Chapter 4Relevant International Human Rights Law
4.1This chapter sets out the key human rights (as recognised under international human rights law) which are engaged by the matters being considered in this inquiry. Finally, this chapter sets out the committee’s views and recommendations.
Relevant human rights
4.2Australia has voluntarily assumed binding obligations to respect, protect and fulfil human rights under international human rights law. The United Nations has also emphasised the role of business in respecting human rights.
4.3The human rights which are directly engaged by antisemitism at university campuses, and related protests and responses to such protests or the making of statements, include the rights to:
(a)equality and non-discrimination;
(b)freedom of religion;
(c)education;
(d)freedom of expression; and
(e)freedom of assembly.
4.4A small number of submitters and witnesses provided expert evidence regarding Australia’s existing legal protections and human rights law obligations.
The right to equality and non-discrimination
4.5This right provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (which includes nationality).
4.6The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate' exclusively or disproportionately affects people with a particular protected attribute.
4.7Article 1 of the United Nations (UN) International Convention on the Elimination of All Forms of Racial Discrimination provides that ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
4.8The UN Committee on Economic, Social and Cultural Rights has emphasised that non-discrimination is ‘an immediate and cross-cutting obligation’ on States parties, and one which requires them to eliminate discrimination both formally and substantively:
Eliminating discrimination in practice requires paying sufficient attention to groups of individuals which suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations. States parties must therefore immediately adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination.
4.9It also obliges states to adopt measures to ensure that persons in the private sphere do not discriminate on prohibited grounds.
4.10Differential treatment will be permissible ‘if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the International Covenant on Civil and Political Rights’.
The right to freedom of religion
4.11The right to freedom of religion is the right of all persons to think freely, and to entertain ideas and hold positions based on conscientious or religious or other beliefs.The right to hold a religious or other belief or opinion is an absolute right which may not be subject to any limitations.
4.12Persons have the right to demonstrate or manifest religious or other beliefs, by way of worship, observance, practice and teaching. Restrictions on the freedom to manifest religion or belief will be permissible only if they are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. Such measures must also be rationally connected (that is, effective to achieve) and proportionate to a legitimate objective. Such restrictions may not be imposed for a discriminatory purpose or applied in a discriminatory manner.
4.13While the right to hold a religious or other belief or opinion is an absolute right, the right to exercise one's belief can be limited given its potential impact on others. The right to exercise one's belief can be limited as long as it can be demonstrated that the limitation is proportionate and is necessary to protect public safety, order, health or morals or the rights of others.
4.14The Special Rapporteur on freedom of religion or belief, Mr Ahmed Shaheed, has identified violence, discrimination and expressions of hostility motivated by antisemitism as a serious obstacle to the enjoyment of the right to freedom of religion or belief.
The right to education
4.15The right to education provides that education should be accessible to all. This requires that State parties recognise the right of everyone to education, and agree that education shall be directed to the full development of the human personality and sense of dignity, and shall strengthen the respect for human rights and fundamental freedoms.
4.16The right to education includes a right to academic freedom. The Special Rapporteur on the right to education, Farida Shaheed, explains that:
Academic freedom comprises the freedom of individuals to access, disseminate and produce information, to think freely and to develop, express, apply and engage with a diversity of knowledge within or related to their fields of expertise or of study, whether inside (“intramural expression”) or outside the academic community, including with the public (“extramural expression”). It is a human right, the exercise of which carries special duties to seek the truth and to impart information according to ethical and professional standards and to respond to contemporary problems and needs of all members of society.
