NSWCCL News

On Wednesday last week (22/3/170) the AG George Brandis introduced the Human Rights Legislation Amendment Bill 2017 into the Senate with the intention of its being considered very quickly. It immediately generated a wave of community opposition – especially from ethnic/multicultural community groups.  

On Thursday, the Bill was referred to the Legislative and Constitutional Affairs Committee for a ridiculously rushed ‘review’ with the Committee having to report by the following Tuesday (28/3/17).

This was a provocative time frame, effectively barring the community from any meaningful input into assessing the implications of the proposed changes on the ambit and operation of the Act. 

NSWCCL strongly opposes the proposed amendments in this Bill which will seriously and unnecessarily weaken protections against race hate speech  currently provided by s18(C ) of the Act.

Weakening s18(C )

While the Bill does not accede to the demands of the extreme opponents of the Act to repeal s18(C ), it does  include amendments that will significantly reduce the protections provided by the section:

  • the removal of the words   ‘offend, insult and humiliate’ and their replacement with  ‘harass   and
  • the replacement of the current objective test of the effects of alleged race hate speech (the standards of a ‘reasonable member of the relevant group’) with the standards of a ‘member of the Australian community’.

The PM and the AG assert these amendments  ‘strengthen’ the Act. This is an ambiguous description. They certainly do not strengthen the protection against race hate speech currently provided by the Act.  They will narrow and weaken these protections and create uncertainty as to what speech will be now be unlawful or permitted. There will be a lengthy period before a clear and settled judicial interpretation is established.

The existing standard of a ‘reasonable member of the relevant group’ as the basis for the objective test of the alleged offence is an appropriate standard for an offence that is experienced by particular groups and is particularly important in avoiding bias when the complainant is from a particularly disadvantaged or unpopular group.  NSWCCL opposes the amendment to broaden this to a member of 'the Australian community'. 

 In the current highly charged political context relating to asylum seekers, refugees, and multiculturalism and race relations these are dangerous amendments.    

The free speech justification 

The Government says it wants to protect free speech – but has not been able to provide an example of the kind of ‘free speech’ that will be protected by these changes that is not already protected either by the exceptions specified in s18(D ) or  by the well-established case law interpretation of s18(C ) requiring  the alleged act to have ‘profound and serious effects not to be likened to mere slights’.  

The most depressing aspect of the torrid campaign against s18(C ) and the AHRC (and its President)  by a small section of the community and the media  has been the way in which the facts of these cases – and the earlier Bolt case – have been seriously distorted to  create the false impression that s18(C ) and the AHRC together impose a draconian prohibition on free speech.

Notwithstanding all the outrage surrounding them, the QUT case was dismissed and the Bill Leak cartoon  – if the complaint had not been withdrawn- was almost certainly unlikely to be upheld as unlawful under the current Act.

NSWCCL agrees with those who warn that the removal of these offences from s18(C) at this point in time will send a clear message that it is now acceptable  ‘to offend, insult and humiliate’ people on the grounds of their race, colour, nationality or ethnicity.  Such an outcome will generate much hurt and tension amongst persons subject to this kind of speech and may well provide unintended impetus for the growth of racism and prejudice in Australia - especially against our Muslim community.  

NSW CCL position

In our submission to the Joint Parliamentary HR Committee we recommended removing ‘offend and insult’ and replacing it with ‘vilify’- not because the current words inappropriately restricted free speech in the operation of the Act, but because it is generally preferable that the Act clearly communicate the judicial interpretation of the offence.  

‘Vilification’ includes offending and insulting, but suggests they need to be  of a high level and serious, and not trivial, nature – and would thus bring the language of the Act into line with the operational judicial interpretation. It would not weaken the Act’s protection against racist speech but would help clarify current confusion as to what is, and isn’t, unlawful.

We were cautious in so recommending because of the possible unintended consequences of repealing long-standing categories of race hate speech in a politically toxic environment – and had previously argued that S18(C ) should be left unchanged.

The HR Committee could not make a specific recommendation on s18(C).  This should have signalled to the Government that  the wisest course would be to leave it alone. However by proposing to remove  ‘offend, insult and humiliate’ and replace them with ‘harrass’ the Government has chosen a more provocative, unacceptable  path. 

