Senator SMITH (Western Australia—Deputy Government Whip in the Senate) (16:43): I am pleased to participate in this debate this afternoon as I am always happy to participate in discussions surrounding freedom of speech in Australia. It is a subject that is of singular importance to me, just as I understand it is of singular importance to the two senators who have brought this motion forward this afternoon. I remain, of course, a co-sponsor of the bill that Senator Day and Senator Leyonhjelm still have before the Senate to make changes to the Racial Discrimination Act to remove the words 'offend' and 'insult' from section 18 C. However, at the outset I do have to take issue with the wording of this particular motion, which charges the government with a failure to uphold free speech. I am not sure that charge can be sustained, though I will of course listen to the contributions of others this afternoon. But I would simply point out that the gravest threats to free speech in Australia, certainly in legislative terms over recent years, have tended come from elsewhere in this parliament. The Labor Party, with the notable exception of my WA colleague Senator Bullock, remain implacably opposed to any changes to section 18C. Of course they refuse to debate the subject in any meaningful fashion, preferring instead to send the usual brigade of hysterics into this chamber to screech the term 'racist' at anyone who has the temerity to question whether the present law is operating in a fair and effective manner. Of course it was not the Minister for Communications in this government who jetted off to New York to boast that he was possessed of unfettered legal power to silence people or indeed to force executives to wear red underpants on their head. That, we recall, was Labor's minister, Senator Conroy—someone who was no friend of freedom of speech in that role. Remember his attempts, which mercifully failed, to in effect censor the internet through the Rudd government's proposal to introduce an internet filter. More disturbingly, recall his attempts as part of the Gillard Labor government to establish the public interest media advocate. This would have involved the regulation of newspapers, effectively meaning the government would determine whether or not the publication of particular material was in the public interest. I recollect that some said the scheme sounded positively Orwellian, and I suppose there are overtures of that in Labor's proposal. At the time it reminded me of a writer, someone with whom the two senators who bring this motion forward today are no doubt very familiar. In The Wealth of Nations Adam Smith writes of an order of men, which it would have been in his day, that works assiduously to beat back threats to established powers. Adam Smith says: The proposal of any new law or regulation of commerce which comes from this order, ought always to be listened to with great precaution, and ought never to be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention. It comes from an order of men, whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even oppress the public, and who accordingly have, upon many occasions, both deceived and oppressed it. Of course of those words do not apply exclusively to Senator Conroy—they are watchwords for all time—but they elegantly summarise exactly what the former Labor government was up to when it made its botched attempt to regulate the content of newspapers in our country. They told us their intentions were good. Labor representatives variously tried to claim they were protecting diversity in the media, protecting privacy or trying to civilise the tone of our public discourse. That latter argument, of course, is one we also heard from Labor to support its continued opposition to reforming section 18C. I recall Senator Cameron's creative argument at one point that the phone hacking scandal in the United Kingdom was evidence of why the proposed public interest media advocate was needed in our country, which was a novel approach given that there was no evidence whatsoever that what had gone on in the United Kingdom was occurring here in our own country. But that is always the problem with the Australian Labor Party. They think intentions matter more than outcomes and that attitudes inform their approach to a whole raft of policy measures. Thankfully that particular measure failed and Senator Conroy moved on. I will be very frank on the subject of free speech. I am disappointed with the pace of this debate in relation to section 18C. I am sure that does not come as a complete surprise, given my long-stated position on the subject and my co-sponsorship of the bill of Senator Day and Senator Leyonhjelm. But I am not in the least bit discouraged. I think we are heading the right way, even if we are travelling too slowly from my own perspective. I certainly do not accept any assertion that the government has failed to uphold freedom of speech. It was Victor Hugo who wrote that 'an invasion of armies can be resisted; an invasion of ideas cannot be resisted.' More than 160 years ago, after Victor Hugo committed that thought to paper, it should serve as a continuing inspiration for those of us determined to strengthen Australia's protection of its citizens' right to free speech by reforming section 18C of the Racial Discrimination Act 1975. Although it is true the fight has suffered some significant setbacks in the last 12 months, I remain an optimist. At first blush that attitude may seem incongruous with the prevailing political reality, yet my continued positivity is sustained