Dissenting Report from Coalition Senators

Introduction

1.1The inquiry by the Legal and Constitutional Affairs Legislation Committee (committee) into the Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 (No 2) (the Bill) provides further and overwhelming evidence – that the Bill must be passed by the Senate.

1.2In the words of the government-appointed Special Envoy to Combat Antisemitism, Ms Jillian Segal AO, antisemitism at Australian universities is so ‘embedded’ that only a Commission of Inquiry into antisemitism at Australian universities (Commission of Inquiry) can adequately address ‘endemic and systemic antisemitism’ which has caused such harm to Jewish students and staff.

1.3As Ms Segal stated in her submission:

Antisemitic behaviour is not only present on many campuses but is an embedded part of the culture. Universities have not taken appropriate action to denounce and suppress it: it has become systemic. The Jewish students are traumatised and feel isolated and unsafe. They are not participating as they should in university life. They have been told by their university administration to stay home for their own safety. This normalised antisemitism is incredibly dangerous to our society as it is an attitude and behaviour that eats away at the fabric of the mission of the tertiary sector.[1]

1.4Antisemitism is abhorrent and has no place in Australian society including on university campuses.[2]

1.5However, we are deeply disappointed a majority of the committee has not endorsed the calls for a Commission of Inquiry from many distinguished Jewish organisations, representing a large number of Jewish Australians, as well as hundreds of Jewish students and academics who made submissions to this inquiry and bravely shared their stories.

1.6Following Hamas’s atrocities on 7 October 2023, the Albanese government has regrettably not shown the strength of leadership to hold universities to account when they have failed to ensure they discharge their obligation to keep all students and safe on campus, including Jewish students and staff.

1.7This is perhaps best illustrated by the government’s tone-deaf decision to engage the Australian Human Rights Commission (AHRC) to conduct a university racism study[3] in which Jewish organisations have made clear they have no confidence or faith, particularly in light of recent controversies over the AHRC’s failure to address antisemitism.[4]This is made all the worse because the AHRC’s final report is not due until 13 June 2025, following the federal election, reflecting the government’s manifest unwillingness to deliver immediate solutions to the antisemitism crisis at Australian universities.

1.8Based on evidence received by this inquiry, only the powers, confidentiality and expertise offered by a Commission of Inquiry, led by a respected and eminent jurist, is capable of undertaking the detailed inquiry necessary to deliver the systemic reforms required to protect the safety and wellbeing of Jewish university students and staff into the future.

1.9An independent Commission of Inquiry will have the confidence of the Australian Jewish community to undertake this important task.The Australian Jewish community is calling for this inquiry.The Senate should listen to their calls.

Background

1.10On 16 May 2024, Opposition Leader the Hon Peter Dutton MP, on behalf of the Coalition and together with a number of crossbench senators and members, wrote to the Prime Minister, calling for his government to support a Commission of Inquiry. The letter stated, in part:

University authorities have repeatedly failed to create an environment where Jewish staff and students can work free of harassment and intimidation. Many university authorities have failed to recognise terms that are interpreted as calling for the violent destruction of Israel and the Jewish people. University authorities have frequently failed to exercise their powers to discipline staff, students and visitors to campus for engaging in antisemitic activity.

We are seeking a judicial inquiry as the most authoritative form of inquiry. An inquiry led by an independent respected jurist with the powers to grant privileges and immunities, to take evidence in confidence, assisted by senior barristers skilled in cross examination, would ensure that this problem - which is a serious matter for the social cohesion of this country and the international reputation of the Australian University Sector - is dealt with properly and seriously.

1.11That evening, Mr Dutton said in his Budget Reply address:

It will also take a Coalition Government to turn the tide of anti-Semitism afflicting our country. Anti-Semitism is not just a threat to one segment of our community. It’s a threat to our social cohesion and democratic values. Some of the most strident antisemitic standard-bearers have come from our university campuses. We will also provide the moral and political leadership which makes it abundantly clear that we expect the law to be enforced readily – not reluctantly – against those inciting hatred and violence.

