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.
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
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
The annual Palm Sunday March this year will be a protest against the treatment of asylum seekers and refugees by Australia, both in the offshore detention centres of Nauru and Manus Island and in those on the Australian mainland. The CCL Committee is formally endorsing this protest and march, and urges you to join us.
Conditions for the refugees and asylum seekers dumped on Manus Island and Nauru remain intolerable. Manus has claimed the lives of Reza Barati, Hamid Khazaei, Kamil Hussain and Faysal Ishak Ahmed, while Omid Masoumali died on Nauru. There will be more deaths, if we do not act effectively.
There are also around 30,000 refugees within Australia seeking asylum. At present, most will at best receive temporary protection visas, leaving them in fear of forced return to danger, and unable to reunite with their families.
The proceedings will begin in Hyde Park North, at 2.00 p.m., on Palm Sunday, April 9. We look forward to seeing you there. Find out more about the rally on their Facebook event page.
Welcome to the February 2017 issue of the NSWCCL Newsletter
In this issue:
National issues | Defending s18C and the AHRC...again! | Asylum Seekers | Ratification of OPCAT | Civil Liberties perspective on a national integrity body | Access to telecommunications data in civil proceedings
NSW Issues | New police oversight body | Defending the right to protest | Know your Rights Booklet | Reorganisation of Justice portfolio
CCL Issues | 10th Anniversary Marsden Lecture | Submissions | Join an Action GroupRead more
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 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.
A new body of vital importance to the NSW justice sector -the Law Enforcement Conduct Commission (LECC) – was set up in January following the passage of The Law Enforcement Conduct Commission Act last year. It brings together the oversight and investigative roles of the Police Integrity Commission, the Police Division of the Office of the Ombudsman and the Inspector of the Crime Commission into a single civilian body to oversight police operations. It has royal commission type powers in some contexts. Its oversight powers relate to the NSW Police Force and the NSW Crimes Commission.
It is the latest outcome from the long (and unfinished) campaign to achieve effective independent oversight of NSW Police operations and was largely shaped by the recommendations of the 2015 Tink Report. There are grounds to expect this body will significantly improve some aspects of police oversight and accountability but there are gaps and weaknesses in its structure which do not augur well for the much needed reform of police culture in critical areas and may undermine its overall effectiveness.
Both s18c of the Race Discrimination Act and the Australian Human Rights Commission are again under serious attack from the Federal Government.
George Brandis’ attempt to weaken s18c in 2014 was soundly repudiated by the Australian people and the then PM (Abbott) wisely retreated and abandoned the amendment. NSWCCL strongly opposed the Brandis Bill and thought the Government unlikely to try again given the depth of community anger aroused by the proposal..
We were misguided. Emboldened by the recent rise of the far right here and overseas – and within the Liberal Party - the Government is now targeting not just the legal protections against racist abuse provided under s18C but also the processes of the AHRC which have served Australia well for 20 plus years.
This new push poses a serious threat to the protections currently provided by the RDA and to the AHRC. We have therefore again joined many others in arguing the case against weakening s18C and in supporting the overwhelmingly positive record of the AHRC in resolving the vast majority of complaints effectively through conciliation while dismissing those that are trivial or vexatious. We are not aware of any cases under the RDA which have unreasonably constrained freedom of speech in Australia.Read more
Jim Marsden welcomes the audience and gave powerful personal insight into his brother John's life
On 1 December 2016 the NSWCCL and the Marsden family hosted the 2016 John Marsden Memorial Lecture. John Marsden was a former President of the NSWCCL, former President of the NSW Law Society and activist for LGBTIQ rights and civil liberties. The event was held at the Masonic Centre in Sydney. It was a particularly successful and well-attended event, with over 120 people. Jim Marsden welcomed the audience and gave a powerful personal insight into his brother John's life, which was so tragically damaged by society's then deeply hostile attitude to homosexuals. Read more here.
Pauline Wright, Vice President of the NSWCCL and President elect of the New South Wales Law Society, spoke briefly of her experience as a young lawyer working for John Marsden, before introducing The Hon Michael Kirby AC CMG (an honorary life member of NSWCCL.)