4.17The Special Rapporteur emphasised that the right carries responsibilities, and does not protect the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
4.18The Special Rapporteur noted that threats to academic freedom globally include, attacks on institutional autonomy; interventions of security forces on university campuses; and political tensions affecting the content and conduct of teaching and research. They highlighted, in particular, information they had received regarding responses to the Israel/Palestine conflict:
On 23 November 2023, four Special Rapporteurs raised concerns about the suspension and expulsion of students from universities, the dismissal of academics, calls for their deportation, threats to dissolve student unions and associations and restrictions on campus meetings to express solidarity with the suffering civilians in Gaza and denounce the ongoing Israeli military response. In some universities, students have been blacklisted as supporters of terrorism, with accompanying threats to their prospects for future employment. It is reported that about 120 universities in the United Kingdom have adopted the working definition of antisemitism adopted by the International Holocaust Remembrance Alliance, which conflates criticisms of Israel with antisemitism, to silence lawful speech supportive of Palestinian human rights and the right to self-determination. University staff and students have been subjected to unreasonable investigations and disciplinary proceedings based on this definition and harmed by false allegations of antisemitism. Academic freedom has also been curtailed as a result of measures to prevent terrorism, particularly in relation to expressions of solidarity with the Palestinian people since 7 October 2023. The Special Rapporteur is equally concerned at the reported increase of antisemitism in universities following the 7 October massacre and regrets that the definition used by the International Holocaust Remembrance Alliance creates confusion about such an important issue. The right to academic freedom does not protect the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
4.19The Special Rapporteur recommended the implementation of the Principles for Implementing the Right to Academic Freedom, which articulates nine aspects for substantially protecting the right.
4.20The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Ms Irene Khan, has similarly reported specifically on global threats to freedom of expression arising from the conflict in Palestine, cautioning that private actors including universities, ‘have played a disturbing role, intimidating, isolating and silencing voices that differ from theirs’, and highlighted the undermining of academic freedom as a distinct challenge to freedom of expression emanating from the conflict.
The right to freedom of expression
4.21The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. The UN Human Rights Committee has noted the important status of this right under international human rights law.
4.22This human right is broad in scope. It embraces expression that may be regarded as deeply offensive, and includes expression of views and opinions that offend, shock or disturb. The UN Human Rights Committee has also stated that the right to freedom of expression encompasses expression that may be regarded as deeply offensive and insulting.
4.23The right to freedom of expression may be permissibly limited. The International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, place obligations on states in relation to the right to freedom of expression and the right to be free from racial discrimination, including racial 'hate speech' or serious forms of racially discriminatory speech. States parties are required to have legal prohibitions on the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. As the Australian Human Rights Commission noted, there is a high threshold for expression that falls under this requirement.
4.24Further, the right to freedom of expression may be subject only to limitations that are necessary to: protect the rights or reputations of others; or for the protection of national security, public order, or public health or morals. Such limitations (including one which is justified on the basis that it gives effect to a State’s obligations relating to the prohibition of hate speech) must be prescribed by law, be rationally connected to the objective of the measures and be proportionate.
4.25In determining whether limitations on the freedom of expression are proportionate, the United Nations Human Rights Committee has noted that restrictions on the freedom of expression must not be overly broad. In particular, it has observed that:
When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.
4.26The UN Committee on the Elimination of Racial Discrimination has recommended that certain factors be considered in determining whether particular conduct should be declared an offence punishable by law (pursuant to a State’s obligations arising under the UN Convention on the Elimination of Racial Discrimination):
(a)the content and form of speech (e.g. provocative, directness, construction and dissemination, style of delivery);
(b)the economic, social and political climate at the time the speech was made and disseminated;
(c)the position or status of the speaker, and the audience to which the speech is directed;
(d)the reach of the speech, including means of transmission; and
(e)the objectives of speech (e.g. protecting or defending the human rights of individuals and groups should not be subject to criminal or other sanctions).
4.27The Australian Human Rights Commission (AHRC) noted that several UN bodies and Special Rapporteurs ‘have expressed deep concern about the reported increase of antisemitism in universities following 7 October 2023’. The AHRC also noted that UN authorities have also raised concern about some responses to this increase, including:
…the suspension and expulsion of students, dismissal of academics, and threats towards students, academics, student unions and associations for ‘expressing solidarity with suffering civilians in Gaza and denounce[ing] the ongoing Israeli military response’.
4.28The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Ms Irene Khan, has reported specifically on global threats to freedom of expression arising from the conflict in Palestine. The Special Rapporteur has stated that instances of antisemitic, Islamophobic, and anti-Palestinian racism has increased dramatically since 7 October 2023, and has expressed concern regarding confusion over what constitutes antisemitism.
4.29The Special Rapporteur has also commented on the banning of certain symbols or slogans related to Palestine, stating:
Some States have banned and criminalized the display of Palestinian symbols, such as the national flag and the keffiyeh (traditional black and white scarf) as signs of antisemitism and support for Hamas. Such general bans do not meet the requirements of necessity and proportionality under article 19 (3) and therefore violate the right to freedom of expression. As general symbols of Palestinian identity, they should be regarded as legitimate forms of expression. Whether or not they are being used in a specific situation to signify intolerance or hatred against Jews or to incite violence or to indicate support for terrorism must be assessed on case-by-case basis, with careful contextual analysis to determine if they should be restricted.
