22 March 2017




MATT ABRAHAM: Simon Birmingham, I think many people listening, and we had Barnaby Joyce saying people don’t stop him in the street asking about 18C, why is it chewing up so much of the Government’s attention and energy?

SENATOR SIMON BIRMINGHAM: Well it’s not chewing up the Government’s attention and energy, it’s one thing that the Government is taking action on. Now, our priority right now is to see our childcare reforms pass through the Parliament, and that’s certainly chewing up pretty much all of my time and energy today, and I’m sure probably tomorrow and beyond.

ABRAHAM: It doesn’t look like the priority does it – to an innocent observer?

BIRMINGHAM: Well, the Prime Minister and I were out at a childcare centre this morning talking about the reforms, they are absolutely at the top of our priority list in terms of legislation, but that’s not to say that a Government can’t walk and chew gum at the same time. We’re pursuing reforms to enterprise tax arrangements to try to encourage more investment across the Australian economy. We’re at any given point of time pursuing multiple changes, reforms and improvements, and this is just one measure.

BEVAN: Right, now at the moment it is illegal to ‘offend, insult, humiliate or intimate’ someone on the basis of their race, you want to change that and take out ‘offend, insult, humiliate’ and insert ‘harass’, that’s right? That’s it in a nutshell?

BIRMINGHAM: That’s the proposal coupled with some other changes that would put in a “Reasonable Person Test” to the legislation as well as a number of reforms to the procedure of the Human Rights Commission.

BEVAN: And you’re saying that we need to do this because free speech has been stifled ever since that was there?

BIRMINGHAM: Well we’re seeing, and particularly in the last year or two, you’ve seen increased incidence of this provision being abused and the provision not working as effectively as you might hope it to. You’ve had everything from young university students being put through a very costly, drawn-out process under it to satirical cartoonists having to defend their works under this provision. We think that putting ‘harassment’ in coupled with ‘intimidation’ is of course a clearer, more robust arrangement that can ensure there’s a law that people have confidence in, and that it achieves the objectives that are set out for it.

ABRAHAM: Penny Wong, why doesn’t the Labor Party give the Government what it wants on this, and then you can focus on the issues that you say really matter to people?

SENATOR PENNY WONG: Because this is important to people, this is a principle. I mean, what we have here is a Government that very sadly has decided to make it easier in this country to insult, humiliate or intimidate people on the basis of their race. And one of the questions that I’d invite Simon to answer, that the Prime Minister has never answered, which is what it is you want people to be able to say now that they can’t? What is it that you want them to be able to say? I’d invite him to answer that.

BEVAN: Simon Birmingham?

BIRMINGHAM: Well, I want satirical political cartoonists to be able to publish their cartoons without being dragged through legal, lengthy litigation defences. I want university students to be able to raise concerns if they think that on racial grounds…

WONG: Both of those complaints were dismissed.

ABRAHAM: Well, Bill Leak’s dead and some say that the stress of this may have contributed to that; he wasn’t an old man, and the university students were dragged through a very expensive and harrowing legal process. Is that not something that needs fixing Penny Wong?

WONG: Well, there may be process issues that the Government could deal with, but this is not a process issue. This is lowering the bar, this is lowering the protections; it is weakening the protections against hate speech in this country. And there are two levels at which this operates, and this is so disappointing that moderate Liberals like Simon and Malcolm who have previously argued against this, are now doing what One Nation wants.

There are two levels at which this operates, one is what civil proceedings someone can take. But this is also about the signal that is sent. What signal is this Government sending to people of different ethnic backgrounds? What they are sending is that we think it’s okay for people to be able to say more humiliating things, more intimidating things to you than they do now. And it is no surprise that the ethnic communities as well as the legal community are openly against it.

BEVAN: Nick Xenophon what do you say?

SENATOR NICK XENOPHON: I say that the process has become the punishment in a number of cases, and we’re referring to the case of late Bill Leak; the accusers of the Queensland university students.

I will support; my colleagues will support changes to the process and that seems to be pretty much across the board in the Parliament, so that you don’t have those matters being dragged out before the Commission.

But, we do not support changes to 18C because one thing that’s lost on this debate is that Section 18D has very broad exemptions, so long as people are acting in good faith. They express a genuine belief held by the person making the comment in terms of it protects artistic works. It protects issues in the public interest. It’s a very broad defence. So long as we fix-up the process I think that will deal with the complaints that we’ve had about 18C.

ABRAHAM: Simon Birmingham, why not do that?

BIRMINGHAM: Well we are proposing to fix-up the process absolutely, but we also think that you will get far greater clarity and certainty, and ultimately a more successful and stronger arrangement by having ‘harassment’ as a factor alongside ‘intimidation’.

ABRAHAM: How would you define harassment?

