Interview on ABC Adelaide Breakfast with Matthew Abraham and David Bevan
Racial Discrimination Act; Turnbull Government’s plan to make early childhood education and care more affordable, accessible and fairer; Penalty rates; Marriage equality 

Matthew Abraham: Super Senator Wednesday today. When one senator’s barely enough, we’re bowling up three. Liberal Senator for South Australia, Education Minister, Senator Simon Birmingham, welcome. 

Simon Birmingham: Good morning. You can never have enough senators. 

Matthew Abraham: [Laughs].

David Bevan: Well, we might put that out to our listener [sic], but thank you very, Simon Birmingham. Penny Wong.

Matthew Abraham: There are a few Roman Emperors who had different takes on that. Senator Penny Wong.

Simon Birmingham: As we count the numbers in the Senate, it’s always important to have enough. 

Penny Wong: [Talks over] G’day, how are we all? Good to be with you. 

Matthew Abraham: Good to have you with us, Senator Penny Wong. Labor Senator, Shadow Minister for Foreign Affairs. Simon Birmingham is the Education Minister, and Nick Xenophon, Leader of the NXT Party. Good morning, Nick Xenophon. Senator. 

Nick Xenophon: Good morning, Why is it that I think of going to the dentist whenever I’m on your program?

Matthew Abraham: I don’t know. Because your teeth come out shiny afterwards. 

Nick Xenophon: I don’t know about that. 

David Bevan: You come out smiling. 

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

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 child care 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.

Matthew Abraham: [Talks over] Well, it doesn’t look like the priority, does it? To an innocent observer. 

Simon Birmingham: Well, the Prime Minister and I were out at a child care 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 gun 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 in time, pursuing multiple different changes, reforms, and improvements. And this is just one measure. 

David Bevan: Right. Now at the moment, it is illegal to offend, insult, humiliate or intimidate 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? 

Simon 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. 

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

Simon Birmingham: Well, we’re seeing, and particularly in the last year or two you’ve seen increased incidents of this provision being abused, the provision not working as effectively as you might hope it to, that 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. 

Matthew 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? 

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 is it 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.

David Bevan: Simon Birmingham?

Matthew Abraham: [Talks over] Simon Birmingham?

Simon 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 [indistinct] on racial grounds …

Penny Wong: [Talks over] Both of those complaints were dismissed. 

Matthew Abraham: After a harrowing- you’d have to say- 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?

Penny 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 saying- 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 previous argued against this, are now doing what One Nation wants. 

There are two levels of this which this operates. One is what civil proceedings someone can take. But this is also about the signal that it sends. 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 so openly against this.

Matthew Abraham: Nick Xenophon, what do you say?

Nick Xenophon: I say that the process has become the punishment in a number of cases, and we’re referring to the case of the late Bill Leak, 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 in this debate is that Section 18C 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 as long as we fix up the process, I think that will deal with the complaints that we’ve had about 18C.

Matthew Abraham: Simon Birmingham, why not do that?

Simon Birmingham: Well, we are proposing to …

Matthew Abraham: [Talks over] Yes.

Simon Birmingham: … 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.

Matthew Abraham: How would you define harassment?

Simon 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 have been taken out. Could involve, of course, the type of abuse that we don’t want to see, and we want to make sure that harassment in that sense is absolutely prevented, along with intimidation. Any mention of intimidation before, intimidation is not part of- is not being removed from the changes here. But ultimately, these measures, harassment and intimidation, will provide a strong barrier, a clearer barrier that is more useful and more clearly defined by the courts than the current provisions have been.

David Bevan: Okay. 

Penny Wong: [Talks over] [Inaudible].

David Bevan: Senator- Senator Xeno- no, we move on to another issue now. 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?

Nick Xenophon: Because of the wording of the motion. Our position is we do not want to see penalty rates cut for existing workers. We want- 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 do you 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.

David Bevan: Well, why didn’t you support the motion, then? Because if you want to protect penalty rates for existing workers, you could have supported that motion, because the motion was saying it’s bad that their penalty rates have been cut.

Nick 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 look to the independent umpire to deal with these matters? And I’ve said 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.

Matthew Abraham: Okay. Well, Senator Wong, does that wash with you?

Penny 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 prevent 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.

David Bevan: Well, he is for existing people, he’s just saying that …

Penny Wong: [Interrupts] Exactly. So if you’re somebody who’s going to enter the workforce or going to get a job in the 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.

Matthew Abraham: Liberal Senator Simon Birmingham.

Simon Birmingham: Well, the whole motion is 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, and of course it was a process that he commenced, he’d kicked off as Workplace Relations Minister.

David 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 the Parliament can sort this out?

Simon Birmingham: Well, I hope the Parliament can support a plebiscite bill that can ensure all Australians get to have their say.

David Bevan: Yeah, but if that fails, and it looks like it will …

Simon 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.

David Bevan: Right. Which means you hope that if it fails you can sort this out in the Parliament before the next election.

Simon Birmingham: Well, I hope that, 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.

Penny Wong: [Talks over] Oh, why don’t you grow- grow a spine? Seriously. Really. 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?

Simon Birmingham: Well, what you’re asking us to do, Penny, is to go against what we took to the last election as our policy.

Penny Wong: Well, like 18C? It’s the same thing. You took 18- you said no changes to 18C at the last election, but that’s been jettisoned as well. I mean, the reality is you kept faith with that commitment, you put the bill up, it was overwhelmingly defeated. I wish the moderates would actually grow a spine on this. You’d save us all continuing to talk about it.

David Bevan: [Talks over] 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.