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Parliamentary Joint Committee on Human Rights
30/01/2017
Freedom of speech in Australia

BANKS, Ms Robin, Anti-Discrimination Commissioner, Equal Opportunity Tasmania

WAGNER, Ms Leica, Senior Policy and Projects Officer, Equal Opportunity Tasmania

Committee met at 09:00

CHAIR ( Mr Goodenough ): Good morning, ladies and gentlemen. I declare open this public hearing of the Parliamentary Joint Committee on Human Rights. The committee is hearing evidence today on its inquiry into freedom of speech in Australia, and I welcome all here today. This is a public hearing, and a Hansard transcript of the proceedings is being made. The hearing is also being broadcast via the Parliament of Australia website.

Before the committee starts taking evidence, I advise all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. The committee prefers all evidence to be given in public, but under the Senate's resolutions witnesses have the right to request to be heard in private session. If a witness objects to answering a question, the witness should state the grounds upon which the objection is taken, and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request the answer to be given in camera. Such a request may of course be made at any other time. I would ask witnesses to remain behind for a few minutes at the conclusion of their evidence in case the secretariat staff need to clarify any terms or references. I remind people in the hearing room to ensure that their mobile phones are either turned off or switched to silent.

The ABC has requested that they be allowed to record the committee proceedings. There being no objections, permission is granted, as so moved by Mr Perrett.

I welcome Ms Robin Banks and Ms Leica Wagner from Equal Opportunity Tasmania. Commissioner, I invite you to make a brief opening statement, and then the committee might proceed to ask some questions.

Ms Banks : Thank you. As you will have observed from the written submission, I am of the view that the current provisions, 18C and its following provisions, do appropriately find the balance between freedom of speech as recognised in international law and other international law rights, including the right to equality and the right to be free from discrimination. It reflects provisions in other acts, but probably most particularly in the Tasmanian act, under section 17(1) and section 19, both of which deal with race as a basis for unlawful conduct. Those provisions have been subject to quite extensive discussion and certainly review by my office, and it is my view that, like 18C, the balance is appropriately struck at the moment.

It is important I think in considering this to recognise the power of speech. As politicians, I think you will all understand that speech is a very powerful tool and it can be a tool used for good, but it also can be a tool used in ways that cause quite significant and lasting harm to people who are subjected to racist speech and other forms of prejudice based speech. It is an impact that particularly affects some people. If somebody says something offensive to me, I do not have a history of being targeted because of my characteristics, although if it were gender based I might have a different view. But, if I come from a racial minority and I have been subjected all my lifetime or all the time I have been in Australia to conduct and behaviour that treats me as less than equal, that says I am not as worthy of our welcome and our society's benefits as other people, every piece of that speech, when it is directed at me, builds on the harm that already exists.

We hear from young people in our community here in Tasmania who have come as humanitarian entrants or as children of migrants and experience racist speech and behaviour. One young woman who would strike me as very powerful said, 'People can say wonderful things and be incredibly welcoming to me most of the time, but a single racist word or action strikes like a spear.' So it undoes all the good that those of us who welcome people of difference into our community do, and that can make people feel not only that they are not welcomed by that person, but if those around do not challenge that speech, that is acceptable speech and they are not welcome as a whole in our community and they end up being silenced, which is an anathema to freedom of speech. It causes people to feel that they have to hide from society, shut themselves down, withdraw from active engagement and not speak out because of fear of being further attacked for being different. I think we need to understand that, for people who look different and are seen as different in our community, this is not a one-off. One incident is not a one-off experience; it is an experience that builds on sometimes years of oppression or prejudice and in some cases it builds on generations of that oppression. We need to understand that harm if we are going to seriously understand why we have this law. We have it because our parliaments have quite rightly recognised that as a public harm, a public ill that needs to be challenged when it happens.

One of the things that is also important to understand about discrimination more generally, and this provision as well, is that as with all laws—and it does not differ from many other laws in this way—it is a law that asks us to think before we act, to understand that there might be some constraints on our behaviour. Just as there are in criminal law, there are constraints in civil law as well. It asks us to think before we act, and that is the symbol or one of the great signs of a civilised society: we ask people not to simply act out of gut instinct or out of their lizard brain but to actually think: 'If I do this, will it cause harm? What effect will it have on other people?'