1.12A private member’s bill to establish a Commission of Inquiry was first introduced into the House of Representatives by the member for Berowra, Mr Julian Leeser MP, on 3 June 2024.In his second reading speech, Mr Leeser stated:

Today Australia faces its greatest threat to multiculturalism with the emergence of antisemitism. In particular, the studied indifference to Jew hatred on our campuses. Jewish staff and students are abandoned by those charged with creating a safe place for students to study and for staff to research, teach and work. This is a tragedy for Australia which unlike almost anywhere else has been welcoming to the Jewish people.

From the days of the First Fleet when a dozen Jewish convicts stumbled ashore at Sydney Cove, Jewish people have had the opportunity to thrive free from discrimination and hatred. With that freedom and opportunity, Jewish Australians have contributed to our country. Our job in this place is to ensure that all Australians enjoy the right to education free of harassment and intimidation. Our job is to ensure that the next generation of Jewish students are not discouraged from entering any field of Australian life.[5]

1.13With the government declining to progress Mr Leeser’s private member’s bill to a vote in the House of Representatives, on 25 June 2024 the Shadow Minister for Education, Senator the Hon Sarah Henderson, introduced the Bill, being a private senator’s bill, which substantially reflects Mr Leeser’s private member’s bill.

1.14In her second reading speech, Senator Henderson documented the many incidents of antisemitism which have occurred on university campuses since 7 October 2023 – the protest encampments; the invasion of classrooms by protestors who sought to identify and, in some cases, photograph Jewish students; the chanting and display of antisemitic slogans and symbols, the “kid’s excursion” where children were encouraged to chant “intifada” (which is readily understood to be a call for a terrorist uprising against Jews); the failure to enforce university rules against discrimination, hate speech and racial vilification; and the capitulation to demands by protestors that universities disclose their defence and security research contracts and other related work.

1.15Senator Henderson also condemned the University of Sydney’s failure to raise the alarm over the presence of members of the extremist group, Hitz ut-Tahrir, on campus, stating:

Mr Scott’s decision to turn a blind eye to the activities of radical extremists on campus is a serious dereliction of duty. Appallingly, the rationale for not acting, according to a university spokesman, was because Hizb ut-Tahrir is “not deemed a terrorist organisation by authorities” here in Australia. …

I have called on the Albanese Government to urgently investigate all circumstances surrounding the presence on campus of Hizb ut-Tahrir and any other extremist group at the University of Sydney and to overturn this reckless agreement with activists, along with a similar agreement reached by the University of Melbourne.

The government must urgently act to restore the reputation of Australia’s oldest university which is supported by more than $1 billion of taxpayers’ money a year. So far, we have heard nothing but silence from Labor’s Education Minister, Mr Clare.[6]

A failure of leadership by universities

1.16As the committee has outlined in its report, throughout this inquiry we heard and read many heartbreaking stories where Jewish students felt compelled to choose between their education and their safety.This is a choice no Australian student should ever have to make and is a damning indictment on some university leaders.

1.17Many Jewish students and academics felt they could not attend university, wear symbols of their faith or move about their campus freely, for fear of reprisals such as repeated verbal attacks, harassment or intimidation. Parents of Jewish students have been distraught about the treatment of their children.Complaints by Jewish students and academics frequently fell on deaf ears, compounded by the lack of a universal definition of antisemitism, including in relation to protest activity, the display of antisemitic slogans or, as was the case at the University of Sydney, the menacing presence of members of the extremist group,Hizbut-Tahrir.

1.18While all universities have a duty to uphold the principles of academic freedom and freedom of speech and to respect the right to legitimate and peaceful protest, frequently universities did not recognise the need to limit or prevent protest conduct when it extended to violence, threat or intimidation.Consequently, behaviour or activities which were in blatant breach of university rules were tolerated, and Jewish students and staff paid a very heavy price.

