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Referral and Terms of Reference
November 2016, pursuant to section 7(c) of the Human Rights (Parliamentary
Scrutiny) Act 2011, the Attorney-General wrote to the Parliamentary Joint
Committee on Human Rights (the Committee) to refer the following matters for
inquiry and report:
Whether the operation of Part IIA
of the Racial Discrimination Act 1975 (Cth) imposes unreasonable
restrictions upon freedom of speech, and in particular whether, and if so how,
ss 18C and 18D should be reformed.
- Whether the handling of complaints
made to the Australian Human Rights Commission (AHRC) under the Australian
Human Rights Commission Act 1986 (Cth) should be reformed, in particular,
in relation to:
- The appropriate treatment of:
Trivial or vexatious complaints:
Complaints which have no
reasonable prospect of ultimate success;
Ensuring that the persons who are
the subject of such complaints are afforded natural justice;
Ensuring that such complaints are
dealt with in an open and transparent manner;
Ensuring that such complaints are
dealt with without unreasonable delay;
Ensuring that such complaints are
dealt with fairly and without unreasonable cost being incurred either by the
Commission on by persons who are the subject of such complaints;
The relationship between the
Commission's complaint handling processes and applications to the Court arising
from the same facts.
- Whether the practice of soliciting
complaints to the Commission (whether by officers of the Commission or by third
parties) has had an adverse impact upon freedom of speech or constituted an
abuse of the powers and functions of the Commission, and whether any such
practice should be prohibited or limited.
Whether the operation of the
Commission should be otherwise reformed in order better to protect freedom of
speech and, if so, what those reforms should be.
Committee is asked, in particular, to consider the recommendations of the
Australian Law Reform Commission in its Final Report on Traditional Rights
and Freedoms – Encroachments by Commonwealth Laws [ALRC Report 129 –
December 2015], in particular Chapter 4 – "Freedom of Speech".
this reference, "freedom of speech" includes, but is not limited to,
freedom of public discussion, freedom of conscience, academic freedom, artistic
freedom, freedom of religious worship and freedom of the press.
Australian Greens recommend the retention of Section 18C of the Racial
Discrimination Act 1975 (Cth) in its current form.
Australian Greens recommend the suggestions made by the Australian Human Rights
Commission (the Commission) regarding changes to the Commission's capacity to
terminate complaints that lack merit be adopted.
Parliamentary Joint Committee on Human Rights has heard from many multicultural
and Aboriginal and Torres Strait Islander groups who have expressed significant
concern about potential changes which would weaken protections against racist
hate speech contained in the Racial Discrimination Act 1975 (Cth).
Committee has heard horrific stories of everyday racism from these groups, some
of which expressed concern that even the holding of an inquiry into the Racial
Discrimination Act 1975 (Cth) has increased racism within Australia.
and Aboriginal and Torres Strait Islander groups who made submissions and gave
evidence to the Committee overwhelmingly concluded that any weakening of s 18C
of the Racial Discrimination Act 1975 (Cth) would send a message of
acceptance of racist behaviour and therefore result in an increase in that
Australian Greens share the concern that any weakening of the protections
contained in s18C of the Racial Discrimination Act 1975 (Cth) could be
damaging to social cohesion, particularly in our current social and political
climate. Many multicultural and Aboriginal and Torres Strait Islander groups
provided evidence that racist behaviour is currently increasing.
Australian Greens agree with submissions made to the Committee reiterating the
importance of freedom of speech as a civil right, but maintain that the right
is not unfettered.
18D of the Racial Discrimination Act 1975 (Cth) provides strong and
broad defences to prosecution under s 18C and in so doing upholds the right to
freedom of speech to an appropriate extent.
Australian Greens stand strongly in support of s18C in its current form, and
against racism and racist hate speech in Australia.
ratifying the International Covenant on Civil and Political Rights (ICCPR) and
the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD) Australia voluntarily accepted obligations in relation to
right to freedom of expression (or freedom of speech) and the right to be free
from racial discrimination including racial "hate speech" or serious
forms of racially discriminatory speech.
rights to freedom of opinion and expression are protected by article 19 of the
right to freedom of opinion is the right to hold opinions without interference
and cannot be subject to any exception, restriction or limitation.
the right to freedom of expression extends to the communication of information
or ideas through any medium, including written and oral communications, the
media, public protest, broadcasting, artistic works and commercial advertising.