The criminal law is policed. It is something that is policed by our police forces very effectively in many parts of Australia. Most people are afraid to do things they know are criminal because they are worried about the criminal consequences. This law is very different. In some ways it is weaker because it is not of that nature. It asks that the individual affected by the conduct bring the action. Often we are talking about some of the most disadvantaged people in our society being required to challenge the mainstream, being required to challenge much more powerful players in our society. To do that the law quite rightly provides for a confidential process. It provides, as it does under my act, a process whereby the complaint is made to the Australian Human Rights Commission, the commission considers it to determine whether it fits within the scope of the law and then, if it does, provides the respondent with an opportunity to respond, all in confidence. Sometimes parties choose to go to the media, as they have in relation to a case I am sure you will want to ask me about, but that is their choice and when they do that hopefully they do it knowing the potential risks of using the media as a tool in this kind of proceeding.

As to what 18C does, and human rights law and discrimination law generally, it provides for a process whereby the parties are brought together to listen to each other, to hear each other's perspectives and hopefully understand each other's perspectives better than if they ended up straight in a court process. Courts are not a good way to ask people to listen to a different person's perspective. It does not really engage people in a listening exercise. It engages people in a winning exercise or a fighting exercise, much more so than the conciliation process that we use.

It does give people an opportunity to listen and understand the impact of what they have done or, for the complainant, to understand why the person acted in the way they are alleged to have acted, and that there may have been no malice or anything else involved, and to find solutions. We see that, in the vast majority of our cases, parties listen, they hear and they find a solution. Often, it is as simple as an acknowledgement that there was no harm intended and an acknowledgement to try and do better in the future. That is probably the most common outcome we see. It really is very important to understand that this process allows people to find resolutions in a very civilised way without having to have recourse to the courts, where it becomes a public process and much more likely to get very adversarial in its nature.

All of those are elements that are important to understand the context of section 18C and equivalent laws and to understand the basis on which, I think, we have found the right balance in protecting freedom of speech and equality and non-discrimination rights.

Mr PERRETT: Your data shows that there has been a significant increase in complaints received about offensive, insulting and intimidating, humiliating or ridiculing conduct. Given there is a substantial increase in complaints about incitement for a racist targeted attribute, can you comment about whether there is an increase in the scale of racism when it occurs?

Ms Banks : That is an interesting question. It is more overt than, perhaps, we have seen in the past. I would not necessarily say more violent but, apart from the complaints we receive, we also hear a lot of issues raised with us through inquiries and through our Report it! process, which is an informal non-complaint process, of quite public acts that indicate racist underpinnings—young students who are obviously of minority race being the subject of egg throwing and abusive comments and people in the streets saying things to people like, 'Go back to where you come from,' which clearly has a racist base to it. And we have seen some indications of people being more likely to be incited than in the past.

We had a matter raised with my office but not formally—

Mr Perrett interjecting

Ms Banks : Yes. It comes and goes. I have brought annual reports because it does come and go. Some years we get more and some years we get less. What we have seen is people feeling that they have been targeted because of their race and targeted in a way that most of us would consider entirely unacceptable. We would not do it. I guess that is an interesting thing. These people have felt sufficiently supported and sufficiently trusting of the process that they can come into it to find a resolution. I think only one of those complaints, and it may not have been from that year, proceeded to the tribunal. All of the others resolved or withdrew.

Mr BROADBENT: Do you think that your laws, here, have a higher threshold for action than 18C?

Ms Banks : No, but the way the threshold operates is different. This is because we have in our act—in some ways you could say we have a lower threshold—a complainant has a right to seek review by the tribunal. If I reject a complaint at that initial stage there is a right of review. That does not exist, I think, in any other state or territory; certainly, it does not exist in federal legislation. The only thing a complainant can do in that circumstance, federally, is seek judicial review, which requires a court process. My position, if I reject, is subject to a tribunal review. If I accept the complaint, it is subject to judicial review. So we have the judicial review available for respondents, but complainants have a right of review, which probably means, and the tribunal has pretty regularly said: the threshold is low; do not lightly reject a complaint if there is any possibility; if there is a prima facie case that this could breach the act, then you have to accept it. So it is pretty clear that we have a low threshold, and I suspect, in some ways, that sets it slightly lower than 18C, but I have not operated enough under 18C to say that categorically.