1.19The failure of some universities to promptly shut down and remove protest encampments, which fueled so much antisemitic hate and incitement, was not just a case of not understanding when a line had been crossed. It also constituted a serious dereliction of duty to Jewish students, staff and visitors, as well as the broader university community.

1.20It is therefore astonishing universities took so long to ensure protest encampments were dismantled, with the University of Sydney’s Vice-Chancellor initially defending the encampment as a “legitimate protest”.[7]Similarly, Melbourne University took more than a week to end the unlawful occupation of its Arts West building by protestors which led to the closure of the entire Parkville campus for one day, impacting the education of every student.

1.21At the public hearing in Canberra on 20 September 2024, the Australasian Union of Jewish Students said:

…I can say with confidence that the University of Sydney is probably one of the worst places to be a Jewish student right now, and that Mark Scott has failed his students. We have tried repeatedly to engage, after the first meeting with him, his chief of staff had to apologise for his behaviour as soon as he left the office.[8]

1.22Explaining its decision to call for the resignation of the University of Sydney Vice-Chancellor, the Zionist Federation of Australia stated:

…the university capitulated to intimidation tactics of these protestors - individuals were ignoring university rules, they were threatening, intimidating Jewish students, they were encouraging children to chant about ethnic cleansing of Jews, and they’ve been rewarded for their actions.[9]

1.23Under questioning, Professor Scott conceded he and the university had failed Jewish students and staff:

I have failed them, and the university has failed them.That is why we have made significant changes to our policy settings, that is why we have a further review underway, that is why we are committed to working with the Antisemitism Envoy, the Human Rights Commission review and a judicial inquiry, if a judicial inquiry emerges.[10]

1.24In the limited time Coalition senators had to question university vice-chancellors at this public hearing, we were left with more questions than answers.For instance, we are still seeking an explanation from the Australian National University (ANU) as to why the expulsion of a student for publicly declaring that Hamas deserved ‘unconditional support’ was overturned. It is of deep concern this student is now running for election as president of the ANU students’ association which, as we heard, poses further major safety fears for Jewish students.

1.25The committee also heard and received disturbing evidence from Jewish academics and other staff who were badly failed by their union, the National Tertiary Education Union (NTEU), such that some 57 people resigned in protest.[11]It is appalling that Jewish staff felt compelled to resign, leaving them without union representation.

1.26In its submission to the inquiry, the Australian Academic Alliance Against Antisemitism stated:

We do not know the extent to which antisemitism has become embedded in the [NTEU], and whether it is possible for Jewish academics to have a union that can represent their workplace interests without compromising their core beliefs.[12]

1.27This should give rise to deep reflection on the part of the leadership of the NTEU.

A failure of leadership by the Albanese government

1.28With the exception of the appointment of the Special Envoy to Combat Antisemitism which we strongly endorse, Coalition senators are deeply troubled about the Albanese government’s inadequate response to the antisemitism crisis on university campuses.

1.29Not only has the Minister for Education, the Hon Jason Clare MP, largely declined to hold universities to account for their failings, the government has surprisingly not imposed any additional requirements on universities to improve the safety and wellbeing of Jewish students, staff and visitors. This concern is reflected in the submissions of many Jewish organisations.Notably, given it would take some time to establish a Commission of Inquiry, Ms Segal in her submission argued that a number of measures should be implemented immediately, an approach we have endorsed as set out in our Recommendation 2.

1.30As mentioned above, the government’s decision to engage the AHRC to conduct what we regard as a woefully inadequate racism study constitutes a major failure to take campus antisemitism seriously.It is also of deep concern that the Minister for Education, at no stage, called for the removal of protest encampments or a reconsideration of disclosure agreements entered into between some universities and protest groups.Despite the Coalition calling on the government to investigate the presence of members of the extremist group, Hizb ut-Tahrir, at the University of Sydney which was known to the office of the vice-chancellor,[13] the minister took no such action.

