A Senator with Spine

For me, and I believe for all of us, one of the most important responsibilities in this place is to preserve the institutions and the principles that underpin our democracy. There is no greater democratic value or individual freedom more greatly valued and oft cited in the modern Western world than the right to free speech or freedom of expression. It is, indeed, the foundation of all modern democracies. But it is something that cannot and should not ever be taken for granted, and it is incumbent on all of us in this place to make sure that it is preserved and that our legislation reflects contemporary values and contemporary considerations.

Our own unique liberal democratic culture here in Australia recognises that society is improved by individuals thinking for themselves, imparting their own views and then having them contested in open and very robust debate, so that good ideas gain traction and bad ideas wither away, enabling changing social norms to be reflected in the legislation of the day.

While freedom of speech is never, ever completely free in any democracy, history shows us that freedoms are not successfully preserved through legislative or, in practice, censorship of deeply held opinions or beliefs. It is very clear to me that in all democracies free speech is essential to preserve and protect the rights of minorities. Freedom of speech is essential to preserve and protect the rights of minorities.

The wonderful thing about our own unique form of representative democracy here in Australia, indeed, particularly for senators on this side of the chamber, is that we can pursue topics we feel very passionate about without fear of repercussion, and we have in our very broad church the freedom to express our own personal views. It is our job and it is the expectation of the very people who elected us to represent them.

Despite some opinions to the contrary, Australia does not have a bill of rights. Therefore, it is our role as parliamentarians to make, review and amend legislation to ensure that it is responsive and reflective of the will of the electorate. Our own constitutional founding fathers deliberately did not codify in any founding document of our nation individual freedom, rights and liberties. Rather, after a considerable degree of debate and discussion, they determined that societal values, norms and opinions change over time and, once codified, were difficult if not impossible to transform with the changing views and opinions of society. Our founding fathers had great faith that the Australian people would ensure that laws and judgements represented the majority of community expectations and beliefs of the day. That, I believe, is our role here today.

As elected representatives in this place, we are the guardians of free speech in this nation. It is a constant balancing act in all democracies but a balance that must be constantly challenged and constantly tested, and the only way to do that is to allow free debate and free discussion on issues of the day, and it can never be taken for granted.

Our greatest Prime Minister, Sir Robert Menzies, explained in a University Of Virginia lecture in 1967 why Australia does not have a bill of rights. He said far more eloquently than I ever could:

Responsible government in a democracy is regarded by us as the ultimate guarantee of justice and individual rights.

He is talking about all of us in this chamber and in the other place. We are the guardians of justice and individual rights in this nation.

I am glad that the draftsmen of the Australian Constitution made little or no attempt to codify what individual liberties are, as those 1901 values would have been codified and be in either our Constitution today or a similar bill of rights. Our founding fathers also knew that with legal definition words can become more important than the ideas they are seeking to capture and, as I have said, values and societal norms change over time. They also knew that to define human rights is to limit them—for, in the long run, words have to be given some meaning; there has to be some judgement made about the meaning of those words—or to express them so broadly that the discipline which is inherent in all governments and ordered societies becomes difficult if not impossible.

All of us who exercise freedom of speech and freedom of opinion, be it in public life or in the media, have to accept that others are likely to be vehemently in disagreement with what we say, and also that others may be offended or insulted with what we have to say. But that is a healthy thing in any democracy and it is critically important to make sure that our standards are acceptable to the Australian community.

Noam Chomsky noted that Goebbels was in favour of free speech for views that he liked. So was Stalin. If you are really in favour of free speech then you are in favour of freedom of speech for precisely the views that you abhor, otherwise you are simply not in favour of free speech. My own experience over many years in politics is that many, particularly I think on the left, endlessly espouse tolerance and compassion with a fervour that leads me to truly believe they are the single moral compass of our nation. How insulting is that? In our democracy, they certainly have the right to that opinion. But, for me, here is the rub: while many on the left in public life and in the media are endlessly and stridently compassionate for, and tolerant of, those who reaffirm their own personal truths and morals, they are equally ruthlessly intolerant of those who do not share their own beliefs. Anyone who dares to question their own unshakable beliefs is dismissed as ignorant. Worse, in public life today, they are labelled as sceptics, and there is an attempt to hound them into silence to ensure that the public hears and believes in only one truth—the truth of many of those on the left.

All this does is suppress and generate frustrations in the many whose voices have been silenced, leading to the very reactions that those seeking to suppress their point of view are seeking to avoid.