Mr BROADBENT: If you say, as you have said a number of times today, that you seem to have struck the right balance here in Tasmania, why then should there be a need for any federal law to be in place for you to act in the best interests of your constituency?

Ms Banks : Because if a person involved in the Commonwealth were to engage in such conduct I cannot deal with it; it is out of my jurisdiction. My act does not cover everything that happens in Tasmania; it covers everything but actions of the Commonwealth. And that can be a staff member of part of the Public Service that exists—a Commonwealth public sector employee in Tasmania. I guess that the most important thing is state and territory laws do not cover Commonwealth entities. If the Commonwealth were to engage, either as an entity or through one of its employees, in conduct that potentially breached the act, I cannot deal with it; I have to reject that on the basis that it is out of my jurisdiction.

Ms MADELEINE KING: Thank you very much for coming in and for your very extensive submission. A number of the submissions we have had to this inquiry—and obviously there are thousands of them—spoke about a chilling effect. There are two sides to this effect. One is from the perspective of those seeking to change the wording of the Racial Discrimination Act, the implication being that the processes mean people are not speaking their mind. From the other perspective, it is perhaps a chilling effect on those groups that have been affected and, as you mentioned, those that have had a history of targeting. Could you, given your remit and the work you do, speak about that kind of potential for silencing those groups that have been subject to it?

Ms Banks : Thank you for that question. I have heard the chilling-effect argument and I think it is important to try to unpack that because I do not see significant evidence that 18C has stopped people saying things publicly that are quite overtly racist. I do not think it has. It may have meant that many of us think before we speak. I think that is what we have laws for: to ask us to consider the impact of our conduct on others and to think about what the law asks of us. But certainly we can engage in public discourse about matters relating to race, immigration and other things without falling foul of 18C or its equivalents in states and territories. I think there is a difference between the public perception of the law—and this is sometimes heightened by people building it up, feeding the fire—and what the law actually does. That says to me that what we need perhaps is to do more education about what the proper balance is and when speech is entirely okay and when it may, in fact, fall foul of the law. So I think there is an educational role for all of us to play.

In terms of the effect that it has on minority members of our community, we hear from people all the time that when they are targeted and when they feel subjected to discrimination, even when they know they have rights under law to pursue an action, most people do not do so, because they are afraid. They are afraid to put their head up and say, 'This is not okay.' But they are also afraid to publicly challenge that speech, because they are an easy target; they become an easy target for others. I am sure you have all seen that possibility playing out in your electorates and among your constituents—people may be more likely to come to you and say that this happened than to actually speak publicly about it. In fact, they may not even feel they can do that if they think that their challenging of speech is going to be seen as somehow oppression of the speaker. So we certainly hear people say, 'Look, it's easier just to put my head down, to find a way through this, to hide my identity to the greatest extent possible to fit in, to assimilate.'

As a country that is made up of very diverse groups, here assimilation works to a certain extent, but that diversity is what makes us a country that is as rich and interesting as it is. So, we do not really want people to turn into clones of each other; we want people to have that diversity. And if we say to people, 'Well, you're fine unless and until you assert your rights,' then we are not a free country.

Senator PATERSON: I am interested in asking about the Porteous case, particularly whether you think it was an example of the law and the dispute resolution process working well. The reason I ask that question is that both Martine Delaney and Julian Porteous have said that it was not a very satisfactory outcome for them. So, I am just interested in your point of view as to whether you thought it was a successful process.

Ms Banks : A very good question—thank you. It was certainly the process that we use. I suspect I would not say that it was the best it could have been, partly because both parties went to the media, and I think that does interfere with the capacity of the process to work well. Everybody had more skin in the game in the public domain than they would normally have. Generally when it is done through a confidential process everybody can walk away and leave it behind. Once you have put it out into the public domain there are a lot of people who start thinking that they have something to win or lose from the party's role.

So, I do think it was not the best process. At a level I think it would be really good if we had had a decision on the application of section 55, because until we do it will continue to be a contended issue. And it will continue to be after that as well, I am sure, but it will give us more clarity than we have at the moment. And I think the important thing to understand about that case—people have said I prosecuted, but I do not prosecute; it is not my role to prosecute—all I did in accepting the complaint for our process was to say, on the face of it, it discloses a possibility; there is a possible defence available and I named that up very clearly to the parties. But I am not empowered to determine that defence, because it requires findings of fact that I am not empowered to make, so that is a matter for the tribunal.

