Section 18C: A media conference with Mark Dreyfus

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Mark Dreyfus is the Shadow Attorney-General and has faced a media conference dealing with the plans to repeal Section 18C of the Racial Discrimination Act.

Mark Dreyfus

DREYFUS: Yesterday the Attorney-General said “people do have a right to be bigots” and today in the exposure draft of the repeal of important sections of the Racial Discrimination Act, and a new provision that is to be inserted in the Racial Discrimination Act, we see the result of an attitude like that – an Attorney-General who says “people do have the right to be bigots”.

What we’ve seen, in the short time I’ve had to look at this exposure draft of a new provision that’s to be inserted in the Racial Discrimination Act is a provision that is a very substantial watering down of the protections that have served Australians very well to protect them against racist speech for almost 20 years.

Now one should be fooled by what the Attorney-General attempted to say at the press conference he gave this morning. Certainly no one should be fooled into thinking that he has the unanimous support even of his own Party Room. That is clearly not the case.

As I under the position, the Attorney-General has been given permission by his Party Room to release an exposure draft for discussion purposes. And I would invite everybody here to look at what this exposure draft contains within it. The suggestion from the Attorney-General that the proposed amendments will – and I’ll use the Attorney-General’s words “strengthen the Act’s protection against racism” – are blatantly untrue.

What we have here is a new provision. Just to start, all of the provisions have been entirely repealed – so Section 18C is repealed, Section 18D is repealed, as are the companion sections. They are replaced with – and perhaps for completeness, I should say of course the words offend, insult and humiliate, which form an important part of a provision that had been considered by a number of Federal Court judges. That’s all gone.

It’s to be replaced with a prohibition on vilifying another person, that is narrowly defined, and a prohibition on intimidating another person, that is also narrowly defined.

So, just before I go to the exception that is provided in this proposed new provision, it’s possible to see that this is an extremely narrowly defined protection, an extremely narrowly defined prohibition on racist speech, going to the lengths of giving an almost unrecognisable definition to vilify. That’s a term which in ordinary speech is a very broad term. It’s one which most people would understand to mean something like speaking or writing about another person in an abusively disparaging manner. Instead we’re told by this proposed legislation that vilify means only incite hatred against a person.

If I go to the only other element of the proposed prohibition, intimidate is not as I think everyone in this room and everyone understanding how intimidate, or what intimidation might mean in a public context or in a workplace. Generally speaking it means to frighten or overawe someone, particularly if you’re trying to threaten them into doing something that you want them to do.

Instead in this legislation intimidate is only to mean cause, fear of physical harm. Again, a very narrow definition of a well understood term. And that’s what you’re left with, so what the Government is here proposing is a narrowing of a protection that has served Australia very well. It’s served Australia to prevent racist speech for nearly 20 years and replace it with a very, very narrow prohibition indeed.

And if that were not enough, consistently with an Attorney-General who thinks that people do have a right to be bigots, we read in the exception provision which is to replace Section 18 D, this: “This section does not apply to words, sounds, images or writing, spoken, broadcast or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or a scientific matter”.

The requirement that previously appeared in the protection of free speech in Section 18D of reasonableness and good faith is entirely removed and I can tell all present, and anyone listening, that one could drive a truck through that provision.

It is a provision of such breadth that just about anything that might be able to be said in the course of a public discussion of some political or social or cultural matter would come within this exception to the prohibition, meaning that what we’re left with is something of very little meaning.

What the Attorney-General and the Prime Minister need to explain is why. Why they have gone down this path? Why they have chosen to ignore what’s been said to them by more than 150 community and ethnic groups in an open letter to the Government, pleading with the Government not to change this provision which has served Australia very well for almost 20 years?