Given this and the ongoing toxicity and misinformation of the public debate NSWCCL reaffirms its earlier position- leave s18(C ) alone. 

Procedural issues 

The Bill also proposes numbers of amendments to the Australian Human Rights Commission Act 1986 dealing with the Commission’s procedures, its oversight and the role of the President.

NSWCCL considers the broad processes of the AHRC to have been, for over 20 years, highly effective in providing low cost access to a complaints conciliation process which has successfully resolved the large majority of valid complaints relating to race discrimination.

Nonetheless many of these amendments appear to be a sensible tightening up of procedures and  have broad support- including from the AHRC.

NSWCCL has not had time to carefully consider the implications of all these procedural amendments,   but we do reiterate our general concern that some of them may undermine the current accessibility of the AHRC to complainants with limited resources if the cost of lodging a complaint or of failure to have a complaint upheld – become a barrier.

It is clearly important that any reforms to improve the Commission’s effectiveness do not undermine its powers or independence and its current accessibility to persons wanting to make a complaint. 

The President of the AHRC has expressed particular concern in relation to a number of the amendments and understands the Government may address some of her concerns in the final version of the Bill. When giving evidence on the Bill on Friday the President expressed ongoing concern about numbers of procedural amendments that the Government did not appear willing to change.  As it is possible the procedural  amendments may proceed even if the amendments to s18(C ) are rejected by the Senate – it is to be hoped the Government can be persuaded to address the AHRC’s advice on the likely consequences of these amendments. 

The Senates role

The Bill is scheduled to return to the Senate today. A wise Government would be withdrawing the s18 (C ) amendments.  If not NSWCCL is hopeful that the Senate fulfils its legislative review functions and rejects these amendments in toto. 

 

Dr Lesley Lynch 

NSWCCL VP 

 

Human Rights Legislation Amendment Bill 2017

Human Rights Legislation Amendment Bill Xpl mem

NSWCCL submission 

Letter from  President AHRC to Leg Con Committee 


The right to protection against race hate speech 

The Freedom of Speech in Australia Report (28th January 2017) will bring no joy to those urging wholesale repeal  or major  weakening  of Part IIA of the Racial Discrimination Act  which prohibits racially motivated hate speech. 

At the end of another (unnecessary and rushed) review process, which attracted 11460 responses, the Parliamentary Human Rights Committee was unable to make a recommendation to the Government on this core provision.  Instead it restricted itself to listing 6 options that had the support of at least one Committee member. (R3).  Neither abolition nor major weakening of the provision appears in this list of options. Not one Committee member supported an extreme option.

The Report focusses on positive options that do not have as their intent the weakening of the provision’s vitally important protection against race hate speech:  whether or not it is best to leave the provision as it is on the grounds that case law interpretation of what it means is well established and the legislation is working well – or to tweak the provision by various proposed amendments to make explicit in the legislation these judicial interpretations on the basis that it is a good principle that the meaning of laws be clear and accessible.

Nothing new here – these issues have been canvassed many times including in the last review in 2014.    

But it is a great relief that the extreme views of those who demand repeal or major watering down of the provision have not been given any support in the Committee’s recommendations.

NSWCCL also welcomes the separate strong statements in the Report from the ALP and the Greens members opposing any change to this core provision.

The AHRC administrative processes

In response to the controversy generated by three recent cases and repeated attacks by the Government and others on the AHRC and its President, the Committee was also tasked with the review of the Commission’s handling of complaints and its general procedures - with particular reference to the alleged soliciting of complaints. Most of the Committee's recommendations (19 out of 22) relate to this broad area.

Given the ferocity and persistence of attacks by senior Government members and some sections of the media on the AHRC and its President,  NSWCCL  was concerned that the review could be used to seriously undermine the President and the organisation.  This has not been the outcome .

The evidence from many respected and qualified sources discussed in the Report essentially disposes of the public allegations of gross incompetence, unfairness, soliciting etc by the Commission and establishes that much of the commentary on the three recent cases was  seriously ill-informed.