…
“From the River to the Sea, Palestine Will Be Free”, the most recognizable chant in many Palestinian marches, has been the subject of blanket restrictions by some States and private actors on the grounds that it is a sign of support for Hamas and shows genocidal intent or incitement to violence against Jews. That interpretation of the slogan has been challenged by scholars, human rights experts and Palestinian advocates, including many Jewish groups and scholars who see it as a call for the right to self-determination of Palestinians. Over the past year, the slogan has been used widely during protests in solidarity with Palestinians. In some Western countries, the use of the slogan has been criminalized or otherwise sanctioned. In some others, the courts and law enforcement agencies have recognized the different meanings of the slogan and have refused to impose blanket bans on it.
A general ban or criminalization for the mere utterance of the slogan in all circumstances is disproportionate and not in line with international human rights law. Incitement requires credible proof of intent to incite, as well as the likelihood that it would lead to the intended objective, rather than just arousing feelings of fear, offence or insult. Whether or not in certain specific situations such intent and likelihood exists and prohibition of the slogan is justified should be assessed in accordance with international standards and contextual analysis outlined in the Rabat Plan of Action.
4.30The Human Rights Law Centre likewise emphasised the relevance of the Rabat Plan of Action in assessing the appropriateness of prohibiting certain speech:
The Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred, developed through a series of expert workshops convened by the United Nations, provides a detailed framework for distinguishing hate speech from protected expression. It emphasises that restrictions on speech must target intentional advocacy of hatred that incites violence, discrimination, or hostility while safeguarding legitimate academic and political discourse.
4.31It recommended the adoption of the six-part test set out in that plan to help distinguish between protected expression and prohibited hate speech, namely an assessment of: context; speaker; intent; content and form; extent; and likelihood and imminence of harm as a direct consequence of the expression or act. The Human Rights Law Centre stated that the application of these criteria to an assessment of particular speech ‘safeguard against arbitrary or overly broad limitations on expression’, stating:
Protecting the freedom of expression, even for unpopular or dissenting views, is essential for fostering robust democratic debate and the exchange of ideas.
Combating antisemitism and other forms of racial or religious hatred that constitutes incitement to discrimination, hostility or violence is essential, and indeed mandated under Article 20(2) of the ICCPR. Such efforts, however, must not come at the cost of silencing critical or dissenting voices. This is particularly so given that suppressing legitimate political expression risks diluting the focus of combating hate speech. This, in turn, weakens broader efforts to address discrimination and hatred effectively and inclusively.
4.32Professor Katharine Gelber, an expert in vilification law, stated that the threshold at which legitimate freedom of expression ends and hate speech begins, stating that the threshold is, in theory ‘substantive harm… that happens through your expression that is equivalent to the harm that would happen, for example, if you were to deny somebody a job on a discriminatory ground. It's more than offending somebody or hurting their feelings’. She also stated that ‘the acts that lead to it need to be public and the expressive conduct needs to rank people as inferior, legitimise discrimination against them and deprive them of powers in a context in which those people are vulnerable to that harm’. Professor Gelber agreed that, in practice, ‘delineating whether or not an instance of expression has crossed that line is complex and depends very much on the context within which it occurs and the other things that happen alongside the expression’. With respect to the current context, she stated that while there is a concerning rise in antisemitism and antisemitic expression, there is also debate and differences of opinion as to ‘whether or not a particular slogan or particular phrase amounts to being antisemitic’.
4.33The AHRC emphasised that ‘[c]entral to ensuring the protection of Jewish students and staff, as well as protecting the rights of others on university campuses, is clarifying the kinds of speech that are protected under international human rights law, and those that are not’. In this regard, it highlighted recent comments by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression regarding ‘a tendency to confuse and conflate criticism of the policies of Israel, which is a legitimate exercise of freedom of expression, with antisemitism, which is racial and religious hatred against Jews’.