That said, I offered them the opportunity to have a conciliation, and there were certainly some very encouraging and fulsome discussions about the words that were of concern to Ms Delaney, why she had those concerns and why the church had expressed things in the way it had. So, I think it did give people an opportunity to perhaps hear each other's perspectives in ways that they would not have otherwise. It creates a space for people to come together. And without that it is quite possible that Ms Delaney and others who were concerned about that booklet would not have an opportunity to have that kind of discussion with the head of the Catholic church here in Tasmania or with the Australian Catholic Bishops Conference. So, it does create a space for a conversation that is much safer than just using the media. As I said, the use of the media in that case I think added to the sense that it was not as good as it could have been.

Senator PATERSON: I have just a quick follow-up question. You point out obviously that it is unsatisfying in a way because there was not a resolution either way. This comes I guess to Madeleine's point about the chilling effect: if you are a participant in this debate it is now not clear what is in and what is outside the bounds of the law. So, is there a risk that there are other people who observed that case and particularly what happened to Archbishop Porteous and will think, 'Well, I'm not going to be so forthright in my opinion on my issue, because I don't know what will happen to me and I don't know what is protected and what is unprotected'?

Ms Banks : It could do if people have a misunderstanding of what happened to Archbishop Porteous, because nothing happened to Archbishop Porteous—

Senator PATERSON: With respect—

Ms Banks : other than responding to a complaint. The allegation was made. It is not like being taken to the Supreme Court for a defamation action, where it is a very public process. The only reason people are concerned about this in terms of its chilling effect is that the parties went public. Now, had the parties not gone public, nobody would have known that there was a complaint about that booklet, so there would have been no chilling effect—if there was one, and I am still not persuaded that there was one, because the Catholic church has maintained that booklet; it has not withdrawn it and said, 'We're too afraid to speak these words.' It continues to speak those words. It is its prerogative to choose to run the risk of a further complaint, I guess, and that is a risk I think it runs.

But the chilling effect comes not from the actual complaint or its process; it comes from the misrepresentation of the complaint and its process and the response in the public domain. I cannot control that and nor can the parties. I think we are all under an obligation to try and clarify that so people do not feel that they cannot speak their views in respectful ways in a public debate. There is a difference between saying, 'You can't say anything,' which is not what this is about, and saying, 'You need to think about the impact of your words, you need to clearly own them and you need to ensure that you don't speak in ways that are understood by a reasonable person to cause harm.' That is the key test, really.

Senator PATERSON: I do understand that, but I am a bit surprised to hear you say that nothing happened to Archbishop Porteous. He had to devote hundreds of hours to this case and to defending himself. He engaged lawyers and had to prepare a defence. He engaged in extensive correspondence throughout this issue. Many people believe that, as in the QUT case, the process is the punishment. It is so discouraging. Imagine an ordinary person who does not have the resources of the Catholic Church witnessing that and thinking, 'I couldn't afford to hire a lawyer to defend me in this process.'

Ms Banks : First of all, I would disagree with that analysis of what Archbishop Porteous had to go through. He was asked to provide a response. Ms Delaney was not legally represented, so the archbishop did not necessarily need to get lawyers involved at that early stage of the complaint. He chose to. That is a choice he made, and we see that with respondents very commonly. They get lawyers engaged very early, at great cost—and it is a tax deductible expense for them. It is not for a complainant, and I think it is really important to understand the imbalance of power that we see in this process. Some 95 per cent of our respondents are legally represented; about six per cent of our complainants are. So we have to find a way to deal with that imbalance.

'Hundreds of hours' is a vast overstatement, I would suspect. The complaint was not long. The notification was not a long document. I think in total it would have been less than 30 pages. There is a complaint form which would be most of that. We seek to clarify in our notification why the complaint is with us and what the potential defences are. We give a lot of explanation about how the law operates so people do not have to come into this ill informed or uninformed. We do not just say, 'Here's the complaint—respond to it.' We say: 'Here's the complaint. Here is why it is being dealt with under the act. You have an opportunity to respond.'