by the knowledge that the supporters of reform have in our possession that most prized of political commodities—the commodity of momentum. If there is an enduring lesson to be gleaned from history, surely it is that a powerful idea can and will triumph over time and triumph over even the loudest of dissenting voices. This has been amply demonstrated by the course of economic policy over recent decades, which despite the occasional delay or regression has moved inexorably in the direction of freer markets. When the likes of Bert Kelly and John Hyde were parliamentarians during the halcyon days of Keynesian economics, their efforts to dismantle Australia's protectionist tariff wall and discourage fiscal profligacy by governments of both political persuasions were not universally applauded or appreciated. Indeed, they were sometimes portrayed as zealots, even by those within their own party. Yet they held fast at considerable political and personal cost because they were convinced that what they proposed was in the best interests of the economy and therefore in the best interests of Australia. Had they not pursued their objective and instead submitted to the prevailing wisdom of the time, how likely is it that the Hawke Labor government, supported by the then opposition, would have pursued pro-market reforms in the 1980s? Would Australia today be assigning free trade agreements with some of the world's largest economies and our most significant trading partners, as this government has done through the excellent work of the former Minister for Trade, Mr Andrew Robb. Would an agreement such as the Trans-Pacific Partnership Agreement enjoy such a widespread support? The widespread acceptance of free trade as an economic virtue might seem inevitable today, but that was not necessarily the case 40 years ago. Likewise, consider the introduction of a broad-based consumption tax—an idea that had been pursued by economists and policy experts for decades but had enjoyed rather less support amongst the bulk of the political class. John Howard as Treasurer was convinced of the merits of such reform, yet found himself stymied by a lack of political support from his then Prime Minister, Malcolm Fraser, who considered it very bad politics. Howard's successor as Treasurer, Paul Keating, became equally convinced of the merits of a consumption tax and almost succeeded in pushing it through until, of course, the rug was pulled out from him by his Prime Minister, Bob Hawke, who also feared the potential political blowback. The defeat of the then Liberal leader, John Hewson, at the supposedly unlosable 1993 election on the back of an anti-GST campaign by Labor seemingly put paid to any prospect of meaningful tax reform in Australia for a generation. Yet just five years later, Prime Minister John Howard secured an electoral victory, albeit narrowly, on the explicit undertaking to introduce a goods and services tax. What happened in the course of those five years? It is not as though the idea of the consumption tax suddenly became popular or even that it was necessarily better understood by the electorate. Rather, over the years, even throughout what seemed to be endless delays and defeats, the momentum for reform built. Even if the idea itself was not a popular one, Australians came to accept the need for reform in the interest of their families' and their nation's economic wellbeing. Although the examples provided above relate to economic policy, I believe the principle is just as applicable to the reform of section 18C and strengthening the protections of freedom of speech in Australia. The evidence is clear. When Senator Day introduced his private senator's bill in 2014, my decision to be a co-sponsor was perceived by some as risky. In fact, there were only two Liberal senators to act as co-sponsors, yet in the little over a year that has elapsed since we have seen more and more Liberal senators come out in support of Senator Day's proposal to remove the words 'offend' and 'insult' from the provisions of section 18C. Senator Canavan: And Nationals Senator Smith: And, indeed, Nationals—thank you very much, Senator Canavan—joining with Liberals and Senator Day and Senator Leyonhjelm. In fact, there are now 13 senators— Honourable senators interjecting— The ACTING DEPUTY PRESIDENT ( Senator O'Neill ): Senator Smith will ignore the interjections. Senator SMITH: In Canberra I am a very strong coalitionist. In Western Australia I am a very strong Liberal. In fact, there are now 13 senators on the record in support of reforming section 18C, including one from the Labor Party. That is nearly one-fifth of the chamber for a bill that, officially, does not have the backing of the of either major party. Why is this the case? I believe it goes back to the sentiments expressed by Victor Hugo: the opponents of reform may shriek loudly, but their sound and fury is not enough to overpower an idea whose time has come. It has been an instructive experience to sit in the Senate on those occasions when reform of section 18C has been debated and to listen to the opponents of the reform mount their arguments. Generally speaking, their opposition is based around three flawed approaches. The first is that supporters of reform wish to give the green light to race hate speech. That idea is so patently ridiculous that, frankly, it does not deserve the dignity of a response. The opposition's next tactic is to highlight various contemporary examples of racist statements or behaviour and suggest that reform of 18C will simply encourage such acts. The Cronulla