Michael Kirby began with some thoughts on his friend John Marsden, including that John had chosen to be more “in your face” about his sexuality than others at the time.
Kirby's speech (SEE FULL SPEECH HERE) reminded us of the contribution of John Marsden to the education of LGBTIQ students, noting that attendees at the lecture included recipients of scholarships that he established at the University of Western Sydney.
He mentioned prior John Marsden memorial lectures, by Anand Grover, Professor Jenni Millbank and then DPP Nick Cowdery (now an active member of the NSWCCL Committee). He thanked Nick Cowdery for his presence at this lecture.
Michael’s topic was John Marsden, LGBTIQ Rights today: the Ongoing Challenge for Equality. He delivered a clear and illuminating update on LGBTIQ rights issues from an international perspective, organized around a summary of the good news, the bad news and breaking news.
The good news concerns the greater acceptance of LGBTIQ rights and the important legislative improvements that have occurred in many countries in recent years. He noted that in the last 16 years, a very short time relatively speaking, many countries have enacted laws for marriage equality.
Sadly in Australia, out of step with other advanced democracies around the world, we do not yet have marriage equality. Michael Kirby’s reaffirmed his well-known opposition to the plebiscite and listed many other important legislative changes that have not required a plebiscite. Neither should marriage equality. Michael considered that with the blocking of the plebiscite, marriage equality in Australia is certainly a few more years away.
In his summary of the bad news he drew particular attention to the disturbing fact that in many countries around the world, including many Commonwealth countries, violence against LGBTIQ people is endemic.
As breaking news news, Michael reported on a recent important Human Rights Council resolution establishing the appointment of an expert to investigate violence and discrimination based on sexual orientation and gender identity.
It was not an uncontested outcome. African nations in early November forced a vote on whether the appointment of the expert should be delayed. Thankfully that resolution was blocked. However, the vote in favour of the appointment of the expert was close. Several countries abstained or failed to vote. If they had voted, it is entirely possible the vote may have gone the other way.
This is a sobering situation, given that this issue is not about marriage equality or other rights, but violence against LGBTIQ people - a fundamental right that people should not fear violence just because of their sexual orientation.
The audience response to Michael's speech made it clear that they appreciated his informative summary of the state of LGBTIQ rights around the world.
Louise Marsden (one of Johns sisters) gave a vote of thanks to Michael Kirby. In passing she noted their Catholic father's injunction that she and her siblings should not only love well, but love whoever they choose.
The evening finished in a convivial atmosphere, sharing drinks and canapés with old and new friends. It was a fitting reminder of the trail blazing work of John Marsden.
We would like to express our sincere thanks to the Marsden family for supporting the evening.
In March this year, the NSW government passed legislation aimed at intimidating anti-coal seam gas protesters, joining a growing trend toward restricting environmental activism in Australia. This legislation, The Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016, follows similar legislation targeting Tasmanian anti-logging protesters and Western Australian environmentalists. The two primary purposes of the bill are to confer expanded powers on police and to severely enhance penalties for protesters.
Expansion of Police Powers
Under this legislation, police are empowered to give directions to protesters if they find the directions necessary to avert a serious safety risk. Because coal seam gas protests often occur on fracturing sites near heavy machinery, it will not be difficult for police to produce pretextual safety-related justifications in order to give directions to protesters, including directions to disperse. It is an offence to fail to heed these directions. The legislation also confers the power to stop, search, and detain without a warrant those protesters whom the police suspect are in possession of devices used to “lock on” or secure a person to fracturing equipment.
These changes give police wide discretion to control the activities of protesters, and even potentially to disperse or preemptively prevent protests based on police assessments of “safety risks,” which are left undefined by the law. They also allow police to search and detain people on the mere suspicion that they possess completely lawful and harmless items such as rope or glue. As the NSW Law Society warned in their submission opposing the bill, these expansions of police power are not offset with increased judicial oversight.
Anti-coal seam gas protesters should comply with police directions if they want to avoid legal consequences, but should also ask police to provide a safety-related justification for any directions, to check that police are operating within the contours of the law. Protesters should be aware that they may be searched or detained on suspicion of possessing securing devices and that these devices, if seized by the police, are forfeited to the government.