1.31We are also concerned the government failed to demand a more comprehensive response from TEQSA, the higher education regulator, which inconceivably took eight months to write to universities about their obligations to keep students and staff safe following the Hamas terrorist attack.[14]It was open to the minister to request the regulator impose registration conditions concerning campus safety on some universities and take other compliance action, but this did not occur.As we heard, the minister has convened just two 30-minute meetings with TEQSA since last October, with TEQSA informing the committee that:

The minister wanted us to continue this engagement with universities and to continue to draw the universities' attention to the types of issues that we were flagging from the various sources of information that we had.[15]

1.32It is noteworthy the Prime Minister was required to publicly rebuke the Minister for Education following his ill-informed statement that slogans such as “river to the sea” and “intifada” meant different things to different people, a position heavily criticised by Jewish leaders.[16]

1.33Following the Coalition’s advocacy for an independent student ombudsman, we note the proposed ombudsman can and must play a crucial role in overseeing complaints of campus antisemitism, aided by an antisemitism expert as we have recommended.However, it cannot be said that this was a response to rising campus antisemitism, given the government first raised this prospect on 6 October 2023.[17]

Reasons for a Commission of Inquiry

1.34Numerous submissions referred to the benefits of a Commission of Inquiry with Royal Commission like powers.

1.35One of the most powerful reasons for a Commission of Inquiry is to provide confidence to members of the Jewish community, who have suffered antisemitic attacks, that they can safely make a submission without fear of reprisals, retaliation, vilification, bullying or even threats to physical safety.

1.36The sense of fear in the Jewish community is palpable.This is evident in hundreds of submissions. It is a disgraceful state of affairs that Jewish students and academics fear they will suffer adverse consequences if they use the complaint systems established by universities to report antisemitic conduct on campuses.However, that is the reality of the current situation.

1.37The fact that approximately 170 submitters requested that their name be withheld and over 250 submissions could only be received, in all the circumstances, on a strictly confidential basis is demonstrable evidence that any inquiry would need to take evidence ‘in camera’ or confidentially, and in a manner which inspires the confidence of submitters.On the basis of the submissions made by members of the Jewish community themselves, this can only be achieved through the vehicle of a Commission of Inquiry led by a respected jurist.

1.38In addition, to properly inquire into the responses of the universities will require the power to subpoena witnesses and require the production of relevant documents. Many of the incidents detailed in submissions demand a forensic examination of the response of the universities.How did the university respond to a particular complaint?Under what circumstances were complaints ignored or disregarded?How many complaints went unreported due to a lack of confidence in our universities?What were the consequences? What were the considerations in the minds of administrators as they decided upon a course of action?Many of these questions can only be answered through a Commission of Inquiry with the powers to gather the necessary evidence.

1.39With all due respect to senators calling for an inquiry by the Parliamentary Joint Committee on Human Rights, the time for a further parliamentary inquiry has passed.This inquiry has shone a bright light on the scope of the crisis on our campuses.A further parliamentary inquiry, even with the best of intentions, has neither the resources, capacity nor powers to undertake this important work.A full time Commission of Inquiry with the powers of a Royal Commission is required to undertake the forensic examination required to address the crisis.

1.40Given their systemic failings, it is also not sufficient for universities to review their own policies, even in collaboration with the Special Envoy to Combat Antisemitism and TEQSA, as recommended in the majority report.[18]A far more compelling proposal is that universities must be required to adopt best-practice policies and procedures as recommended by the Special Envoy to Combat Antisemitism, with reference to the progress which has been made at universities such as Columbia University and New York University in the United States.[19]

1.41There was discussion in the majority report as to the time a Commission of Inquiry may require to report.However, it is our strong view (shared by many submitters) that the establishment of a Commission of Inquiry with the power to subpoena witnesses, require the production of documents and with the benefit of relevant privileges and immunities will, of itself, act to recalibrate the responses of our universities.From the time the Bill is passed, universities would be on notice that their response to the antisemitism crisis on university campuses will be subject to forensic examination and consideration, driving greater accountability, transparency and responsiveness.

