Racial discrimination law changes

Program:

Radio National - Drive

Interviewer:

Patricia Karvelas

E&OE

PATRICIA KARVELAS:

The Nick Xenophon Team doesn’t want to vote for your racial discrimination law changes, that means it’s dead in the water.

MINISTER PORTER:

They haven’t even read the legislation yet.

I mean, I have seen their press release, but there’s a tendency in all of this to jump ahead of the actual public policy issue and the legislation itself and give a bit of steady, sober consideration about what the change is, how it can improve the legislation and, in my observation, it definitely can and will improve the legislation.

But look, there’s been a press release out that, I think what is very useful at the moment, is to focus what the legislation seeks to do and why it makes the system, as the Prime Minister has noted, stronger in terms of the government’s ability to control speech which we could characterise properly as racial hatred.

PATRICIA KARVELAS:

If they, or any other cross-bench members, want one of the terms ‘insult, offend or humiliate’ put back in the law, would you consider that? Because you might say it’s just a press release, but I don’t think they could have put it any more strongly, I don’t think they’re entertaining the way that you framed it this afternoon.

MINISTER PORTER:

They certainly couldn’t have put the press release out any more quickly.

To put out a press release saying that you oppose legislation that you haven’t really yet seen, I think is quite interesting.

PATRICIA KARVELAS:

You articulated what you were changing very clearly – all Australians can see it, I’m across the detail of what you’re changing – where’s the grey?

You’ve told us which words you’re removing, you’ve told us what you’re putting in, we know what you’re doing.

MINISTER PORTER:

Well, again, the legislation involves a whole range of procedural changes as well as the changing to the language that you’ve noted.

In direction to your original question, that language change is absolutely critical to what is being proposed here, and the proposition that we’re putting as a government is that, that cluster of words ‘offend, insult, humiliate’, which basically asks the Human Rights Commission and eventually courts to consider how someone feels about a statement that was made, has made this provision confused. In practice it does not work very well at all.  In practice it drags a range of people into very serious legal processes which can damage their career, which can cost them an enormous amount of money which don’t produce the sort of result we want, which is the proper balance between protecting people’s right not to be the subject of hate speech but equally protecting people’s right to speak fairly and openly without being dragged in to a legal and then judicial process.

PATRICIA KARVELAS:

Why are these changes going to make it easier for someone to be humiliated on the basis of race?

Do you think people should be humiliated on the basis of race?

MINISTER PORTER:

Of course not.

But I also agree…

PATRICIA KARVELAS:

But you’re taking out the word ‘humiliate’.

MINISTER PORTER:

Well, but that doesn’t mean that anyone believes people should be out there speaking in a way that humiliates other people.

However, why this change makes the legislation stronger, is because at the moment that cluster of words – ‘offend, insult, humiliate’ – asks the Human Rights Commission, and potentially a court after that, to determine how someone feels about something that was said.

And as was put before the Parliamentary enquiry by someone who submitted, in I think which is a very simple and pithy description of what is happening at the moment, is that it’s unknown on which issues you can speak and cannot speak.

There is so much lack of clarity in the law at the moment that this provision is not actually working to have the proper balance between people being, not being subject to hate speech and people being able to speak freely and fairly, and that balance is not struck.

And keep in mind that when this legislation was introduced, Michael Lavarch, the then Attorney-General said, it was about the protection of groups and individuals from threats of violence and the incitement of racial hatred. And the system is not working at the moment because the provision lacks clarity.

PATRICIA KARVELAS:

Is it acceptable to call someone, and I’m going to use the word on air, because this is the word that was asked in a Labor question today, is it acceptable to call someone a ‘wog’ under the proposed changes?

MINISTER PORTER:

Absolutely not – well first of all are you asking me if it’s acceptable out of principle, of course it’s not…

PATRICIA KARVELAS:

No, I’m talking about the law, no principle – I’m not asking principle - I assume that you don’t accept the principle, but do you think it should be legal to call somebody, as I say I’m not going to repeat it again.

MINISTER PORTER:

Yes, I understand the word.

The observation I’d offer is that it depends on the circumstances, but this formulation of words, that is to say the use of the word ‘harass’, has been used in Western Australia under the equivalent legislation, and precisely that type of language has been suggested to sustain the charge of harassment.

So that type of thing, things like holocaust denial, many of the types of things that we see which are prevented by the legislation as it stands now would equally be prevented by the use of the term ‘harass’.

PATRICIA KARVELAS:

How would this protect against holocaust denial? If someone’s a holocaust denier and is making that argument, how are they protected, where is the harassment, how can someone argue that they are being harassed by somebody’s argument of holocaust denial?

MINISTER PORTER:

Again that would depend on all the circumstances, but there have been cases…

PATRICIA KARVELAS:

So that would provide some options for people to try out their views of holocaust denial?

MINISTER PORTER:

Well, so there have been a couple of cases that have been – had the subject of holocaust denial under the existing provisions; Tobin and Jones; Jones and Scully. Now I’ve read those cases, my observation would be that the circumstances that occurred in denying the holocaust in those cases would be well and truly covered by the use of the word ‘harass’.

But the use of the word ‘harass’ also, in my legal observation, would mean that you would not be dragging in to long, damaging, unfair legal processes people like Bill Leak for the type of cartoon that he published, people like the young Queensland University of Technology students – so this is about having the best, clearest law. And if it is clear, it is fairer and stronger.

PATRICIA KARVELAS:

What do people need to be able to say that they can’t currently say?

MINISTER PORTER:

Well, the question I think is what do we think people should be able to say without being dragged into a legal process?