riots are generally included near the top of the list of examples. Again, this arguments is self-defeating. Section 18C in its present form was on the statute books for a decade before the Cronulla riots occurred. It manifestly did nothing to prevent them. Those that were charged as a result of the riots were charged under various criminal statutes and not the Racial Discrimination Act of 1975. Those riots, which were ugly and unacceptable, proved the point. If someone is so irrational, so filled with prejudice and hatred, that they engage in the sort of behaviour that encourages the followers of a religion, a political party or some other organisation to physically attack or otherwise degrade those of a different view, I am not sure why people think two words in a piece of legislation are going to stop them. The final strategy was to try and paint reform as an obsession of right-wing ideologues who are out of step with mainstream thinking. This actually is a very important and critical point. The problem here is that advocates for reform of section 18C do not hail exclusively from the right of the political spectrum. It is hard to affix the label of 'right-wing zealot' to the Chief Justice of the High Court, Justice Robert French, who noted in 2004 that the words 'offend' and 'insult' were a long way removed from the mischief that the Racial Discrimination Act was intended to address. It would probably come as a surprise and as news to activist lawyer Julian Burnside QC that he is an irredeemable conservative ideologue, yet he too has said: The mere fact that you insult or offend someone probably should not, of itself, give rise to legal liability. Sarah Joseph, the director of the Castan Centre for Human Rights Law at Monash University has noted that, Feelings of offence and insult are not serious enough to justify restrictions on the human right tofreedom of speech … There are other prominent Australians who would self-identify as being on the left or at least not being on the right of politics who have backed reform, among them David Maher, Jonathan Holmes and The Age newspaper. There are a good many eloquent words spoken on this subject right across the political divide. Some of my favourites come from 1994, when the original parliamentary debate on the introduction of what is now known as section 18C was occurring. They are worth repeating today: … under this bill all that is necessary to create a civil offence is for someone to feel offended, insulted or humiliated. In other words, all that is necessary to create a civil offence under this bill is for someone to have hurt feelings. … … … … the best argument against bad taste is not to make it illegal. What we need to combat racism is argument, not censorship; we need exposure, not suppression. The speaker in that instance was the member for Warringah, former Prime Minister Tony Abbott. Indeed, the current Prime Minister, Mr Turnbull, has expressed support for the aims of what is contained in Senator Day and Senator Leyonhjelm's bill. In May of last year, the now Prime Minister said that the proposal to remove the words 'offended' and 'insult' from 18C is: … broadly supported and I was very comfortable about that, I didn't think that would have any negative impact. Earlier in my contribution I mentioned my fellow Western Australian colleague, Labor's Senator Joe Bullock, as also being someone inclined to support reform in this area. Indeed, Senator Bullock used his first contribution in this place to underscore that point when he told us in his first speech: To be tolerant of your views I do not need to pretend that you are just as right as I am but rather to accept that you have a perfect right to hold a view I believe to be wrong, even if I find your view offensive. Plainly, this issue is not one that can be couched in traditional left-versus-right terms. Attempts to do so are disingenuous. However fervently the opponents of reform in the Australian Labor Party and elsewhere may wish this debate would go away, the plain fact is that it will not. The momentum for change is undoubtedly building, even if the pace is slower than some of us would like. Fundamentally, the parliament faces a pretty simple choice. That choice relates to how we view those we are sent here to represent. Either we trust in the basic decency and fundamental fairness of Australians or we do not. Either we believe that Australians are mature and intelligent enough to know racism and bigotry when they see it, and dismiss it, or we believe that Australians are helpless, unthinking rubes who need the government to protect them from things they find distasteful. Clearly, many senators opposite take a very dim view of those they are supposed to represent. They seem to believe that there is a pervasive culture of racism in our country, that the air crackles with bigotry and that the only thing stopping it are two words in section 18C of the Racial Discrimination Act. That is a view I reject. I think it is a view most Australians would reject. I believe Australians are fundamentally decent, open and tolerant. We can have disagreements on issues but in a respectful way. If passionate public debate on occasion gives rise to hurt feelings, my view is that that is a small price to pay for the privilege of living in a free society. In closing my contribution today, I would again say that I disagree with the premise of the motion before us. The government has done much to uphold freedom of speech and I am confident that in time, and with the support of this parliament, it will be able to do more.