|
senate vote 2017-03-30#3
Edited by
mackay staff
on
2017-04-07 04:55:53
|
Title
Description
- The majority voted against [Government amendments](http://www.openaustralia.org.au/senate/?id=2017-03-30.158.1) introduced by Liberal Party Senator [George Brandis](https://theyvoteforyou.org.au/people/senate/queensland/george_brandis). The amendments related to [amending section 18C](http://www.abc.net.au/news/2017-03-21/turnbull-denies-bowing-to-the-right-on-18c/8372186).
Senator Brandis explains that: "*The purpose of this amendment is to clarify the meanings of the words 'intimidate' and 'harass' in section 18C as it would appear, assuming the bill is passed.*"- Senator Brandis [explained that](http://www.openaustralia.org.au/senate/?id=2017-03-30.158.1): "*The purpose of this amendment is to clarify the meanings of the words 'intimidate' and 'harass' in section 18C as it would appear, assuming the bill is passed.*"
- Read more on [ABC News](http://www.abc.net.au/news/2017-03-30/18c-racial-discrimination-act-changes-defeated-in-senate/8402792).
- ### Motion text
- > *(1) Schedule 1, page 3 (after line 25), after item 4, insert:*
- > *4A Before subsection 18C(3)*
- > *Insert:*
- > *(2C) For the purposes of subsection (1), if an act done by a person consists of:*
- >> *(a) making a statement; or*
- >> *(b) making a comment; or*
- >> *(c) making a remark;*
- >> *(whether orally, in a document or in any other way), then the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass another person, even if the statement, comment or remark is not made in the presence of the other person.*
- > *(2D) For the purposes of subsection (1), if an act done by a person consists of:*
- >> *(a) making a statement; or*
- >> *(b) making a comment; or*
- >> *(c) making a remark;*
- >> *(whether orally, in a document or in any other way), then the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass a group of people, even if the statement, comment or remark is not made in the presence of one or more members of that group.*
- ### What does this bill do?
- The [bill was introduced](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/s1063) to:
- * *[amend section 18C](http://www.abc.net.au/news/2017-03-21/turnbull-denies-bowing-to-the-right-on-18c/8372186), which prohibits offensive behaviour based on racial hatred, to replace the words ‘offend’, ‘insult’ and ‘humiliate’ with ‘harass’ (resulting in the formulation ‘harass or intimidate’); and*
- * *provide that an assessment of whether an act is reasonably likely to harass or intimidate a person or group of persons is made against the standard of a reasonable member of the Australian community*.
- But as you can see from this division, this change to the wording of section 18C is controversial and there is a lot of opposition to it.
- According to the [explanatory memorandum](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Fems%2Fs1063_ems_b4e1870b-6673-4a96-999b-99b1d3799a07%22;rec=0), the bill would also:
- > *amend the complaints handling processes of the Australian Human Rights Commission (the Commission) under the Australian Human Rights Commission Act 1986 (the AHRC Act) and ... make minor amendments to the AHRC Act sought by the Commission to enhance its operation and efficiency*
|
|
senate vote 2017-03-30#3
Edited by
mackay staff
on
2017-04-07 04:40:36
|
Title
Bills — Human Rights Legislation Amendment Bill 2017; in Committee- Human Rights Legislation Amendment Bill 2017 - in Committee - Change 18C wording
Description
<p class="speaker">George Brandis</p><p>I move government amendment (1) on sheet HV208:</p><p class="italic">(1) Schedule 1, page 3 (after line 25), after item 4, insert:</p>- The majority voted against [Government amendments](http://www.openaustralia.org.au/senate/?id=2017-03-30.158.1) introduced by Liberal Party Senator George Brandis. The amendments related to [amending section 18C](http://www.abc.net.au/news/2017-03-21/turnbull-denies-bowing-to-the-right-on-18c/8372186).
- Read more on [ABC News](http://www.abc.net.au/news/2017-03-30/18c-racial-discrimination-act-changes-defeated-in-senate/8402792).
