Chapter 1Introduction
1.1On 4 July 2024, the Senate referred the Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 (No. 2) (the Bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 4 October 2024.
Conduct of the inquiry and acknowledgement
1.2In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals, inviting them to make a submission by 23 August 2024. The committee received and published 669 submissions, which are listed at Appendix 1. The committee received 129 short statements (of 250 words or less), of which 13 were published as submissions. The committee also received two form letters: Form letter 1 (46 received in total) and Form letter 2 (2822 received in total).
1.3The committee held public hearings in Canberra on 17 September 2024 and 20September 2024. The lists of the witnesses who appeared at the hearings are at Appendix 2.
1.4The committee thanks those organisations and individuals who made submissions and who gave evidence at the public hearing.
1.5The committee particularly thanks and acknowledges those who shared their personal stories with the committee.
Structure and scope of the report
1.6This report comprises two chapters:
Chapter 1 provides background information and identifies the Bill’s key provisions; and
Chapter 2 examines the key issues raised in relation to the Bill before setting out the committee’s findings and recommendations.
Note on references
1.7In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.
Purpose of the Bill
1.8The Bill would establish a commission of inquiry, with Royal Commission-like powers, to inquire into antisemitism at Australian universities, led by a current or former Judge.
1.9It is proposed that the inquiry would ‘examine incidents of antisemitic activity on campus both before and after 7 October 2023’ and in doing so, would ‘consider whether the response of university leaders, regulators, representative organisation and others has been adequate’.
1.10The Bill’s Explanatory Memorandum states the commission of inquiry would have the ‘power to grant privileges and immunities, hear evidence confidentially without witnesses needing to fear reprisals, and be assisted by skilled silks’ with the aim of effectively investigating the rise of antisemitism on university campuses.
1.11In her second reading speech, Senator the Hon Sarah Henderson explained that ‘addressing antisemitism on campus is so important because what happens on campus today sets the tone for the Australia of tomorrow’.
Background to the inquiry
1.12The Australian Jewish University Experience Survey, released in August 2023, showed that 64 per cent of Jewish university students had experienced antisemitism on campus. The survey also reported that 61 per cent of Jewish university students that complained following an occurrence of antisemitism were not satisfied with the response.
1.13In its 2023 Report on Antisemitism in Australia, the Executive Council of Australian Jewry (ECAJ) reported that 495 anti-Jewish incidents were logged with ECAJ for the period 1 October 2022 to 30 September 2023. The number of incidents in 2023 represented a 3.5 per cent increase from the number of incidents in the previous 12-month period. Overall, from 2013 to 2022, there has been an average of 316 antisemitic incidents logged with ECAJ each year.
1.14In December 2023, ECAJ released provisional statistics on the number of antisemitic incidents logged with ECAJ that October and November. ECAJ reported that 316 antisemitic incidents were logged with ECAJ in October 2023 and 346 in November 2023, a total of 662 incidents during those two months.
Key provisions
1.15The Bill covers the following topics necessary to set up a commission of inquiry: the appointment of the commissioner, matters for inquiry, and procedural and administrative matters relating to the inquiry.
Appointment of commissioner
1.16The Bill would require the minister to appoint a judge, by notifiable instrument, to conduct a commission of inquiry into matters set out in the Bill, make recommendations relating to those matters and report to the minister on such matters and recommendations.
1.17Clause 5 states that only current or former judges of a Supreme Court of a State or Territory, the Federal Circuit and Family Court of Australia, the Federal Court of Australia or the High Court of Australia would be eligible for appointment.
Matters for inquiry
1.18Clause 6 of the Bill proposes a range of matters for the commissioner to investigate as part of their inquiry. These include, but are not limited to:
the incidence of antisemitic activity on university campuses;
the responses to antisemitism on university campuses;
steps taken by universities to recognise, understand and reject antisemitism;
the adoption and implementation of an appropriate definition of antisemitism such as the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism;
the arrangements to deal with antisemitism on campus;
the adequacy of arrangements relating to the security and safety of Jewish students, academics, staff and visitors;
steps taken to ensure antisemitic content is not included in courses; and
the support provided to academics, staff and students experiencing antisemitism on or off campus.
1.19The commissioner would be required to report on, and make recommendations in relation to, these matters.
Procedural and administrative matters
1.20The Bill also includes provisions relating to procedural and administrative matters that would establish the operating environment for the commission of inquiry. Such matters include that:
hearings may be held, with the location and procedure of the hearings to be at the commissioner’s discretion;
the commissioner would not be bound by the rules of evidence;
the commissioner may be assisted by departmental employees at the agreement of the Secretary;
the Royal Commissions Act 1902 would apply as if the commission of inquiry were a Royal Commission, and the commissioner were a member of a Royal Commission; and
the commission of inquiry would not be bound by the Privacy Act 1988, and it would be excluded from the operation of the Freedom of Information Act 1982.
1.21The Bill would also allow the minister to make rules, by legislative instrument, prescribing matters required or permitted to be prescribed by the rules, or matters necessary or convenient to be prescribed for carrying out or giving effect to the Bill.
Consideration by other parliamentary committees
1.22When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.23The Scrutiny of Bills Committee examined the Bill and noted there may be concerns in relation to two matters: the appropriate review of decisions in relation to procedural fairness, and undue trespass on personal rights and liberties in relation to significant penalties and in relation to privacy.
1.24The Human Rights Committee examined the Bill and noted that as the Bill is intended to prevent antisemitism, it ‘may promote a number of human rights’. Additionally, it noted that rights may be limited ‘to the extent that the Bill applies the powers in the Royal Commissions Act 1902’.