Two years ago, I spoke in this place about my concerns with section 18C as an example of a counter-productive legislative restriction on the freedom of speech and expression. The changes to the Racial Discrimination Act that are the subject of much discussion and debate are removing the words ‘offend’ and ‘insult’ from section 18C. These are words which hurt feelings, not humiliate or intimidate—which I think we are all in agreement should stay. In its current form, I do not believe that section 18C strikes the right balance between freedom of speech and the prevention of racial discrimination.

I greatly appreciate the comments made in this place throughout the course of this debate, particularly those in Senator Moore’s speech, and also in Senator Dodson’s fabulous first speech. Both of them reminded us of our shared humanity and what limitations are acceptable to the Australian community, and, as Senator Dodson reminded us, standards and social norms change over time.

When reviewing any legislation, the intent and context is always critically important. It is my understanding that, when the act was passed in 1975, the original intention was to prohibit racial discrimination in accordance with the International Convention on the Elimination of All Forms of Racial Discrimination. However, subsequent amendments have extended its reach to the point where many, including me, believe it has created a serious imbalance between its intentions and its practical application. To me, the recent and very much publicised QUT case demonstrates that 18C has gone a step too far. I believe that removing the words ‘offend’ and ‘insult’ and leaving the words ‘humiliate’ and ‘intimidate’ strikes the right balance and restores clarity and precision to the act. Hurt feelings should not have legal recourse.

During the course of this debate, many prominent Australians outside this place, from all sides of the political spectrum, have lent their support to removing the words ‘offend’ and ‘insult’ from the act. Mr Paul Howes is somebody who I perhaps would not normally be quoting in support of my argument in this place, but Paul Howes, the former National Secretary of the AWU, summed it up I think very eloquently when he said:

… I am concerned that people in some of the circles I mix, on my side of politics, increasingly seem to think that they should write, or invoke, or resurrect, laws that will shut Andrew Bolt up.

That is not freedom of speech, and that is a step too far. Warren Mundine, the head of the Prime Minister’s Indigenous Advisory Council, last week expressed support for removing ‘offend’ and ‘insult’, stating:

I do believe it needs changes—not to wipe it completely, but to pull it back a bit.

And, while senators on this side of the chamber may not regularly turn to Julian Burnside for inspiration, on this topic I find his opinion very instructive. He has stated:

The mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability. My personal view is that 18C probably reached a bit far so a bit of fine-tuning would probably be OK.

Indeed, the Australian Law Reform Commission itself concluded last year:

… there are arguments that 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. In some respects, the provision is broader than is required under international law to prohibit the advocacy of racial hatred, broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.

In comparing Australia’s section 18C with other common law countries, the commission also found:

The New Zealand and UK provisions seem narrower than the Australian provision … For example, the provisions do not cover offensiveness, and require that the person provoke hostility or hatred against a group of persons defined by race or ethnicity.

In fact, the diversity of views previously held within the Human Rights Commission itself reflects the wide range of opinions in the community on this issue, and therefore I believe this discussion, while it has been over two years in the making here in this chamber, has a long way to go in the Australian community, as it should have.

But freedom of speech isn’t just about academic interpretation, legal interpretation or judicial interpretation. I think it goes further than that and touches on elements that actually make us Australian. The journalist David Marr said:

The present act has to be changed—a little. Hurt feelings should never attract the law as they do now under section 18C.

He went on to touch on an important point saying that ‘offence and insults are the everyday reality of free discourse’ here in Australia. David Marr’s comments that offence and insults are the everyday reality of free discourse in a democracy made me reflect on my uncle, Bruce Reynolds. He was a true Aussie larrikin from Marble Bar in Western Australia. He was the sort of bloke who would get up at 10 o’clock in the morning and have a bit of a flagon over his shoulder. He would welcome people with open arms. He lived out of his trailer—an old trailer with wardrobes which made up the walls of his house. I have absolutely no doubt that some would have found his language offensive and certainly occasionally insulting. But most of us who knew him would have seen the mischievous smile and the twinkle in his eye as he took the piss out of people. I think it would be a tragedy for all Australians if, in the name of political correctness and for fear of hurting someone’s feelings, that great sense of Australian larrikinism and, as I said, taking the piss out of people were lost.

Our founding fathers would have been so proud that in this place we can simultaneously debate issues that are fundamental to the health of our democracy—in this case, freedom of expression—while, at the same time, the government of the day can get on with what it is elected to do. I believe this is a cause for great celebration in here and in our nation—and not one for criticism and derision.

Liberal Senator Linda Reynolds represents Western Australia. This speech was delivered in the Senate on September 12, 2016