The right to freedom of expression may be subject to limitations, and in fact
is subject to specific parameters.
The United Nations (UN) Human
Rights Council has emphasised the importance of the right to freedom of
The exercise of the right to freedom
of opinion and expression is one of the essential foundations of a democratic
society, is enabled by a democratic environment, which offers, inter alia,
guarantees for its protection, is essential to full and effective participation
in a free and democratic society, and is instrumental to the development and
strengthening of effective democratic systems.
Article 19(3) of the ICCPR provides that the exercise of the right to
freedom "carries with it special duties and responsibilities" and the
right to freedom of expression may be subject to limitations that are
necessary to protect the rights or reputations of others, national security,
public order (ordre public),
or public health or morals. In order for a limitation to be permissible under
international human rights law, limitations must:
be prescribed by law;
pursue a legitimate objective;
be rationally connected to the achievement of that objective; and
be a proportionate means of achieving that objective.
Australian Greens believe the limitations on freedom of expression currently
imposed by s18C of the RDA are appropriate and within the parameters
established by the ICCPR.
The scope of s 18C
of the Racial Discrimination Act 1975 (Cth)
While freedom of speech is an essential right, it is not a right
that is unfettered. There are many areas of Australian law which impede upon
the right to freedom of speech to a much greater extent than what is accused of
the Racial Discrimination Act 1975 (Cth).
Examples of laws which limit freedom of speech, yet are not
subject to the same level of scrutiny as the Racial Discrimination Act 1975
(Cth) are defamation laws, and s 42 of the Border Force Act 2015 (Cth)
(which provides that an 'entrusted person' speaking about the occurrences
within Australia's offshore and onshore detention centres faces up to two years
in prison for doing so).
Ms Stephanie Cousins, Advocacy and External Affairs Manager,
Amnesty International Australia in evidence to the Committee stated:
Several of our submissions note that
there are serious threats to freedom of expression in Australia, but they do
not come from the much debated sections 18C and 18D of the Racial
Discrimination Act. Numerous laws in Australia criminalise speech that ought to
be protected in the public interest. The Border Force Act, section 35P of the
ASIO Act and several pieces of counterterror legislation curtail free speech in
ways that are concerning and were highlighted as such by the Australian Law
Reform Commission in its 'Freedom of speech' chapter in its final report of
Traditional rights and freedoms, which is noted in the terms of reference. But
it seems that these laws are conspicuous in their absence from the terms of
reference of the inquiry. We have addressed a number of these laws in our
submissions anyway and we welcome discussion of these matters today.
The Institute of Public Affairs (IPA) is vehemently opposed to s
18C of the Racial Discrimination Act 1975 (Cth). The IPA maintains that
s 18C constitutes a serious and unnecessary impeachment on the right to Freedom
of Speech. However, when asked to elaborate on why the IPA had failed to take
any meaningful action on other areas of law for the same reason, the only
reason that could be provided by Mr Simon Breheny, Director of Policy of
the IPA was:
We are participating not only in
this committee hearing but in the public debate on s 18C to the extent that we
have on this issue because it is a live political issue. If defamation becomes
a live political issue in the same way that s 18C is, we will be right there
The Australian Greens have serious concern that s 18C has become
a 'live political issue'. Those who argue to water down or weaken s 18C of the Racial
Discrimination Act 1975 (Cth) are effectively arguing that the law should
be changed to make it easier to engage in racist hate speech in Australia.
The concern from proponents of change that the Committee heard
regarding the scope of s 18C were often misconceived. They were largely based
on the fact that the words "offend" and "insult" in the
provision are too broad and encompass behaviour that should not be unlawful by
not imposing a high enough threshold of harm.
Such fears are misconceived in light of the decision of Kiefel J
(as she then was) in the case of Creek v Cairns Post Pty Ltd.
In that case, Kiefel J held that the relevant harm threshold under s 18C of
the Racial Discrimination Act 1975 (Cth) is behaviour that has "profound
and serious effects, not to be likened to mere slights."
This threshold is, in fact, quite high and its acceptance by the Courts has
provided certainty that mere hurt feelings are not enough for successful
proceedings under s 18C of the Racial Discrimination Act 1975 (Cth).