Nonetheless,  the Committee has made numbers of recommendations relating to the AHRC procedures, its oversight and the role of the President.  Many  of these are a sensible tightening up of procedures  and are either supported by the AHRC or not likely to be opposed by  it. (For example the President has previously requested an amendment that will allow the Commission to terminate complaints not likely to succeed quickly. R 12).

Some recommendations seem redundant and some unnecessary but are not likely to be harmful- beyond the fact that they will consume resources.  It may be that the Committee is proposing these additional checks and safeguards to provide public confidence that the Commission will be operating fairly and effectively.

If they protect the AHRC and its President from the kinds of unwarranted  political attacks we have seen over the last two years  - they will have served a good purpose. 

NSWCCL is however concerned about some of the recommendations because of their potential to undermine the current accessibility of the ALHRC to complainants with limited resources if the cost of lodging a complaint or of failure to have a complaint upheld,  become too big a barrier.  

It is important that any reforms to improve the Commission’s effectiveness do not undermine its powers or independence and its current accessibility to persons wanting to make a complaint. 

A detailed analysis of the 22 recommendations will be posted shortly. 

Dr Lesley Lynch 

V-P NSWCCL 

 

Joint HR Committee Report Freedom of Speech 2017 

NSWCCL submission to Freedom of Speech Inquiry 2016


NSWCCL recently lodged a submission with the Attorney General’s Department and the Department of Communications and Arts in January 2017. We reiterated our view that the current metadata scheme is an affront to civil liberties and oppose its extension into civil proceedings. Extension of the uses to which metadata may be put is one of the reasons that we opposed the introduction of laws requiring collection and retention of metadata in the first place.

In our submission we noted the international experience, which suggests that metadata rarely makes a difference in criminal investigations. 

A commonly cited justification for allowing access to metadata is in family violence or international child abduction cases. However, experts in the field are not convinced this justification is warranted, bearing in mind that perpetrators of domestic violence can also use retained metadata to track their victims.

It is necessary to balance against this issue the fact that allowing access to metadata in civil proceedings can jeopardise the safety of whistleblowers and open the floodgates to fishing expeditions during litigation. Allowing access to metadata in these circumstances is a clear example of mission creep.

For the retention and use of metadata to be justified, it must be beneficial and proportionate to the benefit. In our view, it is not necessary for the reduction of terrorism and other serious crimes, let alone the far less serious issue of civil litigation. Extension of the uses to which metadata may be put is one of the reasons that we opposed the introduction of laws requiring collection and retention of metadata in the first place.

In noting this, NSWCCL recommended that:

  1. The existing legislation should be repealed and a targeted data surveillance scheme instituted instead. 
  2. The period for which information is stored should be reduced from 2 years to 6 months
  3. Civil proceedings should continue to be excluded.

 

Read Full Submission Here

 


In February 2016 a Senate Select Committee was set up to ‘inquire into whether a national integrity commission should be established to address institutional, organisational, political and electoral, and individual corruption and misconduct.’ NSWCCL gave some time to considering what position –if any-  it would take on this contentious matter,  however the Turnbull-generated double dissolution meant the Inquiry lapsed.

The Committee produced an interim report of no great consequence  in that it did not go beyond recommending further research into appropriate anti-corruption systems. It did however canvass the issues with the current system in some detail and it did conclude that there were shortcomings that needed addressing. Even this cautious conclusion was too much for the two government members of the committee (Eric Abetz and David Johnson) and they included a dissenting view there was no evidence of such shortcomings. 

The inquiry attracted  some very useful submissions - notably that of the Law Council and the NSW ICAC. 

The political debate as to the need for a national anti-corruption body is again very much alive. Not surprisingly, the Senate moved  as soon as the current session began to reactivate an inquiry into whether a National Integrity Commission is needed and if so its scope and power.  It is to report by 15th August. The Senator Gallagher moved the resolution on behalf of the leader of the ALP  in the Senate (Penny Wong). 

This Senate decision pre-empted a motion later that day from the leader of the Greens, Senator Di Natale  calling on the Senate to bypass an inquiry and  move straight to the establishment of ‘an independent federal anti-corruption commission to oversee federal members of parliament and the public service”. This was defeated.