4.34The Human Rights Law Centre stated that:
In the context of protests on university campuses, particularly the anti-war protests in support of Palestine and Palestinians, expressions of dissent may provoke strong reactions amongst some students. However, the mere fact that such views may offend some does not, on its own, justify limitations to this right. The freedom of expression is not intended to shield individuals or groups from offence but to protect the open exchange of ideas essential to a democratic society. The Human Rights Committee makes clear that penalising opinions about historical facts, controversial political subjects, or criticising public figures is generally inconsistent with the Covenant’s protections.
The right to freedom of assembly
4.35The right to freedom of assembly provides that all people have the right to peaceful assembly. This is the right of people to gather as a group for a specific purpose. It protects the right of individuals and groups to meet and engage in peaceful protest and other forms of collective activity in public, whether spontaneously or having given advanced notice. It is strongly linked to the right to freedom of expression, as it is a means for people together to express their views. It protects participants while and where an assembly is ongoing, and ‘[a]ssociated activities conducted by an individual or by a group, outside the immediate context of the gathering but which are integral to making the exercise meaningful’.
4.36The right to freedom of assembly protects peaceful assemblies wherever they take place:
…outdoors, indoors and online; in public and private spaces; or a combination thereof. Such assemblies may take many forms, including demonstrations, protests, meetings, processions, rallies, sit-ins, candlelit vigils and flash mobs. They are protected under article 21 whether they are stationary, such as pickets, or mobile, such as processions or marches.
4.37The right protects assemblies that pursue controversial or contentious ideas or goals, noting that ‘[t]heir scale or nature can cause disruption, for example of vehicular or pedestrian movement or economic activity’. The UN Human Rights Committee has stated that such consequences ‘whether intended or unintended, do not call into question the protection such assemblies enjoy. To the extent that an event may create such disruptions or risks, these must be managed within the framework of the Covenant’. States parties are obliged to respect this right and ensure its exercise without discrimination.
4.38As to the scope of the right, the UN Human Rights Committee has guided that:
Establishing whether or not someone’s participation in an assembly is protected under article 21 entails a two-stage process. It must first be established whether or not the conduct of the person in question falls within the scope of the protection offered by the right, in that it amounts to participation in a “peaceful assembly”…If so, the State must respect and ensure the rights of the participants…Second, it must be established whether or not any restrictions applied to the exercise of the right are legitimate in that context.
4.39The UN Human Rights Committee has clarified that a ‘peaceful’ assembly ‘stands in contradistinction to one characterized by widespread and serious violence’ (violence meaning ‘the use by participants of physical force against others that is likely to result in injury or death, or serious damage to property’). It confirms that ‘mere pushing and shoving or disruption of vehicular or pedestrian movement or daily activities do not amount to “violence”’. It notes that there may not always be a clear distinction between peaceful and non-peaceful assemblies, but cautions that there should be a presumption in favour of regarding assemblies as peaceful, stating that isolated acts of violence by some participants should not be attributed to others, to the organisers or to the assembly as such’, and that ‘[i]solated instances of such conduct will not suffice to taint an entire assembly as non-peaceful’. As such, some participants in an assembly may not be protected by article 21, whereas others may. If the conduct of participants in an assembly is peaceful, the fact that certain domestic legal requirements pertaining to an assembly have not been met by its organisers or participants does not, on its own, place the participants outside the scope of the protection of article 21.
4.40While States parties bear the primary responsibilities for realising the right to peaceful assembly, private entities and broader society ‘may also be expected to accept some level of disruption as a result of the exercise of the right’.
4.41The right to freedom of assembly may be limited for certain prescribed purposes. That is, that the limitation is necessary to respect the rights of others, to protect national security, public safety, public order, public health or morals. Additionally, such limitations must be prescribed by law, be rationally connected (that is, effective to achieve) and proportionate to achieving the prescribed purpose.The UN Human Rights Committee has guided that such restrictions must be ‘narrowly drawn’, and that the approach of authorities to restricting peaceful assemblies must be content neutral and not based on the identity of participants. It has stated that the possibility that a peaceful assembly may provoke adverse or even violent reactions from some members of the public is not sufficient grounds to prohibit or restrict the assembly.
4.42As to the prohibition of a specific assembly, the UN Human Rights Committee has stated that this:
…can be considered only as a measure of last resort. Where the imposition of restrictions on an assembly is deemed necessary, the authorities should first seek to apply the least intrusive measures. States should also consider allowing an assembly to take place and deciding afterwards whether measures should be taken regarding possible transgressions during the event, rather than imposing prior restraints in an attempt to eliminate all risks.
