When NO means YES

Senate estimates hearings ... The pedantic mind of Soapy Brandis ... Freedom Boy has the floor ... Drafty exposure ... Polly Peck reports ring side at senate estimates 

Brandis: NO/YES

A VARIETY of excruciating moments emerged from the June hearings of the budget estimates by the Senate's Legal and Constitutional Affairs Legislation Committee. 

The star combatants are attorney general Senator Soapy Brandis (Qld) and Labor Senator Lisa Singh (Tas. ALP). 

What is so enjoyable is the loathing they have for each other. Singh gets right under Soapy's skin, so that the Queensland toad is reduced to a ferment of nit-picking and pedantry all wrapped in his trademark pomposity.  

Brandis frequently objects to Singh's questions on the ground that they are "dishonest".

The rather compliant chairman of the committee Senator Ian Macdonald (Lib. Qld.) obliges by ruling them out of order. 

In the latest estimates session of the committee Singh asked the Race Discrimination Commissioner, Tim Soutphommasane, what seemed like a straightforward question. 

Senator Singh: Can you provide a brief summary, in the time I have left to me, of the impact of the government's proposed changes to the race hate protections in the Racial Discrimination Act?

Senator Brandis: On a point of order, Mr Chairman, I object to that question. The senator has characterised, in a very tendentious way, the legislation and the government's intentions. Those intentions, as we learnt yesterday after a long exchange, have not yet been finalised. So I think it is - 

Chair: It is hypothetical.

Senator Singh: I can rephrase the question, Chair. I am happy to rephrase the question.

Senator Brandis: Not only is it hypothetical but the premise on which the question has been put to the commissioner is just wrong. But I can tell you -

Chair: Thank you, Senator Brandis. Senator Singh, I would rule the question out of order, but do you want to rephrase it?

Senator Singh: I will rephrase it. Could you provide a summary of the impact of the exposure draft by the government that is currently out for consultation and what effect it would have on race hate protections in the Racial Discrimination Act?

Dr Soutphommasane: Senator, I have -

Senator Brandis: That is the same question that I have objected to. 

Senator Singh: No, it is not.

Senator Brandis: It is exactly the same question.

Senator Singh: I did not say that it was a proposed change; I said that it was the exposure draft.

On and on it went. 

Soap knows that Doc Soutphommasane thinks his "exposure draft" stinks, so there was no way he wanted to hear those views reventilated in the committee. 

Brandis was so incensed that Singh asked a question about "proposed changes" to the RDA rather than "exposure draft" that Soutphommasane was not allowed to respond to such a "dishonest" question. 

Wilson: personally and morally affrontedIt was a completely different story when Freedom Boy, Brandis' pal and his hand-picked human rights lapdog Tim Wilson, came forward to answer questions: 

Senator Brandis: Mr Wilson, I should point out to you, has made a submission and I do not think there should be any problem with inviting Mr Wilson to speak to the matters addressed in his submission.

Senator Wright (Greens SA): Perhaps I could rephrase -

Senator Singh: It was not all right for Dr Soutphommasane.

Senator Brandis: No. You asked him a question which was a dishonest question because it was based on a false premise.

Senator Wright: Mr Wilson, do you still support altering the Racial Discrimination Act as originally proposed by the Attorney General? You made a submission and I do not know whether it is public, but presumably it is. 

Mr Wilson: It is public.

Senator Wright: Do you still support altering it? Have you changed your views?

Mr Wilson: I have made it quite clear in the public domain that I support changes to the Racial Discrimination Act. That includes the submission which is available on the website, which is publicly accessible. I have not changed my view. But I have said that the exposure draft that was put out by the government is a good basis on which to start the discussion around how it should be changed. Now I am interested in seeing what the Attorney General comes up with next. 

Senator Wright: And what change -

Chair: Thank you, Mr Wilson. Thank you, Senator Wright.

Over and out for Senator Wright. 

In response to a question from Liberal senator Zed Seselja (Lib. ACT) Freedom Boy waxed on about how the proposed changes were never about complete free speech about race. 

Oh no, it was "much more nuanced than that". And, added Wilson, there were ways to regulate free speech outside the law, "which I would argue can be sometimes more pervasive and more effective". 

More of that in a minute ... 

It was not long before the "bigot" issue emerged. 

Freedom Boy was asked by Senator Singh whether people have a right to be bigots? 

Mr Wilson: ... people have an absolute right to freedom of thought, which ranges from the most wonderful thoughts to some of the most awful ones.

Senator Singh: I kind of take that as a yes.

Mr Wilson: No. The answer is: people, in terms of freedom of speech, have a right of freedom of speech within limitations. We can have a discussion around what those limitations are. That ranges from things that are nice that people say and sometimes it is things that people say that are unpleasant.

YES/NO: what could be clearer? 

See: Hansard senate estimates May 29, 2014 

*   *   *

In fact, we know that Human Rights Commissioner Wilson is completely in favour of people not only thinking, but expressing bigotry. 