Well I think that someone like Bill Leak, or a cartoonist, who wants to publish a satirical cartoon that raises an issue of controversy, but does it in a fair-minded way…

PATRICIA KARVELAS:

Bill Leak didn’t face the courts though did he?

MINISTER PORTER:

No, but he had a complaint levied against him. That complaint went to the – was accepted by the Human Rights Commission. It was under consideration by the Human Rights Commission.  He had to put in defences; he had to defend himself against that complaint. It is a very, very serious matter, whether you’re a young student or a cartoonist to be placed in a situation where you have to legally defend yourself against accusations of racism.

PATRICIA KARVELAS:

But didn’t’ Bill Leak have 18D to defend himself, for artistic expression?

MINISTER PORTER:

But as was noted in the Parliamentary Committee, the defences are only available once the person has been subject to the complaint; once the complaint has been accepted by the Human Rights Commission.

And at that point in time – Patricia, I don’t know about you – but I certainly would not want to be in a situation where the onus tips over to me, or to a cartoonist, or to a young student, in what is often a very long, costly, career-damaging and reputation-damaging process, where you have to prove you’re not a racist, on the basis of a cartoon.

Now if people are suggesting that that is a good process at the moment, or that that represents good law, I would say, and the Government says, it does not represent a good process and it does not exemplify a law that is working well at all.

PATRICIA KARVELAS:

How about the victims of racism though?

You’re talking about the people who want to express their views, but you’re not talking about the victims of racism.

You’ve now raised the bar significantly for them to be able to make a case, all of the groups that have been lobbying for a long time against changes to 18C, as you’ve articulated, have made that point today – you’ve made it harder for them to make a case about racism, haven’t you?

MINISTER PORTER:

Well, the test is different under a formulation…

PATRICIA KARVELAS:

Harder?

MINISTER PORTER:

Well, I think that it is different.

But let me explain why it is different. The reason why it’s different is because if you say something that offends someone else, or insults or humiliates them, there is necessarily a subjective element to that, because you are saying something that causes them to feel a certain way.

If you say or do or act in some way that harasses someone, that is an act which can, and must be, seen or heard or witnessed and objectively measured as to whether or not is has the effect of harassing someone.

Now those two are quite different standards, and I would say that it is quite likely that, say for instance in the Bill Leak cartoon case, that it would have been considerably more difficult to justify the acceptance of a complaint under the formulation of the words that uses ‘harass’ than the formulation of the words that uses ‘offend, insult or humiliate’…

PATRICIA KARVELAS:

Ok, so you can now offend, let me be clear…

MINISTER PORTER:

The proposition that that leaves individuals who might be victims of racial hatred, or hate speech unprotected is just not correct.

PATRICIA KARVELAS:

So you can now offend up to the point that you say harassment is defined.

MINISTER PORTER:

Well under the previous law, of course the offence had to be serious rather than slight, as the insult or the humiliation ok?

So there is a difference standard and a different test being applied here, but we say it’s a clearer test, which makes it fairer, which enhances the ability of the legislation over the overarching number of complaints and types of complaints you get, to have a clearly understood provision that better protects what are balancing exercises between the rights of victims not to be subject to hate speech and the rights of people to speak, or to draw, or to publish fairly and not be dragged into a costly, reputationally-damaging legal process.

PATRICIA KARVELAS:

Your Government has said that you’re here to talk about the cost of living issues, you want to deal with the problems people are suffering every day.

You’ve talked about other issues being boutique issues, including gay marriage – not you specifically, I’m not quoting you – but this is the argument that has been made.

This is two weeks before the Budget that you’re sitting. You have prioritised racial discrimination laws in a very tight amount of space, when you haven’t got the Budget under control, you haven’t got your Bills through the Parliament – is this a good use of your time?

MINISTER PORTER:

Well we’re not two weeks before the budget, we’re two months before the budget.

PATRICIA KARVELAS:

This is the last sitting period before the Budget. The last two weeks before the budget.

MINISTER PORTER:

The budget is two months away.

You’ve said we’ve not got the Budget under control, we are showing a clear and credible path back to surplus.

At the previous election the Labor Party campaigned and promised greater debt and greater deficit.

As the Treasurer noted the other day in Parliament, this Government through very difficult and challenging measures – economic measures – has managed to restrain recurrent expenditure growth within a way that actually gives us a fair and reasonable chance and plots a credible path back to surplus…

PATRICIA KARVELAS:

But do you accept this is not…

MINISTER PORTER:

…and the idea that Governments can’t do more than one thing at once is not one that I accept.

PATRICIA KARVELAS:

Do you accept that the Deputy Prime Minister, Barnaby Joyce, says these changes could lose the Government votes, and that in marginal seats with very multicultural electorates, this could hurt you very badly?

MINISTER PORTER:

Well, in this exercise, as in economic exercise, you are trying to balance what are often interests that are not necessarily aligned.

So with respect to this, we are trying to find the right balance between protecting people’s right not to be subject to hate speech and protecting people’s right to speak fairly.

Now in economic matters we are trying to protect people and the Australian community’s overall interests in not having a debt burden pushed onto the next generation – that has meant that we have had to look into what are often challenging and difficult savings measures.

So there is always going to be tension between these things. I think the point that the Deputy Prime Minister was making is that this, in comparison to many of the economic challenges that we are facing, is probably not a first order issue.  But does that mean that you don’t deal with it, or don’t talk about it, or don’t raise the issue?

And I can say again that I’m sure that if you were one of those young QUT students who said something utterly benign and then spent years inside a legal process which was immensely costly, which did no-one any good, you’d probably think this was a fairly important issue.

 (ENDS)