Any restrictions on participation in peaceful assemblies should be based on a differentiated or individualized assessment of the conduct of the participants and the assembly concerned. Blanket restrictions on peaceful assemblies are presumptively disproportionate.
4.43As to the holding of peaceful assemblies in private spaces, the UN Human Rights Committee has guided:
While gatherings in private spaces fall within the scope of the right of peaceful assembly, the interests of others with rights in the property must be given due weight. The extent to which restrictions may be imposed on such a gathering depends on considerations such as whether the space is routinely publicly accessible, the nature and extent of the potential interference caused by the gathering with the interests of others with rights in the property, whether those holding rights in the property approve of such use, whether the ownership of the space is contested through the gathering and whether participants have other reasonable means to achieve the purpose of the assembly, in accordance with the sight and sound principle. Access to private property may not be denied on a discriminatory basis.
4.44Liberty Victoria emphasised the importance of the right to freedom of assembly and the ability to engage in peaceful protest, stating that protest is critical to a functioning democracy. It argued that vigilance is required to ensure that people calling for greater restrictions on student protests are not ‘seeking to weaponise this issue for other, authoritarian ends, and that bad-faith actors do not seek to shoehorn the legitimate concern about rising incidents of antisemitism into weakening protest rights and the foundations of our democracy’.
4.45The Human Rights Law Centre, similarly, emphasised the breadth of the right to freedom of assembly:
An assembly, as defined by the Human Rights Committee in General Comment No. 37, is an intentional and temporary gathering of people for a specific purpose, primarily expressive, and it may take place in public or private spaces, as well as online...General Comment No. 37 states that the right applies irrespective of the duration of the assembly or whether it temporarily disrupts normal activities such as vehicular traffic or economic operations, provided the assembly remains peaceful.
4.46It stated that university protests, including encampments, ‘often challenge institutional or societal norms in ways that may be disruptive or controversial. However, disruption and causing offense alone are not sufficient grounds to deny protection of these assemblies under international law’. Blanket restrictions on assemblies, such as prohibiting all encampments or campus protests, are presumptively disproportionate.
4.47Dr Lana Tatour and Dr Andrew Brooks highlighted recent comments by the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association in response to protests on universities campuses globally:
[The] Special Rapporteur…urged universities to act immediately to ensure and protect the right to protest peacefully on campuses in the context of international solidarity with the Palestinian people. Romero’s report examined campuses across thirty different countries, concluding that “the brutal repression of the university-based protest movement is posing a profound threat to democratic systems and institutions.” Some of the concrete recommendations included in the report include calling on universities to:
actively facilitate and protect peaceful assemblies;…refrain from and cease any surveillance and retributions against students and staff for expressing their views or participating in peaceful assemblies;…ensure transparent and independent investigation into human rights violations that occurred in the context of the camps and other peaceful assemblies, revoke sanctions related to the exercise of fundamental freedoms, and provide effective and full remedies to affected students and staff.
Relevant domestic laws
4.48The Castan Centre for Human Rights Law noted that, while there is no federal Human Rights Act or express protection of human rights in the Australian Constitution, two states and one territory have legislation expressly protecting human rights: Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic); and Human Rights Act 2019 (Qld).
4.49The Castan Centre for Human Rights Law noted that domestic legislation also protects against hate speech and vilification, including the Racial Discrimination Act 1975, and noted evidence that Jewish groups have successfully invoked this legislation ‘on a number of occasions to obtain remedies against individuals engaging in antisemitic conduct or speech, including Holocaust denial and publication of material promoting hatred of Jews’.
4.50The Human Rights Law Centre highlighted the case of Ridd v James Cook University, which involved the consideration of the scope of ‘intellectual freedom’. In this case, the High Court of Australia concluded that academic freedom must allow speech that challenges ‘civil norms’ and cannot be limited by a supposed ‘right’ to respect or courtesy.
4.51In its 2017 decision in Brown v Tasmania, the High Court considered the application of the implied constitutional right to freedom of political expression to laws restricting protest rights. The court stated that ‘[t]he implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth. It operates as a limit on the exercise of legislative power to impede that freedom of expression’. That is, it is a limit on the laws that can be passed by state and federal governments. In this regard, the Human Rights Law Centre stated that laws that prevent or deter political communication will limit the implied freedom and must be justified and proportionate to achieve a legitimate objective to be constitutionally valid.
