Now were some of the responses of southern Europeans to the negative labels that they sometimes received. Well-known Australian comedian Vince Sorrenti has often used, to great effect, this type of humour.

I also make the point in passing that much of the ethnic ribbing that was part of my life growing up was a good natured two-way dig—part of a longstanding Australian irreverent character which most immigrants to this country have adopted and embraced. But, again, sometimes the labels did hurt. But when I consider the question of whether a law like 18C of the Racial Discrimination Act could have been used for me or others growing up—even if I had wanted to—my answer again is no, and that is because, like with many laws of this type, you have to have significant means and ability to bring such a matter to court. That means you get laws being used by activist organisations and lobby groups to score political points, rather than helping real day-to-day vulnerable people. Also, it seems to me that, by encouraging individuals and groups to settle their differences in court over this issue of offensive speech, we further entrench divisions in our community between ethnic and racial groups, rather than creating an atmosphere where we settle our differences with open debate, goodwill and even humour. A law designed to unite, can in fact divide.

History and experience show that you only get meaningful, long-lasting cultural change when it comes through evolving community standards rather than the threat of legal action. Outlawing speech does not stop the bigotry in people’s hearts; it simply pushes it underground. It is better to bring such thoughts to light and have them discredited by rational debate. We only have to look at recent examples in the United States, where free speech is protected in the constitution yet community standards often do the job of dealing with offensive speech. We saw this in the case of Donald Sterling, then owner of the NBA team the LA Clippers, who made highly offensive racially-based comments. The sanction by the public and the other NBA owners was swift and brutal. There was no need for a lawsuit against the behaviour—the community spoke out, and the issue was dealt with. More importantly, in that case the Racial Discrimination Act would not have even applied, as his comments were made privately and were recorded.

Another crucial reason why 18C, as it stands, is an unreasonable restraint to free speech is that it does not deal with the more subtle forms of racism and bigotry that we see. In my opinion, it is this sort of racism that is far more pernicious. Who could forget the South Australian Labor Party running election ads against Liberal candidate Carolyn Habib? The ads simply asked ‘Can you trust Habib?’ Blind Freddy could see that the ad was designed to appeal to an anti-Arab sentiment, but it is subtle enough to never attract the sanction of the law. It is better, in my opinion, to speak out and call this what it is—bigoted—and condemn it and highlight the hypocrisy of those who are putting out bigoted ads while arguing against amendments to the Racial Discrimination Act, rather than to draft a new law to try and deal with a more subtle form of racism.

This was a reform I publicly supported, and, in my maiden speech, I commended the efforts of Senator Brandis and his commitment to free speech. Indeed, for some time the coalition has been making the case for this reform. In August 2012, a year before the election of the coalition government, Tony Abbott said:

Let’s be clear: insulting, humiliating or intimidating others on any grounds, racial or otherwise, is deplorable. It should be everyone’s goal to elevate the standards of public debate, not lower them, and to demonstrate respect rather than disdain for the various components of our community. Still, a “hurt feelings” test is impossible to comply with while maintaining the fearless pursuit of truth which should be the hallmark of a society such as ours.

Then, after the election, the Attorney-General said:

… never again in Australia will we have a situation in which a person may be taken to court for expressing a political opinion. But we know that the government made the decision to put this reform to the side. Through that, I remained consistent in my views believing that this was an important reform to continue to pursue. Then, when Senator Day proposed an alternative compromise for reform of the act that simply struck out the words ‘insult’ and ‘offend’ the then Communications Minister, now Prime Minister Turnbull, said he was ‘very comfortable’ with the proposal and did not foresee ‘any negative impact’.

So it is clear there has been substantial support in this parliament for this reform over the last few years, but we haven’t matched those words with deeds. As the now Prime Minister went on to say about Senator Day’s proposal … the reality is with change like this you’ve got to do it very delicately and you’ve got to bring people along with you.

Well I believe the time to bring people along is now. Section 18C does not unite us; in my opinion, it has the tendency to do just the opposite.

It has been less than a year since the tragic massacre of cartoonists and writers at Charlie Hebdo in France—a massacre that took place because of cartoons and words. The response of many at the time was to lament the horrible murders as part of a physical attack on free speech. As Human Rights Commissioner Tim Wilson made clear at the time, while Charlie Hebdo would likely have been a legal publication in Australia, there is no doubt it would have faced constant legal challenges under the Racial Discrimination Act. Wilson argued:

18C would have been used against Charlie Hebdo because it sets a low bar to restrict free speech. Administratively, 18C also makes it easy to take action; all you need is an aggrieved party and an arguable case.

Wilson went on to say:

The Charlie Hebdo massacre is a tragedy, and it should be a reminder that we need to defend free speech even when speech offends and insults.

Offence and insult are subjective, emotional responses to the actions of others. Individuals can be offended and insulted by just about anything, even when it is not intended. For that reason, a law that prohibits speech that merely offends and insults sets the bar too low. Instilling these principles in law ultimately leads to self-censorship.

So this is not a trivial bit of policy; this matters, and we have seen recently how much it matters.

Reform of Section 18C of the Racial Discrimination Act is a policy that we advocated for before the last election. It is a policy that we took to the election. It is a policy the leadership of the government has spoken about and clearly supported, and it is a policy that I believe should be supported. I support this bill because I believe freedom of speech is one of the centrepieces of our democracy. Without it, we do not have real freedom. I support this bill because I have lived a life where I have occasionally experienced bigotry firsthand, but I know that punitive legal action ultimately will not result in the real lasting cultural change which leads to greater respect. I support this bill because this is what I said I would do when I was elected and it is what the coalition said we would do in opposition and in government. I commend it to the Senate.