They have not produced any evidence which in any way supports this dramatic change to the law. They have ignored the way in which complaints are handled under the Racial Discrimination Act, which is that the great bulk of these complaints are handled by a conciliation conducted by the Human Rights Commission which produces satisfactory results in the great bulk of cases. And they have ignored the number of Federal Court decisions which taken together with the statutory provisions, form a body of law that has made it absolutely clear to the Australian community that the provision, Section 18C, is not a prohibition on what some of the judges have called “mere slights”, it’s not a provision which deals with trifling abuse.

It’s a prohibition which is there to prevent serious cases of racial abuse. We’re not talking about any other form of political debate, we’re not talking about any other form of artistic expression. We are dealing here with an existing prohibition on racist speech, on racist abuse and I fear that if this provision comes into effect Australians will no longer have anything like the protections which they have enjoyed for some nearly 20 years and certainly would be left with very little indeed.

I’d invite every single person in Australia who is in any way concerned about racism, and I’d hope that that’s every Australian, to write directly to the Prime Minister and to the Attorney-General telling them what you think of this provision, explaining why it’s not good enough in the twenty-first century in Australia to take away protections against racism. We need a Government that is prepared to say “no” to racism. Not a Government that’s prepared to give a green light to racism which is what this amounts to.
We need to have a message sent loud and clear to the Government that this is not good enough, this is not the vision of twenty-first century Australia that Labor has, it’s not the vision of twenty-first century Australia that I think that most Australians have – an Australia in which racism plays no part.

I’ll just finish with a bit of a demonstration of why I am so concerned. We do have the benefit of a number of published Federal Court judgments over the last several years in which it’s clear to all what kind of speech, what kind of publication is prohibited by Section 18C.

I’d start with Jones v Toben. This was a case brought about the utterances of an infamous Holocaust denier, Dr Frederick Toben, who said things like this, he published statements like this, that “there is serious doubt the Holocaust occurred,” that “it is unlikely that there were homicidal gas chambers at Auschwitz,” that “Jewish people who are offended and challenge Holocaust denial are of limited intelligence.” Now, I’m not going to go on, there were worse statements made by Dr Toben which were the subject of this litigation in the Federal Court. But it would seem to me, and this is what the Government has to explain, is this the kind of speech that is henceforth going to be prohibited by Australian law? It was, it is by Section 18C but if these changes go through it is a matter of very, very serious doubt as to whether that would be prohibited at all because not only is the prohibition very narrowly defined but we now have an exemption, as I said before, that you can drive a truck through.

It was of course Dr Frederick Toben, the infamous Holocaust denier’s position that he said he was engaged in discussion of political or social matters. I’ll go on just to mention a couple of others.

Campbell v Kirstenfeldt, a decision of the Federal Court where an Indigenous woman was able to use Section 18C to protect herself and her family against a neighbour who had waged a campaign of intimidation against her family by constant streams of abuse and insult towards her and her family. I’m not going to repeat the things that he said. Anyone who wants to look at that case can go and do so, but again, we now have, or it’s proposed by this Government, an extraordinary narrow definition of only vilify, which is incite hatred, and only intimidate, which is cause fear of physical harm and if neither of those elements were present in that case brought by Ms Campbell, then she also would not have been entitled to the protection.

And I’ll give a last one also, involving some Holocaust denial and antisemitic statements that’s a case brought by the Hobart Hebrew Congregation against a woman called Olga Scully down in Tasmania. She was restrained by court order under Section 18C from distributing the most vile hate mail and it’s not at all clear that, because again, Ms Scully claimed that she was engaged in the discussion of political and social matters, that that prohibition would any longer exist. It would seem to me that the exemption, which I say again, you could drive a truck through, would mean that there’s very little that is going to be prohibited.

It is for the Government to explain why on earth, in an Australia in the twenty-first century, where we’ve got to work on racism, where we’ve got to say no to racism, where we’ve got, all of us, to co-operate in making sure that racist speech has no part in our society, why on earth would be Government be introducing this provision? And it’s for the Government to explain what impact it would mean given how much narrower it is, given how broad this exception is, what impact it would be on quite a number of the examples that I’ve given and a host of others that could be given. You can all go and look at the Human Rights Commission’s website to see examples of the kind of speech, the kind of racism that has been very successfully prevented and conciliated by the existence of Section 18C and by the conciliation work done by the Human Rights Commission.