Professor George Williams in evidence to the Committee stated:
The second thing I would say is that
even though I do see an issue with section 18C I think it is a very weak
example of a much larger problem—that is, that there are many, many laws on the
statute book which seriously infringe freedom of speech in Australia. I think
this committee should be looking at those broader examples which, rather than
this section, actually impose very significant criminal penalties, including on
journalists, in circumstances where they might be gaoled for transmitting
information that is clearly in the public interest. My view, having looked at
over 350 laws on the statute book, is that there is a very broad problem in
Australia about free speech protection, and personally I would like to see
action which addresses the larger problem in addition to section 18C.
Ms Tasneem Chopra, Chairperson, Australian Muslim Women's Centre
for Human Rights submitted that the existing wording of s18C is sufficient and
does not warrant further modification:
The Australian Muslim Women's Centre
for Human Rights has had a 25‑year experience of dealing with racism,
discrimination and racist violence in particular. Reports and surveys conducted
historically from 2008 up until last year by ourselves, Deakin University,
Western Sydney University, the Scanlon Foundation—even the Essential Media
poll—have all consistently shown feelings of antipathy and hatred, feelings of
supporting a ban against Muslims in this country, and a variety of other
ill-willed intent against a minority community in this country. That is all
included in our report to you in our submission. The centre here believe the
existing wording of 18C is sufficient, together with the exceptions included in
section 18D, not to warrant further watering down or modification. These
sections allow for recognition of the right to human dignity through respectful
communication to continue unabated. Surely we cannot be arguing to enshrine the
rights of bigots to hate over the right of dignity of our citizens?
effects of racism
The Committee heard numerous submissions on the devastating
effect that everyday racism has on multicultural and Aboriginal and Torres
Strait Islander groups. Associate Professor Daphne Habibis, Deputy Director of
the Institute of Social Change at the University of Tasmania and Professor
Maggie Walter, Vice Chancellor at Aboriginal Research and Leadership, the
University of Tasmania, conducted research into the effects of racism on
Aboriginal people in Darwin, and presented their research to the Committee.
It is undeniable that being the victim of racism is detrimental
to the mental wellbeing of an individual. The Commission heard numerous
submissions to this effect. Professor Habibis and Professor Walter also
provided evidence that being a victim of racism may have detrimental effects to
an individual's physical health as well. Professor Walter submitted:
...this is not just about
sticks and stones, that constant and regular experience of negative racialised
interactions – whether that be through the media aimed at your racial group or
speaking about that racial group or immediate interpersonal interactions – has
huge impacts on health. It has shown to impact on asthma, diabetes, spiritual
and mental wellbeing.
The assertion of Professor Habibis and Professor Walters that the
effects of racism can manifest in detriment to a person's physical health is
well documented. The OXFAM Australia organisation 'Close the Gap' (which
campaigns to achieve indigenous health equality) reported that a factor in the
10-17 year life expectancy difference between Aboriginal and Torres Strait
Islanders and other Australians is partly due to the fact "mainstream
health services often lack cultural sensitivity and are unwelcoming places for
many indigenous people."
The Australian Greens are concerned that even the holding of this
inquiry has had have negative effects on multicultural and Aboriginal and
Torres Strait Islander groups within Australia. In addition to the wide range
of testimony the Committee heard as to the negative effects of racism, the
Committee also heard that multicultural and Aboriginal and Torres Strait
Islander groups believe that the racism they experience will increase with any
weakening of the protections afforded by s 18C of the Racial
Discrimination Act 1975 (Cth).
Mr Mostafa Rachwani, from the Lebanese Muslim Association,
provided examples to the Committee of the type of racist behaviour his
organisation and members are subjected to:
We have had cards smeared with bacon
and pig's fat sent to the office. We have had calls for massacres and genocide
on our Facebook page. We have had emails from people insulting and demeaning
us. We have had bomb threats, threats to protest and riot and threats of sexual
violence. All of these moments, fleeting as they may be for the perpetrators,
have lasting impacts on the staff and stakeholders of the LMA. I cannot count
the times I have had to console shaken and traumatised staff who have had to
face barrages of racial vilification. We have spent hours upon hours deleting
threatening, disgusting comments on pictures of people praying on our Facebook
page, having to read each and every single one.
