Senator Paterson on RN Breakfast with Fran Kelly

31 Jan Senator Paterson on RN Breakfast with Fran Kelly

Tuesday 31 January 2017

Radio National Breakfast

Subjects: 18C, Trump immigration policy

Fran Kelly:

Well those who support watering down the anti-hate laws in the Racial Discrimination Act here have received a bit of a boost this morning. Polling commissioned by the conservative think tank, the Institute of Public Affairs or the IPA, shows that almost one-in-two people support removing the words ‘insult’ and ‘offend’ from section 18C of the act, which also makes it an offence to  humiliate and intimidate a person based on their race. James Paterson used to work for the IPA, these days though he’s a Liberal senator in Victoria and a member of the federal parliamentary committee established last year to look at changing the laws. The committee has already received more than 11,000 written submissions, so interest is high in this issue, and this week the committee is conducting hearings across the country. Senator Paterson, welcome to RN Breakfast.

Senator James Paterson:

Thank you for having me, Fran.

Fran Kelly:

You worked for the IPA, as I mentioned, before you joined the Federal Parliament. The IPA has just released polling showing 48% of people want ‘insult’ and ‘offend’ removed from 18C. Why do people feel they don’t have freedom of speech in this country right now?

Senator Paterson:

Well it’s a very encouraging polling result, Fran, and it also shows that only 36% of Australians are opposed to removing those two words from 18C. I think the reason that a lot of Australians feel that way is that they’ve seen some pretty high profile court cases over the last few years which have really raised questions about whether 18C does restrict free speech. In particular, most recently, the Queensland University of Technology students case, which although was resolved in the favour of the students, took a three and a half year torturous legal process simply for a few Facebook comments that they posted. I think any Australian watching that would think ‘I don’t have the means or the wherewithal to go through a three and a half year court process just because said something on Facebook’.

Fran Kelly:

But in the end, that court process failed. Now you can argue it shouldn’t have happened but the law, as Tanya Plibersek earlier pointed out, there are exemptions offered within section 18D of the act – artistic works, scientific debate, fair comment on matters of public interest are exempt if they are done or said reasonably in good faith. Why doesn’t that cover enough for freedom of speech?

Senator Paterson:

Because I think we’ve learned following the Andrew Bolt case in 2011 that those exemptions in 18D are insufficient. What happened in the Andrew Bolt case is well known for at least half of what happened. Most people say Andrew Bolt was not available for a free speech exemption because he made errors of fact in his piece, and that is true – the judge certainly did find errors of fact, but the judge also found that he wasn’t eligible to use 18D because of the tone of his article including the fact that he used sarcasm, that he used gratuitous asides and because of things he wrote between the lines. Now I personally think it’s a very disturbing thing that in a free country if a judge doesn’t like the tone of your journalism then you’re not eligible for a free speech defence.

Fran Kelly:

And maybe a lot of people agree with you but the Andrew Bolt case is one case. There are many cases that have been upheld as a breach of 18C that most people would agree with, that were outrageous. I mean, should we change a whole law – water down a whole law – on the basis of one case?

Senator Paterson:

That’s a fair point Fran and that’s why although many people would prefer to repeal 18C entirely, I think a reasonable compromise option is to only remove the words ‘offend’ and ‘insult’ and leave ‘humiliate’ and ‘intimidate’. Effectively what we’ve heard that will do from evidence to the committee is that it will raise the bar, it will make it slightly more difficult to prove cases but it will still have a pretty robust protection against the kind of things no one wants to see. The kind of racial abuse that we hear about from time to time that no Australian wants to see. So hopefully what we’re trying to do as a committee is to make sure there are no more QUT cases. We don’t want students going to court for three and a half years because they’ve vented some stream on Facebook but of course we do want people who are saying outrageous things – hateful things, inciting violence for example – to be held accountable for that.

Fran Kelly:

Basically though, what you’ve just told us is that it is a forgone conclusion. You’ve made up your mind already about 18C; you strongly support its reform. There’s 11,000 submissions so far to this committee, presumably they don’t all agree with you. What’s the point of you being on the committee or having this committee if you say what you’re trying to do is prevent those cases – in other words change the law? Do you come with an open mind or not?