JOURNALIST: You haven’t spoken about the Bolt case, whereas the Attorney-General cited it as one of the key reasons for these proposed changes?

DREYFUS: Well, I think we should all forget about Andrew Bolt. It is not evidence to point to a single case. We’ve got some eighteen years of active conciliation work done by the Australian Human Rights Commission, several human rights decisions carefully reasoned, closely reasoned decisions of the Federal Court of Australia in which these provisions have been worked through. No Government should look at a single case as a basis for change to a law which has served Australia as well as this one has and it’s an oddity to me, if not a disgrace, that we have a Government is prepared to proceed on the basis of a single case.

JOURNALIST: Do you believe that the type of people like Toben and Olga Scully and others of their ilk would be emboldened by this?

DREYFUS: I think without a doubt when you’ve got a Government that has talked now for months of watering down these provisions, is pretending quite wrongly, that this is in some way a strengthening of the provisions – it’s not – of course it acts as an encouragement.

You’ve only got to look at the Attorney-General’s comment yesterday that people have a right to be bigots. Now that’s the attitude of this Government, it’s a Government that’s not prepared to listen to community views, it’s a Government that’s not seemingly caring about the effect of racist speech on people who are its victims. I’d invite everybody to consider the position of those who are the subjects of racist speech, to consider how their rights to participate fully in Australian society are hampered by this kind of speech, consider the psychological harm because it’s very, very well-documented that it’s not just some physical issue here, there is deep psychological harm caused to people who are the subject of racist speech. That’s the kind of effects that we are trying to prevent. And to go back to your question, of course proposing this form of provision to replace a protection that’s been in Australian law for almost twenty years, of course it will act as an encouragement to those small numbers of people in our society who want to be bigoted.

JOURNALIST: What chance has this got of getting through the Parliament do you think?

DREYFUS: Well that’s clearly a matter that’s going to be discussed by all parties other than the Liberal and National party. We’ve already had an indication that some members of the Liberal party oppose any change to Section 18C, one of those Members has indicated that he might be prepared to cross the floor and I think questions about the attitudes of other parties should be directed to other parties but I would be confident that all right-thinking Australians, including right-thinking Members of this Parliament will be opposed to the change that’s been proposed here today by the Attorney-General.

JOURNALIST: One of the other things the Exposure Draft does is bring back the community standards test, the ordinary reasonable person test. Is that a good idea? Is that a good move?

DREYFUS: The provision before Section 18C enabled judges, and of course it’s the judge’s view of what would be the effect, it’s a sort of factual finding by the judge of what would be the effect of racist speech. That judge’s view is still going to be there so it’s still going to determine what standard is going to be applied. I think it’s one of those ones where you’d have to wait to see how it worked through in terms of what judicial decisions are made but ti appears, as with the other narrowings that I’ve mentioned, to be a narrowing of the width of the provision that presently exists as a protection.

I don’t think still that reference to standards of any reasonable member of the Australian community compared with standards of a particular group in fact mark such a dramatic change from the way judges have looked at this before but in any event it’s not the most important change. The important change is the very, very substantial narrowing of the protection and the very substantial widening of the exception, the exemption which is to be found in the last provision of the Exposure Draft released by the Attorney-General today.

And to make it clear, in the free speech provision that’s there at present there is a need to show reasonableness and a need to show that the defendant was acting in good faith. Both those requirements are being removed by what’s proposed here and what that would mean, and I’ll say it very directly, is that you could be telling bare-faced lies and know about telling bare-faced lies, that you could be deliberately intending to hurl racial abuse under cover of a political discussion but that that would not deprive you of the supposed free speech protection that’s here provided. You could drive a truck through this exception.