All of these circumstances, all of
these threats and messages, do not emerge out of a political and cultural
The National Aboriginal Aboriginal and Torres Strait Islander
Legal Service (NATSILS) makes reference to the unequal distribution of power
between Indigenous communities and the dominant non-Aboriginal society, and
maintains that that ss 18C and 18D are essential with regard to this
imbalance as they were introduced into the Racial Discrimination Act 1975
(Cth) in 1995 following the Royal Commission into Aboriginal Deaths in Custody.
The Lowitja Institute presented evidence from surveys conducted
which demonstrate that the higher the levels of racism experienced, the more
damage that is suffered by an individual with regards to their mental health.
The Lowitja Institute is concerned with the symbolic value of s 18C. To 'water-down'
the provision would send that message that such damage to the health of
individuals who are victims of racism does not matter.
The Commission heard from a group of multicultural organisations
which included among others the Victorian Multifaith and Multicultural
Coalition, the Ethnic Communities Council of Victoria, and the Victorian
Multicultural Commission When asked if they felt racism in Australia would
increase as a result of the proposed changes to s 18C of the Racial Discrimination
Act 1975 (Cth) all members of this group vehemently agreed with the
The Victorian Multicultural Commission (VMC) has reported (based
on findings from the National Inquiry into Racist Violence and the Royal
Commission into Aboriginal Deaths in Custody as well as the VMC's own findings
from community consultations) that racial vilification which may appear to be "low-level
behaviour" can lead to an environment which fosters "severe acts of
harassment, intimidation, or violence by seeming to condone such acts." It
is the contention of VMC that the combined effect of ss 18C and 18D of the
Racial Discrimination Act 1975 (Cth) is the maintenance of "a balance
between freedom of speech and freedom from racial vilification."
VMC states that s 18C provides a "robust safeguard"
against racial vilification. VMC further contends that the threshold to be met
for conduct to be classified as "offensive behaviour" under s 18C is
high, with the courts holding that the behaviour in question must have "profound
and serious" effects", and not "mere slights."
The VMC submitted that freedom of speech is adequately protected
in the Racial Discrimination Act 1975 (Cth) by s 18 D and the exemptions
it provides to behaviour that would be unlawful under s 18C. The combination of
ss 18C and 18D, is therefore "a satisfactory balance between freedom of
speech ... and freedom from racial vilification."
Mr Joe Caputo, the Board Director of the Ethnic Communities
Council of Victoria, when asked if racism against the people he represents
would increase if s 18C were to be watered down stated:
Yes, I believe that will happen. The
current situation has served Australia well. Any changes or any watering down
would send a clear message to the community: 'Okay, now we can say whatever we
want.' That would send a very nasty message to our community.
It is a serious concern of the Australian Greens that in the
current social and political climate it would be especially damaging to social
cohesion to amend s 18C of the Racial Discrimination Act 1975 (Cth). The
Committee heard testimony from several multicultural and Aboriginal and Torres
Strait Islander groups that racist behaviour has increased in recent years. Ms
Helen Kapalos, Chairperson of the Victorian Multicultural Commission, stated
the following in regard to racism:
I would argue that we are seeing a
more severe, more acute brand of racism as a result of some communities being
linked with acts of terrorism around the world. I would say that without [the
protections afforded by s 18C of the Racial Discrimination Act 1975 (Cth)] in
place we would face very damaging consequences for our Australian society.
of speech and s 18D of Racial Discrimination Act 1975 (Cth)
Section 18D of the Racial Discrimination Act 1975 (Cth)
was widely ignored by proponents of changes to the Act in the submissions heard
by the Committee. Section 18D is extremely relevant to the question of
whether the Racial Discrimination Act 1975 (Cth) impedes upon freedom
speech, as it provides a broad range of defences for unlawful behaviour under s
The lack of discussion regarding s 18D of the Racial Discrimination
Act 1975 (Cth) was addressed during the submissions of Mr Bill Swannie, the
Chair of the Human Rights/Charter of Rights Committee of the Law Institute of
Our current position is that 18D
should be left as it is ... There is an established body of case law interpreting
that provision. We say no changes should be made to s 18D.