You do not have to make a defence at that stage. It is not a full court process. That is the beauty of this process. It asks people to keep it low key and relatively informal at that early stage, because those documents are all confidential and it does not prejudice a case later on if you do not put on a full defence at that early stage.

I have heard that said before—'reams of paper', 'hundreds of hours', 'had to engage lawyers'. I contest all of that. The idea of this law, and the federal equivalent of this law, is that you do not have to do that because the commission federally and I and my office at the state level are there to try and help the parties find a solution without all of that. In fact, lawyers for respondents will often say, 'We want to put on a fairly limited response at this stage because we want to see if we can resolve it.' That is a really positive thing for a party to do and for lawyers to do, because they understand: 'Let's not make this worse by inflaming things with a very aggressive defence. Let's not spend hundreds of hours or thousands of dollars on legal fees at this early stage.'

In fact, that is not what happened in this case. In this case, it was not a massive defence that was put on. It was a very limited short response. In fact, it was a very clear indication that the parties wanted to try and find a solution. So I contest that it was a very big impost on the respondent. We try very hard to make sure it is not.

Senator PATERSON: We are very pressed for time, but I think it is illustrative that 95 per cent of respondents feel the need to engage lawyers. I think that says something about the system.

Ms Banks : I will respond: 95 per cent of respondents can do so as a business expense.

Senator PATERSON: If they are a business, not if they are an individual.

Ms Banks : The vast majority of people who we deal with as respondents are businesses.

Senator PATERSON: That is not very comforting to the QUT students.

Ms Banks : No, it is not very comforting to the QUT students, but they could have participated without lawyers as well. You do not have to have a lawyer. That is the point.

Senator PATERSON: Well, not when it got to court.

Ms Banks : Once you get to court, I agree that it is a different matter. But the fact that people have a perception that they might need a lawyer—we work really hard to overcome that perception, and I think so does the federal commission. I do not think this is something we encourage, because we do not want an adversarial process to take over at an early stage. This is one of the few areas of law in Australia where we are encouraging people straight into a dispute resolution process where it is informal. It is almost the only area of law I can think of where there is a threshold for bringing a claim. I can sue somebody in defamation by simply filing in the Supreme Court. I can commence proceedings in industrial law simply by filing papers in the industrial commission. I can sue somebody for the tort of negligence by filing in the court. I do not need to go through a process where somebody with specialist expertise goes, 'We'll look at this and determine whether or not you can even get past first base.' So we do that. And, once you pass first base, you are forced into a process—and I say 'forced' because I think we do push pretty hard—that asks you to see if you cannot find a solution. For most areas of law in Australia that happens after filing in the court, where the registrar engages in dispute resolution. It is already in the public domain at that stage. So this is an almost unique area of law, in that we are trying to do things differently, in a way that does not force parties into highly litigious actions. And, yes, there is still misunderstanding about that, 30 years on—I think because people are much more used to criminal law, where there is prosecution, or other areas of civil law, where you just go straight to court.

CHAIR: In the interests of time, I might move to Senator McKim.

Senator McKIM: Ms Banks, proponents of change of 18C have sought to couch this in terms of a freedom-of-speech or freedom-of-expression issue. You have gone to it to a degree in your submission, but can I just ask you to respond to that, particularly in the broad context of whether freedom of speech or freedom of expression is an absolute right or a fettered right and how that sits within a range of other rights that we have in this country.

Ms Banks : If we are talking about rights and freedoms, I tend to talk about them in the context of the international law, because in Australia we have very limited express rights and freedoms. We have what we have under the Constitution, which is extremely limited, and we have what we have through state, territory and federal laws like discrimination law and privacy laws, for example. So I would tend to turn to the international law framework, because that is a fairly accepted framework across the world, and the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights, which is where we find freedom of speech and expression.

Yes, it is clear in the International Covenant on Civil and Political Rights that you are free to believe whatever you want—there are no limits on your belief and there cannot be. Once you start expressing those beliefs, however, the international law—quite properly I think—says, 'We need to make sure that the way you express your freedoms, your thoughts, your beliefs, does not infringe other rights that are set out in this convention and in international law.' And there are two other relevant rights in this context. One is the right to equality and the other is the right to be free from discrimination. So, as with freedom of speech, we have freedom from discrimination. They are both freedoms in one sense, and it is interesting because people talk about, 'It is about rights versus freedoms.' Well, it is not. Freedom from discrimination is the right that is protected in international law.

