This submission was provided to the Senate Legal and Constitutional Affairs Committee on 26 March 2017. Due to comments in the submission, it was shared with the President of the Australian Human Rights Commission for a response and we were asked to refrain from publishing it. It was finally approved for publication by the Senate Committee on 6 April 2017.

Read our formal submission to the Senate Legal and Constitutional Affairs Committee on the Human Rights Legislation Amendment Bill here. The text of our submission is below for ease of access:

Human Rights Legislation Amendment Bill 2017 

Please accept this correspondence as a submission to the Senate Legal and Constitutional Affairs Legislation Committee for its inquiry into the Human Rights Legislation Amendment Bill 2017 (the Bill).

The Young Liberal Movement is a federation of State and Territory Young Liberal Divisions that come together as Australia’s largest centre-right youth movement. We are the elected Federal Office bearers of the Movement.

Since its inception, the Movement has held a strong policy position on all freedoms, particularly freedom of speech. It is the long-held position of the Young Liberal Movement, as passed by its Federal Council and reaffirmed in January 2017, that section 18C of the Racial Discrimination Act 1975 (Cth) (the Act) is an anathema to freedom of speech and should be repealed. While we are disappointed that the Government did not choose to adopt Young Liberal policy, we believe this legislation makes sensible amendments that should be supported by the Senate to section 18C, its operation and the workings of the Australian Human Rights Commission (the Commission).

The issues

As evidenced in the QUT case[1], right now in Australia, young Australians can be dragged through court, have their reputations smeared, incur upwards of $30,000 in legal fees in relation to a Facebook post - just to be found innocent. We believe this is wrong and unjust. Yet under section 18C and the poor administration by the Commission, this is exactly what can and has happened.

Our submission (attached) to the Joint Standing Committee on Human Rights’ inquiry into Freedom of Speech in Australia examined the QUT case in detail and we would draw the Committee’s attention to that submission.

We are also deeply perturbed by the conduct of the inquiry into the late Bill Leak, a cartoonist at The Australian where the Race Discrimination Commissioner actively solicited 18C complaints to be made to the Commission[2]. While the complaint that was lodged was eventually dropped, significant legal fees were incurred and great stress was placed on Mr Leak for no good reason. Again, we believe this oppression of a free press is wrong. Despite there being clear exemptions in section 18D, the Commission still encouraged complaints and dragged Mr Leak through the process. We are somewhat perplexed by statements from the President of the Commission, Professor Triggs, that the complaint wasn’t dismissed because Mr Leak’s lawyer didn’t make it clear that Mr Leak was a member of the press and that the cartoon was drawn in good faith:

Had he responded by making a good faith point, we would almost certainly have ended the matter precisely at that moment.[3]

Given that the cartoon appeared in a newspaper and a simple Google search reveals that Mr Leak was the editorial cartoonist for The Australian – a fact clearly known by the Commission when the Race Discrimination Commissioner solicited the complaints. This bizarre claim demonstrates the ‘work to rule’ mentality that the Commission has adopted.

More broadly, data published by The Guardian[4] from the Commission reveals that the vast bulk of 18C complaints are conciliated, withdrawn or discontinued, meaning that many of these complaints could have been settled and large amounts of ‘go-away’ money may have changed hands, as was the case with one of the four QUT students. In that case, while three students have now been found innocent whereas one student was coaxed into the paying a sum. We believe that the full extent of the problems with 18C is unknown because of the potential for similar injustices being settled to avoid large legal bills.

The Bill

The legislation currently before the Committee includes a number of key measures:

  • Removing "offend", "insult" and "humiliate" from section 18C, replacing those words with "harass";
  • Inserts a new reasonable person test to determine whether any alleged breach of 18C reaches a certain standard;
  • Require the Commission to observe the rules of natural justice;
  • Raise the threshold required for the Commission to accept a complaint;
  • Provide additional powers to the Commission to dismiss unmeritorious complaints;
  • Limit access to judicial review of unsuccessful complaints; and
  • Provide disincentives against making unmeritorious appeals to the court by allowing costs to be awarded.

The Bill faithfully implements the majority of the recommendations from the Joint Standing Committee on Human Rights’ inquiry into Freedom of Speech in Australia in relation to the operation of the Commission and the way that complaints are handled which is welcome.

We are particularly pleased that this Bill would require the Commission to observe the rules of natural justice, which will overcome the significant issue in the QUT case whereby students weren’t told for some time that there was a complaint against them. Further, while we contend that the Commission has always had the power to dismiss vexatious complaints, we are pleased that there are amendments to ensure that the Commission can no longer hide behind the lack of specific wording as an excuse for poor management.

While that Committee did not reach a conclusion on amendments to section 18C, we are pleased that the Government has decided to progress amendments to remove the subjective terms of “offend”, “insult” and “humiliate” and replace them with the word “harass”. These amendments will assist in drawing back the professional victimhood industry and remove the government from regulating hurt feelings.  This is a positive step.

We note that the President of the Commission, Professor Gillian Triggs, has previously said[5]:

There’s always ambiguity about what you mean by offending and insulting.

And when asked if she thought the clause could be made stronger by replacing “offend” and “insult” with “vilify”, Professor Triggs said:

I would see that as a strengthening, it could be a very useful thing to do.

While the Government has opted not to insert the term “vilify”, we believe the term “harass” will similarly strengthen the Act in line with Professor Triggs’ reasoning. It is somewhat disappointing that Professor Triggs has since altered her position on this matter. We are somewhat baffled by the Commission’s submission to this Committee where Professor Triggs appears to have completely reversed her position on “offend” and “insult” – we can only conclude that someone who would provide misleading evidence to your Committee[6], as Professor Triggs has, may again be delivering different lines to different audiences. Given Professor Triggs’ track record in providing evidence, we respectfully submit that Professor Triggs may not be a credible witness despite her exorbitant taxpayer funded salary.

Conclusion

While as a Movement we support further reform, we believe that this Bill strikes a sensible balance in ensuring free speech while protecting Australians from racially motivated harassment and humiliation. We are particularly pleased that the Bill seeks to address some of the very serious issues identified in the operation of the Commission but have reservations about whether those changes can be positively implemented under the current President and Race Discrimination Commissioner.

Nonetheless, we strongly support this Bill and urge the Senate to pass it.

We trust this submission will assist the Committee and the Senate in their deliberations.

Yours sincerely

Aiden Depiazzi, Federal President
Josh Manuatu, Federal Vice President & Policy Chairman

26 March 2017

 



[1] Prior v Queensland University of Technology & Ors (No. 2) [2016] FCCA 2853 [30]

[3] Professor Gillian Triggs, Senate Estimates, 28 February 2017