The Australian Greens agree with the evidence of Ms Robin Banks,
the then Tasmanian Anti-Discrimination Commissioner, made to the Committee in
Hobart, stating that ss 18C and 18D strike an appropriate balance between the
right to freedom of speech and the right to freedom from racial discrimination:
I am of the view that the current
provisions, 18C and its following provisions, do appropriately find the balance
between freedom of speech as recognised in international law and other
international law rights, including the right to equality and the right to be
free from discrimination.
Not only would a weakening of s 18C send a message that the right
to freedom of speech of certain groups in the community is more important than
the right to be free from discrimination of other groups, several multicultural
groups provided the Committee with evidence that a watering down of s 18C would
in fact be detrimental to freedom of speech.
Professor Sarah Joseph, Director for Castan Centre for Human
Rights Law, is of the opinion that s 18C of the Racial Discrimination Act
1975 (Cth) is drafted too broadly. She states that although the right to
freedom of speech/freedom of expression is not an absolute right, and may be
subject to permissible limitations, the right to freedom of expression cannot
be displaced by the right to be free from offence or insult. It is Professor Joseph's
assertion that the words "offend" and "insult" should not
have been included in s 18C of the Racial Discrimination Act 1975 (Cth).
Professor Joseph does acknowledge that prior to any amendments, she would want
hear the views of those most affected by changes s 18 and that the judicial
interpretation of s 18C may mean that it constitutes a permissible limitation
on the right to freedom of expression.
Freedom of speech, however, may well be hindered by the
amendments to s 18C of the Racial Discrimination Act 1975 (Cth). It
has been documented that racism leads to the silencing of minority groups, and
is therefore impedes upon their right to freedom of speech/freedom of
expression. As was stated by Ms. Banks, the then Tasmanian Anti-Discrimination
Commissioner, with regards to the effect of racially offensive behaviour:
...they end up being silenced, which
is an anathema to freedom of speech. It causes people to feel that they have to
hide from society, shut themselves down, withdraw from active engagement and
not speak out because of fear of being further attacked for being different.
The fact that s 18C of the Racial Discrimination Act 1975
(Cth) may be said to protect the right to freedom of speech/freedom of
expression aside, that right is further protected by s 18D of the Act, which
provides broad exemptions to conduct being deemed unlawful under s 18C.
The Human Rights Law Centre (HRLC) states that we are currently
living in a time where more people are reporting instances of racism, and
therefore to weaken s 18C or 18D of the Racial Discrimination Act 1975
(Cth) would send that message that these instances are tolerable.
Mr Hugh de Krester, Executive Director of the HRLC (HRLC), when
asked what he thought would be the effect on the ground in Australia today of
watering down the protections contained in 18C stated:
I think you would have a rise in
racial vilification, a rise in racial discrimination and it would undermine the
multicultural success that we have in Australia.
Ms Adrienne Walters, Director of Legal Advocacy, HRLC added:
With that rise would come the
well-documented negative effects on people's physical and mental health, their
ability to participate productively in society. We know that it is connected to
reduced life expectancy amongst Aboriginal and Torres Strait Islander people ... 
Ms Walters went on to raise the example of the recent death in
custody of indigenous woman Ms Dhu. Ms Walters stated that the coroner in that
instance declared that institutionalised racism had had an impact into Ms Dhu's
Not only do Mr de Kretser and Ms Walters of the HRLC express
concerns regarding occurrences such as this if ss 18C and 18D of the Racial
Discrimination Act 1975 (Cth) were to be watered down, but they also
express concerns that watering down the relevant sections sends a message of
acceptance of such circumstance.
Dr Colin Rubenstein, Executive Director, Australia/Israel and
Jewish Affairs Council was asked if the Jewish community was seeing a rise in
anti-Semitism or racism:
We do see the resurgence of
anti-Semitism internationally, unquestionably, in many countries—in Europe in
particular, and elsewhere. Jeremy is the expert on that in Australia, and I
will let him respond to it. I think everybody around this table understands
that we are seeing a resurgence of a degree of xenophobia and populism, on the
extreme Left as well as the extreme Right, having an impact on mainstream
politics in many centres in a very worrying and perturbing way. Many of the
actors on the fringes are all for abolishing this legislation for their own
reasons, and I do not suggest that these are the reasons for many of the
conscientious, serious people who want reform for the best of reasons as they
see it. I am not suggesting that everyone wanting reform is in that popular xenophobic
camp—far from it, but many of them in that camp are for reform. The most
important thing is that these are really very effective tools in containing
that racial vilification. Diluting that useful tool at this time when, in
Australia and internationally, we do see resurgence of this political extremism
would be extraordinarily bad timing and would be very, very unhelpful in trying
to contain that extremism.