4.52Several witnesses supported the committee’s prior recommendation that a federal Human Rights Act be legislated for.
Balancing human rights
4.53The Castan Centre for Human Rights Law noted that human rights often conflict, in which case ‘there is a need to balance human rights against each other, or to limit one human right to facilitate the enjoyment of another’. In the context of universities responding to antisemitic speech and conduct, it stated that:
Laws, policies, and practices addressing vilification do not breach freedoms of the individual and group who are vilifying another person or group. Laws, policies, and practices which appropriately define vilification, and which do not impose carte balance restrictions on such activity are likely to be human rights-compliant, given the significant social ill sought to be addressed by these laws. Responses seeking to address vilification and hate speech must be adequately balanced so as not to inadvertently or arbitrarily infringe the human rights of others. Broad or vague restrictions, for instance, are particularly at risk of violating human rights in a way which is neither proportionate nor legitimate. The issue of vilification and hate speech cannot be used to suppress expression and conduct which is not violent and does not incite others.
4.54It posited that:
…where universities have sought to limit the expression of certain phrases understood to be incitement to physical violence and violent threats, such action is likely human rights-compliant because these phrases likely infringe either Article 19(3) or Article 20 of the ICCPR or Article 4 of the CERD and are therefore not covered by the right to freedom of expression.
4.55Mr Hugh de Kretser, President of the AHRC, stated:
Issues around the intersection between freedom from discrimination and vilification and freedom of expression and peaceful assembly are at the heart of this inquiry into antisemitism at universities. Human rights principles provide practical guidance on how to balance human rights when they intersect and how to maximise intersecting rights to the greatest extent possible. They require that any limitation on a human right must be for a legitimate purpose and must be no wider than is necessary to achieve that purpose. Applying these principles will help universities to address antisemitism and promote the human rights of all students and staff.
4.56He stated further:
This issue is the hardest part of this inquiry. The issue that is playing out in universities is playing out to a different degree and with different dimensions in workplaces across the country…[H]uman rights principles can help. There is a plethora of opinion through courts and international bodies about how to draw that line between freedom from discrimination, safety for students and staff in the present context, and freedom of expression. In a sense, it is easy to say that freedom of expression can be lawfully restricted to prevent hate speech and incitement to violence. There are very clear examples of where things are controversial and unpopular but permissible and where things are clearly racist hate speech and incitement to violence, which should be prohibited. Then there are areas in the middle where it becomes much harder. When you look at the material that I am looking at that is before this committee, you see those examples coming up time and time again. A human rights approach would say: 'If you're trying to restrict speech, what is the purpose for it? Is it a legitimate purpose? Is the thing you are doing to restrict it connected rationally to that purpose? And is there a less restrictive means of achieving that purpose?' That simple test in human rights speak, or the proportionality test, is, I have found through my career when looking at difficult policy positions or issues, to be a powerful way of stepping through to check the reasonableness of action, in this case by a university administration or by a government or another policy maker.
4.57Mr de Krester posited that a legislation protecting human rights would assist in ensuring the comprehensive application of international human rights law principles in Australia:
You can take a practical example like: should protests be permitted on university campuses, and in what circumstances? If you're going to try and limit protests, you're going to engage the rights to freedom of peaceful assembly and freedom of expression. If you're saying you can't have protests in university buildings, for example, you ask: why are you doing that? The answer may be: because you don't [want] to disrupt classes and the work of academics and the like. I understand that this is an issue that Sydney uni has looked at in terms of its policies. You'd ask: is that limiting freedom of expression and peaceful assembly? Yes, it is. Is it a reasonable limitation? Sydney uni would say: yes, it is a reasonable limitation because people can protest outside in public spaces on the university campus. Is there a less restrictive way of achieving that attempt to minimise disruption to classes and things like that? I assume they would argue: no, there is isn't.
So there is a process that you step through in applying that obligation to properly consider an act compatibly with each of those relevant rights to arrive at a good, human-focused human rights outcome in terms of the policies that a university would be applying. If they get it wrong, people have the ability to complain about it and seek some kind of resolution.
