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
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:
- The existing legislation should be repealed and a targeted data surveillance scheme instituted instead.
- The period for which information is stored should be reduced from 2 years to 6 months
- Civil proceedings should continue to be excluded.
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
The Australian Parliament is currently debating a Bill to reform the Senate electoral processes. It is very dismal listening: much abuse, much nonsense, and very little intelligent analysis. And all happening in a last minute dash.
Not Parliament at its best.
NSWCCL supports immediate reform of the distorted and undemocratic Senate electoral processes. We have urged this since the 2013 elections so dramatically illustrated the undemocratic processes and outcomes of this broken system. We have made a submission to the Joint Committee on Electoral Matters supporting a Bill which, if amended on one key matter, will deliver that reform.
This Bill is supported by the Government, the Greens and Senator Xenophon. The ALP and the other cross benchers vehemently oppose it. Perceived electoral self-interest appears to be the common driver- with the possible exception of the Greens.
This is such a shame. Two years ago there was constructive consensus from all major players and Xenophon on the need for immediate action and for a comprehensive reform package recommended by a unanimous parliamentary committee report. This report was scathing in its criticism of the 2013 Senate election process and urged Parliament to act quickly so that Australian electors should not have to go to another election under the current system.
Sadly both the Government and the Opposition failed to act then.
The current Bill provides a second, albeit belated, opportunity to enact these crucial reforms. It must be amended to fully implement the Committee’s 2014 recommendations to allow partial optional preferential voting below the line. This is an imperative if we are not to have an inconsistent and flawed new system.
NSWCCL understands the self-interest electoral pressures on parties especially in the context of a mooted double dissolution in an extremely overheated political environment. However, on an issue as fundamental as the right of electors to be able to choose who they vote for, to control the allocation of their preferences and to not vote for candidates they don’t support , we have a right to expect our political parties and parliamentarians to put democracy first.
The report by the Independent National Security Legislation Monitor –Roger Gyles QC - on the controversial section 35P provisions of the ASIO Act was tabled in the Senate on 2nd February. These provisions created draconian offences with penalties of 5 and 10 years imprisonment for disclosure by any person of any information relating to ASIO ‘Special Intelligence Operations’ (SIO) at any time.
NSWCCL, along with the other councils for civil liberties, strongly opposed both the SIO regime and these provisions for their chilling effect on the media and on reasonable scrutiny of ASIO. The controversy around these offences forced the Prime Minister to ask the INSLM to review their impact on journalists.
The report is thorough and suggests the INSLM gave proper and serious consideration to the informed criticisms of the SIO regime and the obnoxious disclosure offences. His findings on the offences are consistent with our views. His recommendations remedy some of the worst aspects of the offences – but sadly fall short of repealing them.
The Government has said it will implement the INSLM’s recommendations in full.Read more
The highly controversial Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 was introduced into Parliament in June 2015. It will come back to the Australian Parliament later today in a significantly amended form following the Government’s acceptance of recommendations from the Parliamentary Joint Intelligence and Security committee (PJCIS). It is likely to be dealt with quickly and passed this week.
NSWCCL recognises that the amended Bill will be a significantly improved and far less dangerous version. We welcome these changes, but remain disturbed by, and opposed to, expanding citizenship-stripping laws. Australian citizens who are alleged to have engaged in terrorist related activities should be charged, taken to trial and, if found guilty, punished and imprisoned in Australia. To expel them from the polis is to place the person outside the reach of the State’s legal system. It will not make us safer.Read more
The National Health and Medical Research Council has published draft ethical guidelines on the use of assisted reproduction technology in clinical practice and research.
Responding to an invitation to comment, the NSWCCL has made a submission that supports these draft guidelines, applauding the NHMRC for their support for the autonomy of all involved and their rights to detailed, accurate, contemporary and relevant information concerning the procedures, legal consequences and otherwise of their decisions.
Some questions for which further comment is requested of the NHMRC include, (1) Payment for the risks and labour involved in egg donation, (2) Sex selection on non-medical grounds, and (3) the potential establishment of an Australian egg bank.
NSWCCL recently made a submission to the NSW Sentencing Council’s Review of proposals relating to sentencing provisions for alcohol and drug fuelled violence. The review was initiated by proposals made from the Thomas Kelly Youth Foundation.
The Attorney General has asked the Sentencing Council to examine issues raised by the section 21A of the Crimes (Sentencing Procedure) Act 1999. NSWCCL's submission outlines a number of concerns relating to the proposed changes, including:
- There is no demonstrated need to introduce a mandatory aggravating factor where the offender was under the influence of drugs or alcohol. This should not be introduced since it would fetter the discretion of a sentencing judge, who can already take intoxication into account in sentencing, and the definition as proposed is unnecessarily broad.
- The concept of vulnerability should not be expanded as proposed with a new definition. This is unnecessary as CCL considers that vulnerabilities as defined in the proposal are already covered under the Act.
- In relation to any other sentencing measures that might be considered, CCL highlights that mandatory sentences for offences committed under the influence of alcohol already in place in the Northern Territory appear to have been unsuccessful in reducing their incidence.
Finally, NSWCCL urges the Government to provide a response to the recommendations made in the NSW Law Reform Commission 2013 Report on Sentencing given its relevance to the proposals in this review.