Adoption of IHRA working definition on antisemitism

1.42As noted in the majority report, the Australian Government has adopted the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism.This is supported by both the Government and the Opposition.Hence, it is appropriate that the Bill refer to adoption and implementation of an appropriate definition of antisemitism such as the IHRA working definition.

1.43In relation to claims that reference to the IHRA definition may have a potential negative impact on academic freedom and freedom of speech, we disagree.With respect to claims the IHRA working definition conflates political criticism with antisemitism, we also disagree.

1.44We note the commentary accompanying the IHRA definition specifically states ‘However, criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic’.[20]

1.45This was reflected in the ECAJ submission where it was submitted:

This is not to suggest that it is antisemitic to criticise Israeli government policies or practices or the statements and conduct of Israeli political figures, in the same way that criticisms are levelled against other governments and political figures.Nor is it antisemitic to hold particular views about the borders of Israel, settlements, refugees, the legal status of Jerusalem or the viability of a two-State outcome to the Israel-Palestinian conflict.Among Israelis, the Jewish people and others who support Israel there is a wide range of views about these issues.However, the discourse about Israel on many university campuses in recent years, and especially since the Hamas atrocities on 7 October 2023, has gone well beyond discourse of this nature.[21]

1.46The conduct referred to in the hundreds of submissions received by this committee goes well beyond the realm of criticism of Israeli government policies and actions.On the basis of the overwhelming number of submissions received by this inquiry, it is conduct which threatens the safety and wellbeing of Jewish students and academics on our university campuses.It is not conduct on the margins.There has been a lack of evidence to support the assertion that adoption of the IHRA working definition of antisemitism would act as an impediment to freedom of speech or academic freedom.The more relevant question is why haven’t all universities adopted the IHRA working definition of antisemitism?

Conclusion

1.47Rising antisemitism at Australian universities is a serious matter for the social cohesion of our country and the global reputation of our tertiary education sector. As Senator Henderson referenced during the public hearing on 20 September 2024, one of the most powerful representations she has received was from the leader of an Islamic school in western Sydney who made clear that Muslim parents do not want to send their children to a university campus racked with hate and division.

1.48It is untenable that Jewish students have been forced to choose between their education and their safety.Even if a Commission of Inquiry does not eventuate, this Senate inquiry into the Bill, along with the exceptional advocacy of Mr Leeser and the most substantial contribution of Jewish Australians, has shone a much-needed spotlight on the case for urgent action.

1.49We are inspired by the leadership of Mr Ben Sasse, the president of the University of Florida, who stated:

We will always defend your rights to free speech and free assembly—but if you cross the line on clearly prohibited activities, you will be thrown off campus and suspended. … that means a three-year prohibition from campus. That’s serious. We said it. We meant it. We enforced it. We wish we didn’t have to, but the students weighed the costs, made their decisions, and will own the consequences as adults. We’re a university, not a daycare. We don’t coddle emotions; we wrestle with ideas.[22]

List of recommendations by Coalition senators

Recommendation 1

1.50That the Senate and the Parliament pass the Bill at the earliest opportunity so that a Commission of Inquiry into antisemitism at Australian universities can be established as soon as practicable.

Recommendation 2

1.51That the Australian Government directs the Special Envoy to Combat Antisemitism, Ms Jillian Segal, to urgently recommend, in consultation with TEQSA:

best-practice university policies and procedures to combat antisemitism, including in relation to complaints handling and fines for non-compliance;

antisemitism training for university leaders; and

any other practical initiative to combat antisemitism at Australian universities.