So it is clear that freedom of speech is not absolute, and in fact in international law it expressly says you cannot defame people, you cannot speak in ways that cause a person's reputation to be harmed. So international law recognises defamation as an infringement of another right. It also says you cannot infringe other rights in the exercise of your free speech. So it is not absolute, and in Australia, where we have not adopted those rights in a charter or a bill of rights in any form, despite numerous attempts by people to proceed down that track, the rights we have are the rights we have in law, and those rights include defamation law protections, privacy law protections, discrimination law protections and the very limited protection of freedom of expression that we see implied in the Constitution, which is not an absolute 'You can say whatever you like about whoever you like'; it is: 'You are free to speak on political and governmental matters within limits.' Even that is limited because of the proportionality test that is applied in international law and under our Constitution. So the Commonwealth could not pass a law that stopped people speaking about political matters; it would be unconstitutional.

But, if it did so—and here is a great example: sedition is covered in our law. Sedition is a form of political speech, but our laws prevent sedition at least since 2005 and probably earlier than that. In 2005 the national security laws added quite strong protections or prosecutorial powers in relation to sedition. That is political speech, but the parliament obviously felt that it was an appropriate balancing and it was necessary for the good governance of this country and met the proportionality test. So there are always behind the absolute freedoms a whole lot of nuance that needs to be considered in the context of what kind of society we are, what kind of society we want to be and what limits on freedoms and rights are necessary for government of this country to work effectively.

Senator McKIM: You have called in your submission for the criminalisation of racial vilification. Can you go to your reasons for forming that view? Specifically, do you think that criminalising racial vilification would allow, for example, police to intervene earlier in situations on the ground that are happening in real time to potentially prevent vilification from escalating and potentially leading to violence?

Ms Banks : In terms of why criminalise, to me it seem to be an appropriate extension of existing criminal provisions that deal with offensive conduct. Under federal criminal law, you are not allowed to use the postal service or the telecommunication service to engage in conduct that a reasonable person would anticipate would cause offence and various other things. Mr Monis challenged that provision in the Supreme Court of New South Wales on the basis it infringed his freedom of speech. The Supreme Court of New South Wales held that, no, it did not. It went to the High Court. The High Court was split evenly on that decision, so it reverts to the Supreme Court of New South Wales decision, which is to say, no, the provision in the federal Crimes Act is appropriately balanced.

To me it would be a useful adjunct to that to recognise that certain forms of conduct and speech have additional harm potential because of the history of groups being targeted for prejudice. Unless you put that into those provisions, it is easy to say: 'Well, I don't feel offended by that. I a judge, a highly privileged person, law degree, all those other things—I don't feel offended by that; therefore, it can't be offensive.' If you ask the court to turn its mind to what effect this would have on a person who has been marginalised and disadvantaged all their life, I think you are asking them to do a little bit more work, and I think it is appropriate work to do.

It is interesting to think about whether you separately criminalise it. I think it is a bit of work that needs to be done to look at how to do it best. In the case of Mr Monis, he used the postal service to send extremely appalling, as I understand it, letters to families of Defence personnel who had served in Afghanistan and who had been killed—it was killed, wasn't it?—in Afghanistan. Any reasonable person would understand that that is offensive, that that is very harmful for those families. It is about saying we need to give people some more guidance. When you do not come from a minority group, you may not understand it. I think we all understand targeting somebody whose family member has died in that way, because we all could have a family member who died in that way. It is easy for us to understand that harm but not so easy to understand a harm that we may never have experienced. So I think it is about giving further guidance on the existing provisions that do criminalise conduct in speech, because there are a number of provisions in the Tasmanian Criminal Code that give police the power to charge a person with conduct that is offensive.

I cannot do that. I simply can deal with a complaint, and the complaint has to raise a protected attribute. Under the Crimes Act or the Criminal Code, it is a much lower bar in some ways: it is just offensive to the person who hears it. So, if a police officer is offended by something that they hear or see, they can take action. As a statutory officer, I do not have that power.