4.58Mr de Kretser argued that the application of a positive duty on public authorities to act in a manner which is compatible with human rights has a preventative function:
…you need that legal obligation taken seriously—you see the decision-makers, the public servants and the administrators thinking about the human impact of their actions. That is the benefit, or the power, if you like, of human rights legislation in the sense that it helps to get good, human focused laws, policies, decisions and actions, and it helps to prevent human rights abuses from occurring in the first place. In a situation like this, it helps people who are required to develop policies and laws to get the balance right between those issues when rights like freedom of expression and freedom from discrimination and racial vilification are intersecting.
Committee view
4.59This inquiry has been a very useful exercise to draw attention to the serious issues at universities in Australia. The committee is grateful to all those individuals and organisations who have given their time to contribute to the inquiry.
4.60The committee has found that there has been an alarming and abhorrent rise in antisemitism amongst students and staff at Australian universities.
4.61This rise in antisemitism has been exacerbated by the reluctance of many university administrations to enforce meaningful consequences for misconduct, allowing a toxic environment to escalate.
4.62The committee noted that universities have been varied in their approach to a rise in antisemitism on campuses. Some have taken the issue more seriously than others. There have been notable efforts by some to address these issues, while noting that universities cannot entirely prevent all misconduct, they can control how they respond to allegations of such conduct.
4.63The committee considers that there needs to be improved engagement between student bodies and university leadership as part of efforts to further develop complaints management policies and other university policies. Further, university policies should be informed by a deep understanding of antisemitism, which should consistently inform how universities respond, with an emphasis on proactive management of issues, and a rights-based approach.
4.64In seeking to ensure that its recommendations are available to universities prior the commencement of Semester 1 2025, the committee has determined to issue its inquiry report early.
4.65The committee recommends that university Vice Chancellors hold a formal meeting with Jewish student bodies and Jewish staff during semester one of 2025 to engage directly on their observations regarding antisemitism on their campuses. The committee recommends that Vice Chancellors should subsequently make a public comment on their work to combat antisemitism and regarding those meetings with Jewish students and staff.
4.66The committee recommends that Australian universities should review their complaints procedures with a view to their simplification, including giving particular consideration to: establishing a single central office to receive and process all complaints; adopting a clear definition of antisemitism that aligns closely with the International Holocaust Remembrance Alliance definition; and providing for alternative dispute resolution mechanisms.
4.67The committee recommends that Australian universities should report on the outcome of complaints in a more transparent manner while maintaining the privacy of the complaints process. The committee recommends that such reports should include, where relevant, comment by the Vice Chancellor regarding their work to address antisemitism on campus.
4.68The committee recommends that the government give consideration as to whether it is necessary to amend the Fair Work Act 2009 to enable disciplinary or other action to be taken in relation to an employee (or a grant recipient where the Australian Research Council Act 2001 and related legislation applies), where that person is found to have engaged in conduct which would breach Part 5.1 of the Criminal Code Act 1995, or section 18C of the Racial Discrimination Act 1975.
4.69The committee recommends that Australian universities should publish regular de-identified reports setting out the number of complaints received, the nature of the complaints, the number of complaints resolved since the last report and the timeframe for the resolution of outstanding complaints.
4.70The committee recommends that universities consider increased investment in research into antisemitism and opportunities for collaboration regarding current projects, having close regard to the work being undertaken by the Monash University Australian Centre for Jewish Civilisation as an appropriate model.
4.71The committee recommends that universities deliver ongoing training to students, staff and leadership on recognising and addressing antisemitism.
4.72The committee recommends that the government give consideration to amending the Tertiary Education Quality and Standards Agency Act 2011to provide TEQSA with enhanced powers to enforce compliance with the higher education threshold standards relating to student wellbeing and safety, as those standards are applied in practice by universities (e.g. through Codes of Conduct).
4.73The committee recommends that government monitor the implementation of these recommendations and further recommends that the National Student Ombudsman review university practices to reduce antisemitism on campuses within twelve months of the tabling of this report.
4.74The committee recommends that if, following a review of the implementation of these recommendations in consultation with the Special Envoy to Combat Antisemitism, it is apparent that the response by universities has been insufficient, the government should give consideration to the establishment of a judicial inquiry.
Mr Josh BurnsMP
Chair
Labor Member for Macnamara