Mr Jeremy Jones, Director of International and Community Affairs,
Australia/Israel and Jewish Affairs Council added:
The issue of anti-Semitism and other
forms of racism in Australia ebbs and flows. At the moment, what we have
globally is a real belief that we are going through dynamic, dramatic changes
in all sorts of areas. We look at Europe and North America, and I think it is a
time when people are looking for some sort of moral leadership—and moral
leadership that says, 'Let's dilute protections against racism,' as against
moral leadership that says, 'You as an individual member of our community have
recourse against people who are trying to take away your human rights,' is a
very important statement to be reaffirming at this time.
The Australian Greens are concerned that those most likely to
seek assistance under s 18C of the Racial Discrimination Act 1975 (Cth)
are racial minorities who are often disempowered groups within our society. The
argument that s 18C impedes upon freedom of speech may be seen as an argument
that the right to freedom of speech of these racial minorities (as well as the
right to freedom from discrimination) is less important than the right to
freedom of speech of groups with whom the power imbalance in Australian society
swings in favour of.
The Australian Human Rights
Australian Greens accept the recommendations provided by the Australian Human
Rights Commission to assist the Commission with dealing with complaints that
s 46PH (1) of the Australian Human Rights Commission Act 1986 (Cth)
requires the Commission to investigate whenever a complaint is made. The
Australian Greens support the Commission's recommendation that the President be
given the power to terminate where investigation is not warranted.
reliable evidence was submitted to the Committee to suggest that the Commission
has solicited complaints.
Australian Greens are concerned that the Commission's educative function may be
curtailed by allegations of solicitation. The Commission's complaint handling
function is dependent on people being able to access it. With regards to s 18C
of the Racial Discrimination Act 1975 (Cth) the educative function of the
Commission is essential as it is often marginalised groups who will need to
seek access under that legislation.
complaint handling process of the Commission
Commission's current complaint process requires only a bare allegation that
unlawful discrimination has occurred for a complaint to be valid. The
Commission has made two recommendations to raise the threshold for Complaints
made to it:
- The person lodging a complaint must allege an act
which, if true, would constitute unlawful discrimination.
- The details of the alleged unlawful discrimination
must be set out in the written complaint, and the details provided must be
sufficient to indicate an alleged contravention of the relevant Act.
current grounds the Commission has for terminating a complaint are provided in
s 46PH(1) of the Australian Human Rights Commission Act 1986 (Cth). The
Commission has further recommended that these grounds should be expanded to
include the following:
The Commission recommends that the grounds for termination is
s 46PH(1) of the AHRC Act be expanded to include a power to terminate
where, having regard to all the circumstances of the case, the President is
satisfied that an inquiry, or further inquiry, into the matter is not
Commission upholds all human rights, and has committed to maintaining a balance
between of all human rights, including the right to freedom of speech and the
right to be free from discrimination.
The Australian Greens agree that the Commission has been effective at doing so.
Ethnic Communities Council of Victoria (ECCV) submitted that it has found, on a
review of data published by the Commission, that of the complaints received
regarding racial discrimination, only a small amount proceeded past the
complaints process with only 3% then proceeding past the conciliation process
is the contention of ECCV, based on this collected data that s 18C is "being
appropriately applied" and that there is therefore no evidence to suggest
a high amount of vexatious or trivial complaints are "jamming up" the
conciliation or court processes.
The Human Rights Law Centre also submitted that of all complaints
received by the commission in 2015-2016, only 4% "related to s 18C and
that 52% of complaints received under s 18C were resolved at conciliation, 12%
were withdrawn and only one complaint commenced court proceedings. Further
evidence provided by HRLC as to the ability of the Commission to handle to
complaints submitted to it are surveys of both complainants and respondents
which reported 88% of complainants "reported satisfaction".
complaints – the educative function of the Commission
No reliable evidence was submitted to the Committee to support the
assertion that the Commission is guilty of 'soliciting' complaints.