JOURNALIST: Do you think the 150 community organisations that have already written to the Government will be assuaged by this draft?

DREYFUS: Well again, I don’t want to speak for those groups. All of those groups speak for people who are affected by racism in our community, all of those groups speak on behalf of people who have been the victims of racist abuse and their concern, and the depth of their concern is reflected in the open letter that they wrote to the Government. I think it, I’m not speaking for them, but it would seem to me unlikely that any of those community groups are going to be satisfied by this very substantial removal of protection against racist speech in our community. I see this as giving a green light to some forms of racism and I suspect that many of those community groups are likely to reach the same conclusion.

JOURNALIST: There’s a long way ahead isn’t there, it’s going to go through a very protracted enquiry process, parliamentary enquiries, community debate? We wouldn’t see any action for a year or so, would we?

DREYFUS: Well again, that’s a matter for the Government. The Government has prevaricated, it announced that it was going to repeal this provision many months ago and nothing has been seen until today. I’ve repeatedly called on the Government to make clear what it is that they were proposing. They have now put forward a draft of what they are proposing and the Attorney-General, as I understand it, has indicated that there’s to be a month of consultation – that’s what he said in his press conference – and during that month I would be expecting very, very many number of people in the community expressing their views about it and what follows then is a matter for the Government. I hope that the end result of that consultation process is that this ill-conceived proposal to repeal Sections 18C and 18D and replace them with a much narrower protection is withdrawn.

and in conversation with Rafael Epstein on ABC:

RAFAEL EPSTEIN: The ALP is not happy with these proposed changes, the Shadow Attorney-General is Mark Dreyfus, he joins us from Canberra, yes from Canberra. Mark Dreyfus, good afternoon.

MARK DREYFUS: Good afternoon Raf.

EPSTEIN: Do you agree that the current law stifles debate? There are some things are not being said that would be better they were said?

DREYFUS: No I don’t, obviously it stifles racist hate speech and that’s the purpose of this provision. It’s served Australia very well for nearly 20 years, yet what we’ve had today is almost the complete destruction of this provision and it’s what you’d expect from an Attorney-General who said yesterday people do have a right to be bigots.

EPSTEIN: You’ve got a new provision don’t you? You’ve got a much tougher vilification provision, there’s one under the Criminal Code but it’s essentially physical violence, you’ve now got a freedom of speech law about vilification?

DREYFUS: It’s not tougher at all. It’s a vastly narrower prohibition- vilify has been narrowly defined to mean only insight hatred against a person and intimidate, which is the only other part of the prohibition, has been narrowly defined as well to mean cause fear or physical harm, that is a vastly narrower protection than that which Australians have enjoyed for nearly 20 years. If that narrowing was not enough they’ve put an exception on top of it all, basically would mean you could drive a truck through it Raf. It’s saying-

EPSTEIN:  -I might read that section if you’ll forgive me, Mark Dreyfus –the exemption is for words, sounds, images or things spoken, broadcast, published or otherwise communicated in the course of public discussion, so anything political, social, cultural, religious, artistic, academic or scientific matter. So that’s when you’re allowed to say those things, but, Mark Dreyfus, there is a fairly broad exception under the current law as well isn’t there

DREYFUS: That’s right, there is a protection of free speech under the current law. But importantly it has the elements of reasonableness and good faith and that’s what’s been removed here.

Not only is there an incredibly broad exception which you could drive a truck through, it would cover anything that anyone says that is in anyway related to politics, or social or cultural , or artistic, academic or scientific matters – they’ve removed reasonableness, they’ve removed good faith and what that means is you can tell lies and you’re still covered. You can deliberately set out to racially abuse someone but provided you can also say this discussion of political matters, or discussion of an artistic matter or scientific matter, you will not have contravened the section.