BIRMINGHAM: Well, harassment is constituted and we’re making it clear in these changes that it can be constituted by a single act of harassment, but harassment involves areas of language and could involve some of the elements that are being taken out, could involve, of course the type of abuse that we don’t want to see and we want to make sure harassment in that sense is absolutely prevented along with intimidation. Penny mentioned ‘intimidation’ before; intimidation is not being removed from the changes here.

But, ultimately these measures here, harassment and intimidation, will provide a strong barrier; a clearer barrier that is more usefully, more clearly defined by the courts than the current provisions have been.

BEVAN: Senator Xenophon, the issue of penalty rates; yesterday the Senate was asked to support a motion condemning the cutting of penalty rates to up to 700,000 workers employed in retail, hospitality and pharmacies. Now of the three people who didn’t vote they’re all yours – that’s you, Kakoschke-Moore and Griff. Why didn’t the Xenophon senators vote on that motion?

XENOPHON: Because of the wording of the motion. Our position is we do not want to see penalty rates cut for existing workers. We’ll be making a submission to the Fair Work Commission and that’s our minimal position but we also are looking at the issue of how does it impact on future workers? So we’re still working through that. We know that existing workers shouldn’t be affected by these changes, particularly in a low wage growth environment.

BEVAN: Well why didn’t you support the motion then? Because if you want to protect penalty rates for existing workers you could’ve supported that motion? Because the motion was saying it’s bad that their penalty rates are being cut.

XENOPHON: Sure, but it also referred to future workers and the dilemma is do you throw out the history in this country since 1904 where you looked to the independent umpire to deal with these matters? And I’ve said, on many occasions that I stuffed up by doing what I did on penalty rates by introducing a bill several years ago. I was wrong. It was an approach that I’ve withdrawn from and I want to see what we can do with the Fair Work Commission in terms of them quarantining those existing workers from any cuts

ABRAHAM: Senator Wong does that wash with you?

WONG: Let’s be clear what the motion said: it referred to the decision and said, the Senate expresses its opposition to reductions in penalty rates that reduce the take-home pay of Australian workers now and in the future. Nick says he can’t support that because it is a motion that seeks to protect penalty rates of workers into the future. It’s a very clear signal to every South Australian that Nick is not prepared to defend penalty rates in the future

BEVAN: Well he is for existing people he’s just saying…

WONG: Yeah, exactly. So if you’re somebody who is going to enter the workforce or going to get a job in this sector, what Nick, I think, is saying from both refusing to support the motion and what he just said to you now, is that he doesn’t believe that he needs to ensure that the legislation protects your penalty rates which would otherwise have existed.

BIRMINGHAM: The whole motion was of course a political stunt. We have seen Bill Shorten, who as a trade union leader happily traded away penalty rates, happily gave big businesses sweetheart deals that go further than what the Fair Work Commission is proposing to do. In many ways all the Fair Work Commission is doing is levelling the playing field for small and medium sized businesses to be able to access the types of conditions, to be able to trade and open on a Sunday that many big businesses already enjoy thanks to sweetheart deals with trade unions, the likes of which Mr Shorten has endorsed. Bill Shorten went to the last election previously saying he’d respect the decision of the independent umpire, now we have motions criticising it. Of course it was a process that he commenced, he kicked off as Workplace Relations Minister.

BEVAN: And Senator Birmingham just before we leave, are you hoping still that the Parliament can deal with the issue of Same Sex Marriage rather than putting it to a plebiscite? Do you, in your heart of hearts, still hope that the Parliament can sort this out?

BIRMINGHAM: Well, I hope Parliament can support a plebiscite bill that can ensure all Australians can have their say.

BEVAN: Yes, but if that fails? And it looks like it will.

BIRMINGHAM: Well if that fails then of course we can always have discussions in the Liberal Party room about how such matters could be addressed in the future.

BEVAN: Which means you hope that if it fails, you can sort this out in the parliament before the next election?

BIRMINGHAM: Well, I hope that Mr Shorten, who, only a couple of years ago endorsed the idea of a plebiscite, lets the Australian people have their say.

WONG: Simon, why don’t you grow a spine? Seriously, we’re all so sick of this debate. You lost the plebiscite. You can rail about that if you wish, but an overwhelming majority of the Senate said no, including Nick, to his credit, and his team. The majority of the Australian people and the majority of the Parliament want it, why don’t you just have a vote.

BIRMINGHAM: Well, what you’re asking us to do Penny is to go against what we took to the last election.

WONG: Like 18C? That’s the same thing. You said no change to 18C at the last election…

BIRMINGHAM: No we didn’t.

WONG: .. but that’s been jettisoned as well. I mean the reality is you kept faith with that commitment. You put the bill up and it was overwhelmingly defeated. I wish the moderates would actually grow a spine on this.

BEVAN: Penny Wong, thank you for your time, Labor Senator for South Australia. Before that Simon Birmingham, Liberal Senator for South Australia and Nick Xenophon, leader of the NX Team.