Senator MINCHIN (11.49 a.m.) —Like my colleagues on this side of the House, I rise to oppose the Racial Hatred Bill. There are two grounds on which I have that position: firstly, I believe that this bill represents an improper and undue restriction on freedom of speech in this country; and, secondly, I think this bill has a dubious constitutional foundation in that it appears to rely on the external affairs power. In my view, the matters dealt with in this bill are matters for state parliaments, not the Commonwealth.
If I may deal with the first of my grounds for objection, the very important issue of freedom of speech. Freedom of speech is a fundamental tenet of the philosophy of my party; that is, liberalism. I believe it is a fundamental tenet of democracy itself. In my view—and in the view of my colleagues on this side of the House and of many Australians—this bill is an insidious example of the growing restrictions on freedom of speech, which we are encountering in the name of an insidious philosophy that bears the name of political correctness; that is, the philosophy that says, `We shall control what you say and to whom you may say it.’
It is not atypical of this government that a bill of this kind should be brought forward. This is the government that is increasingly being characterised as authoritarian by many commentators. This is the government that passed an act through this parliament to ban political advertising, an act which was then thrown out by the High Court.
This bill is in the same vein as that particular legislation. It seeks to make racially based threats criminal offences, and I congratulate Senator Chamarette on her eloquent objection to those provisions. But it also makes offensive statements civil offences, and I am disappointed that Senator Chamarette should indicate her support for those. In my view, both of these sections are unacceptable restrictions on the freedom of speech in this country.
There is, of course, no absolute freedom of speech in a democracy. We have laws at state and federal levels that qualify the freedom of speech which, in a democracy, we regard as acceptable restrictions, particularly in relation to defamation—although that restriction has been loosened recently by the High Court as well.
What we are saying to the parliament is that this bill is an undue restriction on the freedom of speech in Australian society. To justify what we regard as an undue restriction, the government would need overwhelming and compelling evidence that such drastic legislation was necessary for the cohesion of Australian society. In my view, the government has not produced any convincing evidence to justify this draconian law.
I think there is universal agreement on both sides of this chamber—throughout Australian society and probably internationally as well—that Australia is one of the most extraordinarily tolerant nations in the world. We all are proud of the absorption of migrants from all over the world that has occurred particularly since World War II. There has been a remarkable absorption of peoples from all over the world by this society. That is why I really do believe that this law is an insult to the tolerance and acceptance which Australian society has exhibited for the last 50 years.
Both sides of politics proclaim the success of our multicultural society. We hear it particularly from the government, but we share in the view that our society has been successful in absorbing people from all over the world. To justify this kind of law, you are really saying that multiculturalism has been an abominable failure and a monumental failure. What you are saying if you put forward a law like this is that something is not working, something is wrong and that our multiculturalism is wrong. But that is simply not the case.
The government often proclaims the view, which we share, that this has been a remarkably successful multicultural society. We do not think it has failed. We do not think Australians need to be punished or insulted by the introduction of such a law. This law is unnecessary and should be rejected by the Senate.
It is already an offence in Australian states and territories to threaten to cause injury to people or to property. The law is there and can be used. This law may also offend the constitutional protection of freedom of political discussion which has recently been enunciated. As the Parliamentary Library’s Bills Digest on this bill says:
The Racial Hatred Bill is clearly directed at restricting certain forms of speech and is targeted at the subject matter of the speech. It will, accordingly, require a compelling justification to sustain its validity.
It is our view that there is no compelling justification for this law at all. The government has simply not put up that justification. The print media in this country, to their great credit, are overwhelmingly opposed to this law because of its unwarranted restriction on the freedom of speech.
We have Labor sympathisers like Phillip Adams and Father Frank Brennan vehemently opposed to the law brought forward by this Labor government. Indeed, I commend Phillip Adams on his excellent article in the Weekend Australian of 27 May. I quote his introduction to that excellent article:
Around the world, people are dying to get it. And we’re giving it away. Qualifying it, compromising it, trying to suffocate it in new protocols and legislation. Free speech.
He went on to say:
The real test of our commitment to the ideal—
of free speech—
is our willingness to extend the right to people we disagree with. To those we don’t like.
It has not been put more eloquently than by Phillip Adams.
I move to my second ground for objection to this piece of legislation; that is, the question of the head of power under which it is enacted. It is legitimate to ask what authority the Commonwealth parliament has to enact this restriction on the freedom of speech. We presume that the source of constitutional authority is the external affairs power. So again we have a Labor government using the external affairs power to pass laws clearly and unequivocally dealing with purely domestic issues.
The Australians who drafted our constitution and the Australians who voted in support of it would no doubt be horrified to learn that a federal government was using the external affairs power to restrict the freedom of speech. What Australians can and cannot say is, frankly, an internal affair; it is not an external affair and it has nothing to do with the external affairs power.
In my view, this bill and the enactment of it under this head of power simply reinforce the argument that the constitution does need amendment to restrict the external affairs power to the purposes for which it was originally intended. It is wrong to use this head of power to give the federal government the authority to decide what Australians can and cannot say, because that is what this bill purports to do.
Apart from that in-principle issue of the use of the external affairs power to enact legislation like this, there is the specific question about whether this is an act that is valid even under the current High Court’s very wide interpretation of the external affairs power. The Parliamentary Library’s Bills Digest argues persuasively that there must be some doubt about the constitutional validity of the civil offences created by this bill and, if this bill does pass, no doubt it will be challenged.
I must say in any event as a committed federalist—putting that argument to one side—that it is my firm view that laws such as this should not be the province of the Commonwealth government at all. I adhere firmly to the principle of subsidiarity—which I am pleased to see is growing in its support around the world, most particularly in the European Union—that is, that laws should be made at the lowest possible level of government if we are to sustain democracy and people’s commitment to it.
If there is any demonstrated need for laws such as this dealing with racial hatred—and I commend Senator Chamarette for arguing the offensiveness of that in itself; we ought to be talking about racial tolerance—which need this government has not put forward, then it should be a matter for state governments. It is for state governments to determine the need for laws such as this and act accordingly. We do have different societies, different positions, different values and different compositions around Australia, and it is for states to respond accordingly if the need is demonstrated.
Of course, the New South Wales government, as this federal government has said, has decided that that state needed a law dealing with racial vilification, and such a law was enacted in 1989. It is proper for the New South Wales government to come to the view that in that particular state, which has a different composition, different pressures and different status, such a law is necessary.
I am not going to comment on the rights or wrongs of the New South Wales law, but I respect the right of that parliament to enact such a law. I believe that is the appropriate place for decisions to be made on laws such as this and, as I understand it, the ACT, Western Australia and Queensland have also introduced laws dealing with this subject. Again, it is proper for those states to decide accordingly.
The other states in Australia, which are different, have decided not to introduce such laws and, again, it is quite proper for them to conclude that such laws are not necessary in their particular communities. It should be continually noted that all states have laws dealing with threats to cause injury to people or property. Those laws exist, are enforced and applied, and cover many of the situations envisaged by this bill.
In concluding, I join with all my colleagues on this side of the chamber, and with many Australians and many Labor sympathisers, in opposing this bill. I think it is a frightening application of the rules of political correctness; I do think it is an undue and unwarranted restriction on our freedom of speech; and I also believe that it is a very dangerous precedent for restricting other forms of speech dealing with matters other than race. That, I think, is also sobering. I do not believe the government has put forward any compelling evidence to justify the draconian measures included in this bill. I do believe, like Phillip Adams, that this is a genuine threat to the intellectual and political liberties of Australians and that it should be rejected by the Senate.
The Parliamentary Digest that Nick Minchin refers to is here.