The Australian Greens have serious concerns regarding accusations of
solicitation of complaints by the Commission.
The Commission has an essential educative function, and that function is
not to be confused with solicitation. The Commission must be able to assist
people in understanding both their rights and responsibilities in the areas of
law which it covers.
The educative function of the Commission is particularly relevant with
regard to the Racial Discrimination Act 1975 (Cth). The individuals
likely to seek assistance under this legislation may suffer from the following
English language skills;
- A lack of understanding of
Australia's legal system and the avenues of justice that may be open to them;
- Experiences gained in detention
and/or migration which may have instilled a mistrust of authority and/or
The above factors were highlighted by Mr Cederic Manen, the Chief
Executive Officer of Family Planning Tasmania in his submission to the
Committee in Hobart:
A range of the Tasmanian population who are culturally and
linguistically diverse have endured significant post-traumatic stress
pre-migration which has impacted significantly on their cognitive ability. They
have been marginalised in their countries of origin and they do not generally
seel systematic type support because of their inherent suspicion of bureaucracy.
Commission would be unable to offer assistance to often marginalised groups
such as migrants if its educative function was in any way curtailed.
The Australian Greens are concerned that the case of Prior v
Queensland University & Others
(the QUT case) is often used to support argument that the Commission is
ineffective in handling complaints.
The Australian Greens agree with the statements that Professor Gillian
Triggs, President of the Australian Human Rights Commission made to the
... hard cases make bad law. The Queensland University of
Technology complaint ... [has] attracted public attention, particularly by those
advocating for a change to s 18C of the Racial Discrimination Act ... the
commission handles thousands of complaints every year without controversy.
The Australian Greens are concerned by calls to alter the Commission's
complaint handling process in response to the length of the QUT case. This concern
is heightened due to evidence from Professor Triggs, of the fact that the
complaint handling process of the Commission was not relevant to the length of
the QUT case, as the Commission's handling of the case was only slightly above
Senator McKim: I wanted to ask my first ever question
about the details of the QUT case, because I have always regarded it as an
outlier case. But just so that I understand: your evidence today and the time
line you have provided to the committee make it clear that the substantive work
that the commission did on this case was over a period from May 2015 to August
2015 – is that correct?
Professor Triggs: That is correct.
Senator McKim: ... you are looking at somewhere about a
four-month process there. That would be close to your average length of time to
resolve matters, would it not?
Professor Triggs: That is true. The average is 3.8,
and the amount of time we actually spent in this matter, outside the private
negotiations between the parties, was about four months.
The Commission should not be criticised for not dismissing the QUT case
at the first instance. As was stated by Professor Triggs:
Our role is to facilitate to bring the parties together to
encourage them to find a resolution. That is the role of our accredited
In evidence to the Committee, Professor Triggs stated:
The argument that the commission should have terminated this
matter early also misses the point that there are benefits to both respondents
and complainants in participating in the commission's processes, not least of
which is the potential for resolution so that cases do not have to proceed to
court. Termination by the commission has serious consequences. For the
complainant it may mean that the only option is to pursue a complaint by
applying to the court.
The case against the students was ultimately struck out by a
judge of the Federal Circuit Court as having no reasonable prospects of
success. Judge Jarrett was able to reach this view once all the evidence had
been filed. However, in a costs judgement published on 9 December last year
Judge Jarrett made it clear that at the time the case was filed with the
commission it could not be said that the case was hopeless and bound to fail. I
should just correct any misunderstanding: at the time the case was filed with
the court it could not be said that the case was hopeless and bound to fail.
The Commission does not have the function of a court. Even with the
addition recommended to s 46PH of the Australian Human Rights Commission Act
1986 (Cth), the QUT case would not have been necessarily terminated at the
first instance. Professor Triggs gave evidence to the effect that at the time
the complaint was made to the Commission, it seemed likely that the parties to
the dispute had a good chance of negotiating to a successful resolution. The
Commission's primary role is the facilitation of such arrangements.
The Australian Greens accept that the active role that the Commission
played in this matter was limited to only a few months and was broadly
consistent with the average time it takes to resolve such cases.
Senator Nick McKim
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