- ### Motion text
- > *(1) Schedule 1, page 3 (after line 25), after item 4, insert:*
- > *4A Before subsection 18C(3)*
- > *Insert:*
- > *(2C) For the purposes of subsection (1), if an act done by a person consists of:*
- >> *(a) making a statement; or*
- >> *(b) making a comment; or*
- >> *(c) making a remark;*
- >> *(whether orally, in a document or in any other way), then the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass another person, even if the statement, comment or remark is not made in the presence of the other person.*
- > *(2D) For the purposes of subsection (1), if an act done by a person consists of:*
- >> *(a) making a statement; or*
- >> *(b) making a comment; or*
- >> *(c) making a remark;*
- >> *(whether orally, in a document or in any other way), then the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass a group of people, even if the statement, comment or remark is not made in the presence of one or more members of that group.*
- ### What does this bill do?
- The [bill was introduced](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/s1063) to:
- * *[amend section 18C](http://www.abc.net.au/news/2017-03-21/turnbull-denies-bowing-to-the-right-on-18c/8372186), which prohibits offensive behaviour based on racial hatred, to replace the words ‘offend’, ‘insult’ and ‘humiliate’ with ‘harass’ (resulting in the formulation ‘harass or intimidate’); and*
- * *provide that an assessment of whether an act is reasonably likely to harass or intimidate a person or group of persons is made against the standard of a reasonable member of the Australian community*.
- But as you can see from this division, this change to the wording of section 18C is controversial and there is a lot of opposition to it.
- According to the [explanatory memorandum](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Fems%2Fs1063_ems_b4e1870b-6673-4a96-999b-99b1d3799a07%22;rec=0), the bill would also:
- > *amend the complaints handling processes of the Australian Human Rights Commission (the Commission) under the Australian Human Rights Commission Act 1986 (the AHRC Act) and ... make minor amendments to the AHRC Act sought by the Commission to enhance its operation and efficiency*
<p class="italic">4A Before subsection 18C(3)</p><p class="italic">Insert:</p><p class="italic">(2C) For the purposes of subsection (1), if an act done by a person consists of:</p><p class="italic">(a) making a statement; or</p><p class="italic">(b) making a comment; or</p><p class="italic">(c) making a remark;</p><p class="italic">(whether orally, in a document or in any other way), then the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass another person, even if the statement, comment or remark is not made in the presence of the other person.</p><p class="italic">(2D) For the purposes of subsection (1), if an act done by a person consists of:</p><p class="italic">(a) making a statement; or</p><p class="italic">(b) making a comment; or</p><p class="italic">(c) making a remark;</p><p class="italic">(whether orally, in a document or in any other way), then the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass a group of people, even if the statement, comment or remark is not made in the presence of one or more members of that group.</p><p>The purpose of this amendment is to clarify the meanings of the words 'intimidate' and 'harass' in section 18C as it would appear, assuming the bill is passed. The bill proposes to expand the meanings in two ways. In the first place, there is within the bill an expanded meaning given to the term 'harass' so that it is clear that a single act may constitute harassment and that it is not necessary for there to be a multiplicity or series of acts for the prohibition against harassment to be violated. That, of course, depends on the circumstances of the particular case.</p><p>This amendment adds a further clarifying definition to the words 'intimidate' and 'harass' by making it clear that those prohibitions may be violated even if the statement, comment or remark said to constitute intimidation or harassment is not made in the presence of the other person. There are many circumstances which we can envisage where conduct may be intimidating or constitute harassment even though it is not made face to face. An obvious example is stalking a person through social media and uttering intimidating or harassing remarks through social media. Another example would be delivering documents or letters through the mail or sending an email to a person which contained intimidating or harassing conduct.</p><p>To put the matter beyond doubt, this amendment makes it clear that conduct of that kind and indeed any conduct not in the presence of the person who is the victim which would otherwise constitute harassment or intimidation does constitute harassment or intimidation, notwithstanding that it was not made in the presence of the victim.