Here he was in January 2013, on an earlier trip to the senate legal and constitutional affairs legislation committee, when the previous government's anti-discrimination legislation was being discussed.   

In those days Freedom Boy was the man in charge of climate policy at the IPA (Institute for Paid Advocacy) and only had "not read the Racial Discrimination Act recently". 

He was not sure that there was a "human right against discrimination". 

Senator Wright picked up an issue earlier raised by Brandis and asked Wilson about an Aboriginal person being told by a publican, "we do not serve blacks here". Should there be not be a law against that treatment? 

Wilson: My personal and moral affront is unambiguous about that sort of conduct. Part of the unintended consequence of anti-discrimination laws is that, by not allowing that person to show their bigotry and their hatred towards somebody else, the public cannot boycott that venue and hold people to account for their conduct. 

This is part of the problem. I understand the hypothetical. I understand why it is so outrageous, because I share that view, but will anything necessarily be achieved by that in terms of advancing the interests of those persons? No. It means a racist gets more money. If you think that is a good outcome then maybe there is something to be said for imposing morality through law. I am not such a big fan of giving racists money. 

Through the layers of verbal fog, Freedom Boy is saying he is not in favour of a law that prevents Aboriginals being kicked out of pubs by racist publicans. Just leave the remedy to the market place. 

The issue of what would happen if no-one boycotted the pub was not explored. 

*   *   *

So why haven't the 5,557 submissions in response to Brandis' exposure draft amendments to the Racial Discrimination Act been made public? 

Do you think for one second the submissions would remain under wraps if they were running strongly in favour of Soapy's "draft exposure"? 

The government has not even published those submissions where consent has been given.  

Some have published their submissions, off their own bat: the Human Rights Commission, the Law Council, Freedom Boy and the Institute for Paid Advocacy. 

Brandis slipped and slithered all over the place, saying it was not an "opinion poll" and that the aim was to get ideas from the community. 

Of course, that was not the original intention at all. Brandis initially prepared his amendments as though that would be the final word. 

It was only when they went to Cabinet and senior minister saw how potentially shocking the whole plan was, that the amendments transmogrified into an "exposure draft", inviting public comments. 

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. 

Needless to say, the call for submissions gave no such explicit undertaking at all.  

However, we did learn that people who hurl racial abuse on buses and trains would be exempt from any liability under Brandis' free speech scheme: 

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.

*   *   *

Lisa Singh: getting on Soapy's wick

The attorney general made it clear he didn't much like the advice provided to former NSW Premier Barry O'Farrell by Sydney silk Arthur Moses. 

It was too "emotional", therefore no good. 

Senator Singh: That is why I do not understand why you do not just drop the changes altogether. I want to refer you to Arthur Moses QC, who provided some advice to the former Premier Barry O'Farrell, in relation to your proposed exposure draft. 

Senator Brandis: I had read Mr Moses' opinion. I think it is wrong.

Senator Singh: You think it is wrong.

Senator Brandis: Not only do I think it is wrong, but I will tell you, Senator Singh, that I was recently at an event which Mr Arthur Moses QC gave an extremely emotional speech about this issue. One thing we know is that good legal advice is clinical and it is analytical, and it is well informed by the law; it is not emotional. I do not think that Mr Moses' advice is valuable legal advice. 

Senator Singh: If Mr Moses became emotional I think that shows his sense of humanity, Minister. 

Chair: Do you have a question? 

Senator Singh: Yes I do have a question. In relation to Mr Moses' advice - 

Senator Brandis: I have read the advice, Senator Singh, and the point I would make to you is that a person who happens to be an SC cannot state a political position, or author a political tract, and then dress it up as legal advice merely because it is described as an opinion. What Mr Moses has given us is a political opinion, not counsel's advice. 

See: Hansard Senate estimates Wednesday, May 28, 2014  

*   *   *

Finally, I want to bring you this delicious slice from the February estimates hearings of the Legal and Constitutional Affairs Legislation Committee. 

It's another instructive instance of NO really meaning YES. 

From the Monday, February 24 Estimates Hansard:  

Senator Singh: You have visited an Indigenous community legal centre?

Senator Brandis: I have given you my answer, and the answer is yes.

Senator Singh: Which one have you visited?

Senator Brandis: I told you a moment ago that as recently as Friday I visited Caxton, who extensively -

Senator Singh: You told me that you went to a Caxton function.

Senator Brandis: At a function they hosted. Their practice in Indigenous justice is one of the most extensive practices in Queensland.  

Senator Singh: I am asking if you have actually visited an Indigenous community legal centre, not gone to a function.

Senator Brandis: I think the Caxton Legal Centre would regard itself as, among other things, having support for Indigenous people among one of its most important functions.

Senator Singh: I will take that as a no.

Senator Brandis: It is not a no; it is a yes.