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Estimates: Questioning AG Brandis about changes to the Racial Discrimination Act

Estimates & Committees
Penny Wright 28 May 2014

Senator Wright asks questions of the Attorney-General about his proposed changes to the Racial Discrimination Act.


Senator WRIGHT: I would like to ask questions first of all about the Racial Discrimination Act consultation and the section 18C proposed changes. What was the time frame for consulting on the government's proposed changes to the Racial Discrimination Act?

Senator Brandis: Are you talking about the invitation for public submissions?

Senator WRIGHT: Yes.

Senator Brandis: The exposure draft was released for public consultation on 25 March, and advertisements were placed then-or a couple of days later it may have been-in the major newspapers inviting public submissions. The consultation period closed on 30 April; however, that was a Wednesday and they were still coming in, so we decided to extend it a little bit and closed it at the end of that week on 2 May.

Senator WRIGHT: How many submissions did the department receive?

Senator Brandis: It was around about 3,500.

Senator WRIGHT: How many were in favour-

Senator Brandis: Sorry, I am corrected. It was 5,557.

Senator WRIGHT: Thank you. How many were in favour of the proposed change and how many were against?

Senator Brandis: There was a variety of views expressed, and at the moment I am going through other submissions. This is not an opinion poll, I am not going to go into the question of how many were of one point of view or how many were of another. I think it is enough to say that a wide variety of views were reflected in the submissions, as you would expect, because there is a wide variety of views in the community. There were many who said that section 18C should be repealed entirely and not replaced; there were many who said that section 18C should be left alone and untouched; and there were many who said-which is the government's view-that section 18C should be reformed, and, within that third category, there was a wide variety of different views about how the section could be reformed.

Senator WRIGHT: When will the submissions be published?

Senator Brandis: They will not be published, because they were invited on the explicit terms that they were submissions to government that would be treated in confidence. Whether or not members of the public, or organisations, who have made submissions wish to publish them is entirely a matter for them. A number of organisations-including, for example, the Australian Human Rights Commission, the Law Council of Australia, some of the civil liberties lobbies and the Institute of Public Affairs-have published their submissions, and that is entirely a matter for them. It is not for me, as the recipient of submissions invited on the basis that they would be treated by the government in confidence, to breach that confidence by publishing them.

Senator WRIGHT: There are a couple of things I would take up there. I understand from stakeholders that when the submissions were called for there was an understanding that if they explicitly consented to publication then indeed they would be published, rather than the default position where normally, in any inquiry where the public wants to know what the community view is or know about the consultation, submissions would be published unless people ask for them not to be published. It is being put to me by stakeholders that they understood that if they explicitly consented to the publication of their submissions then that would occur. In fact, quite a lot of stakeholders have explicitly put in a clause like that.

Senator Brandis: They may have done, but that is not the basis on which this was done. This is not like making submissions to a parliamentary inquiry. When the amendments to the Racial Discrimination Act are brought forward by the government later this year, I am very confident that there would be Senate hearings into the bill-before this committee in fact-and on that occasion the ordinary process of public submissions to a parliamentary inquiry will no doubt take place. But that is not what this exercise was.

Senator WRIGHT: Attorney-General, you would agree, I think, that this question has excited a great deal of interest in the community.

Senator Brandis: I think there are a lot of people in the community who feel very strongly about it one way or another. Frankly, I would not overstate it. I think the people who feel strongly about it feel very strongly about it. When I go around my own state, very few people raise the issue with me. I think that this is an issue that has raised a lot of interest amongst certain groups in the community, but other groups in the community have not engaged in it. I would not be able to quantify what those are; I am not an opinion pollster. I do not think that because a lot of people feel strongly about this you should assume that it is something that the entire country feels strongly about.

Senator WRIGHT: With respect, there is a lot of objective evidence to suggest that that is not accurate. First of all, there is an opinion poll that showed that 88 per cent of Australians are not in favour of the change. There is also the sheer number of submissions that were received. According to what I have heard from you today, there were 5,557 in just over a month,

Senator Brandis: About five weeks.

Senator WRIGHT: I think that is an objective indication of the degree to which people were not just concerned about it but motivated to write, given that-from what you are saying-there was not even an undertaking that those opinions would be made public.

Senator Brandis: There was more than that. There was an assurance that they would not be, because people do have a right to put their views to government and to have their privacy protected.

Senator WRIGHT: But the point is that, clearly, there is a lot of interest. I think that it is not just academic to suggest there is not.

Senator Brandis: There are 23 million people in this country and five and a half thousand made submissions. As I said before, I think a lot of people feel very strongly about this. Most of the people who approach me on the issue tend to say, 'What are you doing? Why don't you get rid of section 18C entirely rather than mucking around with amendments to it?' But I acknowledge that there are many other people in the community who would rather see section 18C left alone. And, as I said before, there are people in the middle who think, as I do, that section 18C is not perfect; that it should be reformed but not repealed.

Senator WRIGHT: With respect, earlier in response to one of my questions about publication and how many submissions were in favour or against-so we can look at whether that means totally in favour of what you are proposing, on middle ground or wanting some change or no change at all-you said, 'It's enough to say that there were many, many and many'. I put it to you that that actually is not enough, that people genuinely want to know what their fellow Australians are feeling about this. Many, many, many: does that actually mean a third, a third, a third? Does it mean eighty per cent? How will we know the proportions of people who are in favour of those three broad stances you have outlined?

Senator Brandis: I think you misunderstand the exercise. This was not an opinion poll.

Senator WRIGHT: It is a canvassing of opinion.