</p> <p class="speaker">Cory Bernardi</p><p>Attorney, with respect to the redefinition—and I call it that because it extends the dictionary definition of 'harass', because you are referring to it as a single instance rather than multiple instances, which is common across most of the definitions—there is also a reference, as I understand it, and please correct me if I am wrong, such that someone can be harassed even if they are unaware of the actual act itself. Is my understanding of that correct?</p> <p class="speaker">George Brandis</p><p>I am not seeing that, Senator Bernardi. I should make it clear that that part of the definition is already in the bill. It is not part of the government amendment that I am moving now. But just to clarify the point, and to go to the section of the bill to which you refer, the reason that amendment was made is that there is in fact some ambiguity both in the case law and in the dictionary definition of whether harassment requires more than one act. In the <i>Macquarie Dictionary</i>, the word 'harassment' is defined exclusively in terms of a series or multiplicity of acts, but in the <i>Oxford English Dictionary</i>, the word 'harassment' is defined in at least one of its senses as conduct which might be constituted by a single act. The same is the case in the case law. That is why we have clarified the definition. But in relation to the specific question you asked, I am not aware of the genesis of that proposition.</p> <p class="speaker">Cory Bernardi</p><p>When you are referring to the genesis of the proposition, I have been advised that in respect of your amendment for 'harass' in regard to the bill, someone can still claim or lodge a claim for being harassed even though they were unaware of the actions until some time subsequent, so it did not directly impact upon them. Is this correct?</p> <p class="speaker">George Brandis</p><p>I am always a bit cautious about dealing with hypothetical cases in a parliamentary debate. However, it is certainly not the intention of the definition of 'harass' or, indeed, 'intimidate' that the government has included to include conduct of the kind that you refer to. So that harassment according to its ordinary speech meaning—which is as the explanatory memorandum explains, and subject to the two clarifying definitional amendments to which I have referred—I would have thought requires knowledge by the victim of the harassment of the fact of the harassment taking place.</p> <p class="speaker">Jacinta Collins</p><p>To facilitate the committee stage while Senator Bernardi is on the phone—he may still have further questions—I can indicate briefly, and consistent with the comments of Labor senators during the second reading debate and indeed our amendment with respect to schedule 1, which we are yet to come to, that Labor opposes all changes to section 18C of the Racial Discrimination Act, including the offence of harassment. This amendment cannot cure the defects in the government's approach to watering down the longstanding protections against racial hate speech.</p> <p class="speaker">Nick McKim</p><p>I indicate that the Greens, as we have consistently said over a long period of time, do not support any changes to section 18C of the Racial Discrimination Act, and, consistent with that position, we will not be supporting any of the amendments that the government is moving to its own amendment bill that itself seeks to amend section 18C. In doing so, we will maintain absolute consistency in our view that there has been no case made by the government for a change to section 18C, none whatsoever, despite lengthy and at times acrimonious debate in this place and the broader Australian community. We have listened to multicultural Australia. We will stand shoulder to shoulder with them. They have asked us to support retaining section 18C precisely as it is currently worded. On that basis we will be opposing this amendment.</p> <p class="speaker">Christopher Back</p><p>Attorney-General, can you explain why the word 'harass' is now to be included where previously it was not. Can you comment on or explain or confirm the fact that the inclusion of harassment and intimidation refers to the desire of the person accused of harassing and intimidating to actually have an impact on the behaviour of the person against whom the harassment and/or the intimidation has been levelled, in contrast to offend or to insult, which is more associated, as I understand it, with the offence to the person but without having an effect on the behaviour or the daily activity of the person who would be the subject of the offence or the intimidation.</p> <p class="speaker">George Brandis</p><p>Senator Back, the simple answer to the first part of your question is: because the inclusion of the word 'harass', which is a grievous shortcoming in section 18C as it currently stands, is intended to overcome that shortcoming. The concept of harassment, which is very commonly used in antidiscrimination statutes, both in Australia and overseas, captures the notion of conduct which impinges on a person in an unwelcome manner so as to limit or restrict their freedom. It is in a sense broader than 'intimidate', because the concept of intimidation involves causing fear in the person to whom it is directed. It is possible to imagine conduct that constitutes harassment but does not constitute intimidation, because not every person who is harassed is made fearful, but that does not mean that their freedom, their amenity, their life is not in some way vexed or annoyed or a nuisance is made to them by the conduct concerned.