Senator Paterson:

Well, Fran, there’s 10 members of the committee including 5 from the Coalition and of those Coalition members there are people in favour of reform and against reform, and there are people like me who strongly support reform and believe we need more free speech, but who are open-minded about how to achieve that, and one of the questions I’ve been asking people who appear before the committee this week is what is there view about what is the best way to protect free speech.

Fran Kelly:

So you’re open-minded to the extent that you would accept that taking out some of those words like ‘insult’ and ‘offend’ might not be necessary?

Senator Paterson:

There are some people who have suggested other changes, for example changes to 18D to make it more widespread or to replace all four words in 18C with four entirely different words that were better targeted so I’m open to all good ideas to solve the problem, but I do believe there is a problem which is that freedom of speech is not being protected by 18C.

Fran Kelly:

Okay, so just to be clear, if the bulk of evidence suggests that beefing up 18D is better than watering down 18C, you could be persuaded of that?

Senator Paterson:

I’m open to considering it but one of the limitations with that approach though is that 18D is really only useful once you’re already in court and defending yourself and it has been proven that you’ve breached 18C. That’s not actually very helpful for most people, so it’s one of my reservations but I’m willing to hear evidence about it.

Fran Kelly:

Further in this vain of it being a forgone I noticed that the chair of the of the committee, fellow Liberal Senator, Ian Goodenough, talked about how resentful people are at the culture of political correctness stopping them from speaking their mind. Do you credit the coming of Donald Trump for this growing sense or unshackling political correctness?

Senator Paterson:

I don’t think so. I think concerns about 18C have been around for a long time, at least since the Andrew Bolt case, but actually in 1995 when these laws were introduced the then opposition led by John Howard voted against them and thought that they were a step too far and threatened free speech. And believe it or not the lone Green Senator in the parliament of the day thought that it was an unreasonable restriction on free speech so this is something that actually crosses the political aisle. It’s not an ideological issue – we see people like David Marr, Jonathan Holmes, Warren Mundine, people not typically associated with the conservative side of politics raise concerns about this law.

Fran Kelly:

You’re listening to RN Breakfast, our guest is Liberal Party Senator James Paterson. It’s fourteen past eight on Breakfast. The Prime Minister is being roundly criticised for not condemning Donald Trump’s immigration ban. Angela Merkel, Theresa May saw fit their mind. Do you think our Prime Minister should have spoken out against it?

Senator Paterson:

I wouldn’t support introducing a policy like that in Australia. I don’t think it’s the right approach for Australia but I think the Prime Minister is absolutely right to say that US immigration policy is a matter for the United States and over time Australia’s immigration policy has been criticised by many countries and we still persisted with our tough approach and I think that’s appropriate.

Fran Kelly:

Yeah but it has been criticised, that’s the point. I mean, Tanya Plibersek said it’s about upholding Australian values. Do you think that an Australian leader, in this case or other cases, should speak out for out for our values if we see similar values being trashed – watered down – in another country?

Senator Paterson:

I think that’s a matter of judgement for the Prime Minister but I think he’s made the right call. I think in this instance he’s made it clear that this is not a policy he would seek to introduce in Australia but it’s a policy that’s a matter for the United States government. It’s not a matter for the Australian government.

Fran Kelly:

But is it so that leaders of our government – leaders of our country – should never speak out when we see things that we might view as universal values and value those universal values being trashed?

Senator Paterson:

No I think it’s a judgement call and I think there are times where it is appropriate, and I think in this instance the Prime Minister decided it’s not appropriate and I think that’s a reasonable response.

Fran Kelly:

But you personally would not support this policy?

Senator James Paterson:

I wouldn’t support introducing it to Australia because I think it’s a bit of a blunt instrument. Certainly I support a very strong immigration system which very carefully selects migrants for Australia but saying that all people from one country are not appropriate to migrate to Australia I don’t think is an approach that I would take.

Fran Kelly:

James Paterson, thank you very much for joining us.

Senator Paterson:

Thank you for having me, Fran.

[ENDS]

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