Senator Brandis: This was not an opinion poll. This was to solicit views of the community about what was the best way to deal with this matter. We did not embark upon an opinion-polling exercise. What we did was ask the community to tell us their ideas. The government went to the election with the announced policy of reforming section 18C or, as I sometimes put it, repealing section 18C in its current form. That is our policy; that is what we are going to do. For that reason our policy was not to leave section 18C unamended, nor was it our policy to repeal section 18C entirely, as a lot of people would like to see us do. What I am particularly interested in are those people who have good ideas about ways in which the section can be improved. That is what I am looking for; I am looking for ideas. If I can put it this way, this is a qualitative, not a quantitative, exercise.

Senator WRIGHT: It seems to me that, given there is no commitment to making those interesting ideas known to the general community, this was totally for the benefit of you and your government in understanding what people's views are about it. Is that right?

Senator Brandis: I suppose you might put it that way. The purpose was to inform the government's thinking by asking people to contribute to that thinking.

Senator WRIGHT: I might take you now to the wording of the exposure draft. I will come to whether or not there might be any change to that, but let us go with what we know at the moment, the exposure draft that is there. I am interested in knowing who drafted the exposure draft. I am thinking it may have been all your own work, maybe with a bit of assistance from someone else or from a couple of other people. Was Parliamentary Counsel involved in it at all?

Senator Brandis: It was primarily drafted by me in consultation with the department and with others, yes.

Senator WRIGHT: Did Parliamentary Counsel cast their eyes over it and give any advice about it?

Senator Brandis: This is not legislation; this is an exposure draft. So that would not ordinarily happen.

Senator WRIGHT: No, that is right. I am just interested. I have read it. I read it when you first announced it, and I am really interested in understanding how it would apply on the ground. I am particularly interested in the exemption clause. It is extremely wide. I am wondering who would actually be caught. What comments or discussion would actually be caught by subsection (4) of that proposed amendment?

Senator Brandis: I am not going to discuss with you, or offer my views about, the meaning of these provisions. As is apparent from your earlier questions, and as we know, this draft is the subject of review following the contributions that have been generously made by so many people who have taken an interest in the matter. Frankly, I think it would be disrespectful of the people who have contributed to the process for us to treat this document as having any status other than as it was described-an exposure draft for the purpose of soliciting feedback. As I put it elsewhere recently, the government did not put this out for discussion with the intention of not listening to what people had to say about it. That is why we are going through all of these submissions, some of which-not all of which-I find very illuminating, just as I found the private discussions I had with certain key stakeholders before that also very illuminating. I do not think any purpose would be served by me offering my own views about what this document means, given the process on which we are now embarked.

Senator WRIGHT: With respect, Attorney-General, this was put out in good faith as a statement of what the proposal was. It was an exposure draft. You invited comments on it. I would suggest that the community is entitled to understand the thinking behind it. Presumably you felt an exemption of some kind was necessary. The width and the breadth of the exemption has excited a lot of interest. Given that we will be looking at some further potential changes to it, I am interested in knowing-given that this was put out as a serious document and this is my first chance to ask you about it-what behaviour would be caught as unacceptable by this extremely broad description of what the exemption would be? Does it include a discussion in a city square? Does it include a discussion in a workplace? Is that a public discussion? Does it include a discussion on television or on public transport?

Senator Brandis: As a matter of fact, that expression on which you have fixed does not really take the matter very far, because the existing section 18C also only applies to public acts, or acts, as it were-to use the vernacular expression-in the public square.

Senator WRIGHT: But it is a far broader range of behaviours that are caught, whereas, with this exemption, there is a lower bar, in a sense.

Senator Brandis: You may think that. Perhaps it might be helpful if I approach your question this way. You asked what the thinking was behind this. I have tried to explain this in answer to questions from Senator Singh.

Senator WRIGHT: It is the exemption I am talking about.

Senator Brandis: Yes. There were also questions from Senator Peris-and I thought perhaps from you, Senator, but a Greens senator anyway-in the chamber. My thinking is that the existing section 18C is imperfect for two principal reasons. I am not saying these are the only reasons, but they are the main ones. The first is because it is, in my view, way too restrictive of freedom of speech and freedom of discussion. The second is that, although it purports to deal with racist language, it actually does not provide for racial vilification, which is the core concept here. In a sense it fails, in its current wording, at both hurdles. It does not provide effective protection against racial vilification, which is the core mischief to which it is meant to be addressed, and, because of the way it is worded, it is, in the government's view, way too restrictive of freedom of discussion.

Senator WRIGHT: But with the exemption itself-that you proposed in the exposure draft-what area of public discourse or public behaviour would that exemption not apply to? What is left? That is the question that many people have been asking.

Senator Brandis: The exemption would not exempt, for example, racial abuse. It would not exempt racial vilification.

Senator WRIGHT: 'Words, sounds, images or writings spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic or scientific matter'-the question I had was an example of-

Senator Brandis: I do not regard the utterance of a racist jibe, for example, or racial vilification, as words uttered in the public discussion of a matter.

Senator WRIGHT: What about a discussion on public transport near a person of a particular appearance-a general discussion where someone invites the others on the public transport to engage in comment about the merits of a particular race, their attributes, their characteristics? I would suggest that that would be caught within that exemption. It is 'in the course of public discussion'. It is 'any political matter'.

Senator Brandis: You are entitled to your view.

Senator WRIGHT: I am asking you: why am I wrong?

Senator Brandis: The point I make is that the same could be said for the existing section 18C.

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