</p><p>In relation to your second question, Senator Back, it is not an element of this provision that the offender, the person whose conduct is prohibited, has any particular motive. There is no requirement, as in the criminal law, of a guilty mind, as it were. There is no requirement of malice. There is no requirement that the conduct be other than conduct which meets the definitions of 'intimidate' or 'harass'. But the reaction of the person who is the victim—and this goes, so far as 'harassment' is concerned, in part to Senator Bernardi's question—is relevant, so that, if a person, for example, were oblivious to or unaware of conduct, it would be difficult to see how that were harassing if it had no effect on them, or intimidatory if it did not cause fear in their mind.</p><p>Anyway, the overall answer to your question is: we are trying to bring this statute more closely into conformity with discrimination law best practice, with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. Section 18C, regardless of the rhetorical claims made by those who oppose what the government is trying to do, does not do that. These amendments make section 18C a more fit, suitable and better expressed protection against racism.</p> <p class="speaker">Christopher Back</p><p>Minister, in your second reading speech you made the observation that there is no other jurisdiction in the world that has legislation at the moment equivalent to 18C. Could you explain to the chamber what protections there are in other jurisdictions equivalent to our own that give the right of freedom of speech whilst at the same time protecting those who might otherwise be harassed and/or intimidated?</p> <p class="speaker">George Brandis</p><p>Senator, I must confess to you that I am not familiar with the anti-racial discrimination laws of all 178 states party to the convention. But I can say that there is none which deals with the issue the way section 18C does. The concept of intimidation, the concept of harassment and the concept of vilification are the core concepts in legislation of this kind, which is why the government has adopted them.</p> <p class="speaker">Cory Bernardi</p><p>Attorney, I just want to go back to the clauses in your amendment. It says:</p><p class="italic">… the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass another person, even if the statement, comment or remark is not made in the presence of the other person.</p><p>How can you be harassing someone if you are not in contact with them or in the presence of them?</p> <p class="speaker">George Brandis</p><p>That is why we are using the expression 'in the presence of'. The example I gave in introducing the amendment was the use of social media as a tool of harassment. We are well familiar with Twitter trolls, for example. We are well familiar with people who send intimidating or harassing text messages. That could very easily constitute harassment, even though not made in the presence of the victim.</p> <p class="speaker">Barry O'Sullivan</p><p>Senator Brandis, I apologise in advance if you or anyone else in the chamber had to endure my presentation earlier, on the second reading, but I will take a little bit of time to lay down the basis for my question, and I will value your comments.</p><p>I have five or six matters, but I will deal with them one at a time. My first area of interest is to understand what changes will occur as a result of these amendments to the process. I might just set the scene. I spoke earlier, as did a number of other speakers, with respect to the QUT issue, where, as you know, there were three students who became entangled in the process over a period of time. It would appear to me—and you may contradict me—as if there were an absence of natural justice in some aspects of how that particular case was managed. In particular, it would seem that there was a long period of time where at least one of the students, and perhaps all of them, was not even aware that the process was in train, thereby of course denying them any ability they may have had, with a contemporary memory, to be able to, for want of a better term, defend themselves, or at least give instructions to those who might provide them with professional advice.</p><p>As it went on, it is said that they received pro bono assistance from legal identities in the process. Quotes have been made that, had they needed to engage legal assistance, the cost of such legal support might have been greater than $10,000 per person. As I said earlier, I found, based on my experiences in life in dealing with lawyers—and I do not want to reflect adversely on lawyers; I am surrounded, it would seem—</p> <p class="speaker">Christopher Back</p><p>Why?</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
|