Measures to Deter Dissenters
This legislation also significantly increases the penalties associated with anti-coal seam gas protests. Prior to the bill’s passage, it was illegal to trespass on enclosed lands and such trespass was punishable with a maximum $550 fine. The bill increases this penalty by ten times for trespassers who “interfere with…[a] business.” The increased penalty also attaches to trespassers who merely intend to or attempt to interfere with business activities. This means that anti-coal seam gas protesters who are judged to intend to interfere with fracturing activities can be slapped with a $5,550 fine. For organizations which send many protesters to engage in collective action, the combined impact of these fees, assessed against each protester, could be massive.
Perhaps the most serious change enacted by this law is the redefinition of the crime of “interference with a mine” to include actions in which many anti-coal seam gas protesters regularly engage. This crime is punishable by up to seven years imprisonment, providing a serious deterrent against participating in anti-coal seam gas protests. The new definition of “mine” includes all extraction, exploration, construction and decommissioning sites for petroleum, gas and minerals. The crime encompasses intentionally or recklessly hindering the working of the equipment of a mine. The practical effect of this change for anti-coal seam gas protesters is that many of their most effective protest strategies – such as locking on to fracturing equipment or blockading to prevent the movement of such equipment – now constitute the serious crime of “interference with a mine.” These changes heighten the risks that anti-coal seam gas protesters must take to express their dissent, imposing heavy fines and jail time for even the slightest interference with the profit-generating activities of energy corporations.
These changes are an expression of the NSW government’s frustration with anti-coal seam gas protesters, who have been successful in deterring energy corporations’ extraction of coal seam gas through direct action campaigns. Although there have been some cases of minor injuries involved in such environmental protests, they have mostly been associated with police activity in the course of arresting protesters. The concurrent introduction of legislation reducing fines for energy corporations which engage in unlicensed exploration demonstrates that business interests are at least as salient for the NSW government as the “safety” interests which purport to justify these laws. Because the activities which are given heightened penalties in this bill were already prohibited before this law was passed, it is clear that the government intends to send a chilling message to anti-coal seam gas protesters.
Abortion (administering or having) has been a criminal offence in NSW since colonization. However, since 1971 NSW case law has established that abortion is lawful in exceptional contexts where it can be established that it is necessary to preserve a woman from serious danger to her life or mental or physical health and it is not out of proportion to the danger to be averted.
Having to rely on this limited defense is a deeply flawed and unsatisfactory legal position for both women and medical practitioners. The right to lawful abortion remains uncertain and limited in NSW, which generates reluctance among many practitioners to perform abortions, with serious consequences for many women.
The decriminalization of abortion has long been CCL policy.
There has been recent reform of abortion laws in the ACT (2002) Victoria (2008) and – more limitedly in Tasmania (2013). In these jurisdictions abortion has been decriminalized and is treated as primarily a health issue.
Many activists in NSW who support abortion law reform have been reluctant to campaign around the issue in recent times. This is because of the ever-present possibility that a very conservative NSW Parliament – especially Legislative Council – might react with stronger anti- abortion legislation removing the current lawful defences and thus make the situation far worse for women.
The NSW Greens have decided to challenge this analysis and are attempting to revive a strong campaign for the decriminalization of abortion in NSW.
Accordingly Dr Mehreen Faruqi (Greens MLC) has drafted an abortion law reform bill which abolishes all criminal offences relating to abortion in NS W, as well as introducing some other protections including the establishment of exclusion zones around abortion centres and requiring medical practitioners who conscientiously object to abortion to refer a woman to another practitioner who does not have such an objection.
NSWCCL has met with Dr Faruqui and discussed her strategy and made some technical suggestions for changes to the draft bill. We have agreed to support the campaign – although we are very aware of the hostile attitudes of some members of the NSW Parliament and think it likely that the campaign will be a long one.
The Greens are holding consultations about the bill. They will be holding a public meeting in the Glebe Town Hall on Monday 6th June at 6pm. We urge interested members and supporters to attend.
Dr Lesley Lynch