Mr LEESER: I would like to return to the issue of the Porteous case, if I may, just to clarify what happened and then look at some of the processes of the commission. Could you just clarify the steps that the Porteous case went through and where it was actually terminated?

Ms Banks : I gave evidence last week to the Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill and I was asked to provide further detail of the complaint. I said that I will with the consent of the parties. I have sought that consent and I am waiting to hear back from them. I provided all of the parties with a proposed document to provide to that select committee. That goes into the detail more than the question you have asked, which I think is about process.

Mr LEESER: Through you, Mr Chairman, if it is possible, we might benefit from similar information.

Ms Banks : Yes. And I did indicate that I was giving evidence this week and that I thought that, if I got consent, it would be useful for that consent to cover this situation. I was very aware that this was likely to be a matter that you would be interested in. As to the process, the complaint was received and considered in terms of: does it disclose a possible breach of the act if the test under section 17(1) and under section 19 of the act applied? The answer to that was yes, but it is not a finding that there has been a breach of the act; it is a finding of a prima facie case, basically. At that point, once I make the decision, I am statutorily required to notify the parties, provide a copy of the complaint and a summary of the complaint, and my reasons for the decision. I did all of that. I provided the parties with my covering letter that says, 'These are the possible breaches disclosed. Attached is the complaint. Attached is a summary that sets out my reasons for the decision.'

In this case we offered the opportunity for a conciliation. Generally we would simply say we are going to hold a conciliation. In this case it was pretty important, I thought, to get a sense of whether the parties were in that space or it should go straight to the tribunal because it is a matter of public interest. I can make that decision if I need to, but I thought, 'No, I'm going to give the parties the opportunity.' They were all very open to that opportunity—there are, in fact three parties in this complaint—and we held two, if not three, conciliation meetings, and between those meetings was a significant ongoing exchange and negotiation in writing between the parties. There was a conciliation, it was adjourned for that process to be ongoing, there were lots of iterations of an outcome exchange between the parties considered, and we came back together for that conciliation. The second conciliation meeting was adjourned because the parties, again, wanted some further time to think about how far or where they were willing to compromise their positions. It was after that second meeting that I was notified by Ms Delaney that she wished to withdraw her complaint and I granted that withdrawal. It was not even before the end of the investigation. At the end of the investigation I would again look at the complaint and any information we collected from the parties or elsewhere to identify whether the complaint continued to disclose a possible breach, and I suspect that in this case it would have because I cannot determine the defence. The defence in section 55 of our act is definitely a matter for the tribunal and they have said that previously. Had it gone to that investigation decision, my likely decision at that point would have been to refer it to the tribunal so that the matter could be determined.

Mr LEESER: Just to clarify, there were conciliations, things went back and forth, but there was not resolution at a conciliation; the complaint was withdrawn before a final resolution at conciliation or going to the tribunal?

Ms Banks : That is correct.

Mr LEESER: I take you to your submission, at page 40. You have some dot points at the top of the page that go through the nature of what you do when a matter comes in. As I understand it, you not only look at whether there is a complaint made but whether an exception clearly applies. In the Porteous case or generally, as part of the documentation that you put forward, do you say, 'We think there is an exception that applies,' or do you say, 'We think there is not an exception that applies'?

Ms Banks : If there were an exception that clearly applied—there are not that many examples of exceptions that clearly apply—for example, the act says that a school established for a single sex does not have to enrol a student of the opposite sex. It is going to be pretty clear whether or not that applies. Or it can be if that conduct is reasonably necessary under another law. So, in the case of a newsagent or a tobacconist that refuses to sell cigarettes to a person under the age of 18, defence clearly applies. There is a law that says that you cannot do that. They are the really clear examples. There are not that many of them. If a defence possibly applies and turns on some clarification from a party or on determination of facts, clarification may be enough. In both cases we would say to the parties, 'This defence may apply.' And we will say whether or not it is a defence that I potentially can determine or it is a defence that has to go to the tribunal. In this case, it is a defence that would have had to have gone to the tribunal. I am not entitled to make that call, because of the number of elements of the test in section 55, and you would have to conduct a hearing to determine some of those elements, and I am not empowered to conduct a hearing.