They’ve practically repealed it in full, they’re pretending that’s all, pretending to have introduced a provision and it’s really a shameful day. We’ve got an incompetent Attorney-General here who doesn’t understand what his job is, his job, he is someone with the responsibility for the Racial Discrimination Act and he’s got the responsibility to say no to racism. We need a government that stands against racism, and this is not it.

EPSTEIN:  Isn’t the best solution, if someone was going to stand up and say the Holocaust never happened, the best way to beat that argument is to argue back with them, to allow them to have their say and I would say that it’s the same with something like discussions about climate science. The best way to demolish those arguments is to produce the evidence, to produce the facts. If you bury things like Holocaust denial under a legal cover doesn’t that just allow those things to fester?

DREYFUS: No, we are saying that there’s lines to be drawn just as there are lines drawn in the law now, you can’t go out and defame someone. If you’re a business man you can’t go out and tell lies  and engage in misleading conduct about what you’re selling. If you’re on the street you can’t use offensive language, a police officer under the offensive language statutes in every State and Territory can charge you with an offence and there’s a legion of other lines that have been drawn in the law.

This is a line that was drawn in the early nineties after very detailed community consultation, a national inquiry into racist violence, Irene Moss as Race Discrimination Commissioner, Ron Castan –

EPSTEIN: – It was a Labor Government and the Coalition objected at the time didn’t they?

DREYFUS: Not fully, they supported the idea of racial vilification legislation, there were some arguments about the form it should take but they basically supported it and that’s because it was the product of a number of reports, Royal Commission into Aboriginal Deaths in Custody was another, and after a long consultation the legislation was introduced in 1994, came into effect in 1995 and has served Australia very, very well.

EPSTEIN:  Look it was a little, I don’t know, unedifying or hypocritical, you and others on the Labor front bench were essentially calling the Government racists and bigots for producing this legislation in question time.

DREYFUS: That’s not right. We were quoting the Attorney-General saying yesterday in the Parliament that people do have a right to be bigots. And of course what this legislation is about is racist bigotry. It’s designed to prevent, and has been successful, in changing community attitudes in Australia, in reducing in many respects racist speech in Australia which I think every Australian would agree has no place in 21^st Century Australia.

We’ve got a Government who’s running away from its obligations and it’s also pretending that it’s starting afresh. It shouldn’t. We’ve had a law in place for nearly 20 years, that’s the starting point. The Government has produced no evidence – none – that in any way supports the repeal that they’re engaging in or proposing to engage in here.

EPSTEIN: Look I know you need to get on to another interview, I’m curious though – this will only pass if it passes the new Senate, that looks like where it’s heading. Would you be the person speaking to Clive Palmer? Who would speak to Clive Palmer about this, from the Labor Party?

DREYFUS: Clive Palmer is very approachable, very considered, and I’ve certainly had meetings with Clive Palmer-

EPSTEIN: – About this

DREYFUS: I’m not going to disclose what I’ve talked to Clive Palmer about. I’ll say and, he’ll be happy to confirm, that I’ve had conversations with Clive Palmer, as have a number of my front bench colleagues, and indeed backbench colleagues, because as I say Clive Palmer is very approachable. He’s going to be in a very important position come 1 July because of the Senators who will be sitting in the Senate from the Palmer United Party.

EPSTEIN: I don’t know if you’re a gambling man, but would you bet on Clive Palmer backing the Government’s changes on this?

DREYFUS: I wouldn’t.

EPSTEIN: So you think he’ll oppose them?

DREYFUS: I think there’s more discussions to be had, but I think there’ll be at least one of the incoming Palmer United Party senators, Senator Elect Glenn Lazarus, will have great difficulty with the provision in the form in which this Government has introduced it, because it is a massive watering down and in every sense a green light to racism. I think that Glenn Lazarus will be concerned about that. I think Clive Palmer himself will be concerned about it. But I’m not going to speak for them, you should ask them directly yourself.