1.52That the Australian Government considers how best to implement the recommendations of the Antisemitism Envoy including any necessary amendments to the law.

Recommendation 3

1.53That the Australian Government amends the law so that all public universities are required to either adopt the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism or give detailed reasons as to why such a definition has not been so adopted, to be published and updated prominently on each university’s website on 1 February and 1 August of each year.

Recommendation 4

1.54That the Australian Government amends the law so that public universities are required to disclose a breakdown of all revenues and all agreements, arrangements or understandings in relation to the provision of such revenues including with foreign persons or entities.

Recommendation 5

1.55That the proposed National Student Ombudsman be supported by a person expert in antisemitism and that such requirement be included in the National Student Ombudsman Rules.

Footnotes

[1]Jillian Segal AO, Special Envoy to Combat Antisemitism, Submission 422, p. 1.

[2]As also reiterated in the majority report, p. 53, para. 2.252.

[3]Australian Human Rights Commission, A Study into the Prevalence and Impact of Racism in Australian Universities,29 July 2024, https://humanrights.gov.au/our-work/race-discrimination/projects/study-racism-australian-universities (accessed 1 October 2024).

[4]See for instance: Josh Taylor, ‘Julian Leeser accuses Australian Human Rights Commission of failing to address antisemitism’, The Guardian, 13 March 2024, https://www.theguardian.com/australia-news/2024/mar/13/julian-leeser-accuses-australian-human-rights-commission-of-failing-to-address-antisemitism (accessed 1 October 2024) and Patrick Durkin, ‘’Toxic’: Human rights watchdog at war with itself over Gaza’, Australian Financial Review, 31 May 2024, https://www.afr.com/politics/federal/toxic-human-rights-watchdog-at-war-with-itself-over-gaza-20240531-p5ji73 (accessed 1 October 2024).

[5]Mr Julian Leeser MP, House of Representatives Hansard, 3 June 2024.

[6]Senator the Hon Sarah Henderson, Senate Hansard, 27 June 2024.

[7]Professor Mark Scott, ‘Uni protests must strike balance of free speech and safety’, The Australian, 20 May 2024.

[8]Mr Zachary Morris, Vice-President, Australasian Union of Jewish Students, Committee Hansard, 20September 2024, p. 4.

[9]Mr Alon Cassuto, CEO, Zionist Federation of Australia, Committee Hansard, 20 September 2024, p.14.

[10]Professor Mark Scott, Vice-Chancellor and President, University of Sydney, Committee Hansard, 20September 2024.

[11]Ms Gabrielle Gooding, National Assistant Secretary, National Tertiary Education Union, Committee Hansard, 20 September 2024.

[12]Australian Academic Alliance Against Antisemitism, Submission 603, part 2, p. 4.

[13]https://sarahhenderson.com.au/labor-must-urgently-investigate-university-of-sydneys-serious-failures-to-safeguard-students-from-extremists.

[14]https://sarahhenderson.com.au/labors-education-minister-again-fails-the-leadership-test-on-antisemitism/.

[15]Dr Mary Russell, CEO, Tertiary Education Quality and Standards Agency, Committee Hansard, 20September 2024, p. 71.

[16]https://www.theaustralian.com.au/nation/antiisrael-slogans-mean-different-things-to-different-people-minister/news-story/ed7dd1ea15f394a98dd3cfbba6437a1c.

[17]https://www.abc.net.au/news/2023-10-06/student-ombudsman-considered-university-sexual-assault/102941044.

[18]Majority report, p. ix, para. 2.258.

[19]Jillian Segal AO, Special Envoy to Combat Antisemitism, Submission 422, Appendix 4.

[20]See https://holocaustremembrance.com/resources/working-definition-antisemitism.

[21]Executive Council of Australian Jewry, Submission 97, p. 4.

[22]Ben Sasse, ‘The Adults Are Still in Charge at the University of Florida’, Wall Street Journal, 3May2024.