Mr LEESER: So you did not flag in the Porteous case that an exception—

Ms Banks : I absolutely did flag that an exception might apply, but I said, 'It is an exception that has to be determined by the tribunal.' Absolutely I flagged it.

Mr LEESER: Thinking about the federal commission—obviously chapter 3 makes some of the issues more difficult than you have to deal with at the state commission—and thinking about the way you operate in the state commission, would it not be better for you to be able to offer at least an opinion or a view at the earliest stage? In some respects you are offering an opinion on half of the case but not the other half by saying that there is a prima facie case. I note what you said earlier about the tribunal—that, if there is a prima facie case, you have to let the thing run, but would it not be a better process in terms of moving things on more quickly? That is not using the Porteous example; that is just asking a general point here.

Ms Banks : At that first assessment stage, I think the answer is, unfortunately, no, because I do not have anything from the respondent. They do not even know the complaint exists until I notify. So that would be me presuming what they are going to tell me—presuming they are going to seek to rely on the defence, presuming they are going to tell me stuff that is relevant. That said, in the investigation decision—the decision that happens after I have heard from the parties—I will very clearly say, 'This is the defence; this is what we have heard about in response to that defence. It appears that there is at least a strong possibility that the defence will be made out,' but we did not get to that point in this case. So I will, absolutely, because I want the parties to go into any further conciliation process—because we can hold a conciliation after an investigation—with a very clear view of the strengths and weaknesses of their case. I do not want people to go in thinking, 'Oh, I'm on a winner here,' when, if they do not resolve it and end up in the tribunal, they are facing the costs, both human and financial, of a tribunal process that is very jarring on people's lives and that can take a long time. If they did not know that they had a big weakness in their case, then that would be me not doing my job well.

Mr LEESER: So you will, effectively, at the end of the first conference, offer—

Ms Banks : Not the first conference—at the end of the investigation stage.

Mr LEESER: Are there any time limits? Can you tell us about the time limits?

Ms Banks : The first time limit that applies is 42 days to assess the complaint. That is the first one, then there are 10 days to notify from assessment. It is terrible at Christmas; I do not like making decisions just before Christmas, because 10 days is pretty much gone. So it is 10 days to notify. From there it is six months maximum for the investigation to take place. We can make it shorter than that. If there is nothing further to investigate and the parties have not resolved, then I can make a decision earlier than six months, but I cannot go more than that unless the complainant consents, and I am very reluctant to ask complainants for consent, because I think that delay is unhelpful. The only time I would ask is if there have been difficulties for the parties engaging in the process because they are overseas or whatever else. Once the investigation decision is made, if I refer it to the tribunal I have 48 days to finalise the report that goes to the tribunal, and then it is gone. If I make any other decision at that stage there are no further time limits, but we certainly try and keep it timely because we know that the longer these things drag out the more fixed people get in their positions and the less likely they are to resolve. It does not help if it then goes to the tribunal because people's memories become less clear.

Mr LEESER: One of the criticisms of the federal commission processes is that the conciliation does not seem to be particularly aligned with what you can get from the court. It seems your processes or the outcomes that you might get from conciliation are more aligned with the court and the tribunal processes. Is that true and fair?

Ms Banks : I do not know if it is true or not. At the end of the day, what can happen at conciliation is whatever the parties are willing to agree to as long as it is lawful. The only time that I would have any say beyond that is if the complainant—and I think it is probably any party—is a child or a person who does not have legal capacity by reason of disability. In that case, any agreement that is reached has to be approved by me or if it happens at the tribunal stage by the tribunal. Parties can agree to anything. The fact that parties agree to things that are within the realms of what the tribunal will order is because people know what the tribunal will order; they tend to be pretty savvy about that. The one thing that you do not see tribunals ordering very often, but we see very regularly, is acknowledgements and apologies. As far as I am aware, there has only been one order of an apology made by our tribunal. I think that is unfortunate because apologies do, even when they are ordered, make a difference. My understanding is that it is the same in the federal commission: the parties can agree to whatever they are willing to agree to, so long as it is not unlawful. You cannot agree to do something that will break the law.

Senator CAROL BROWN: In your submission you talk about discrimination law that supports and enables public discussion which is rational, respectful and reasoned; in your responses here today you have talked about respectful languages. With the suggested changes, how would that change?

Ms Banks : If you take away the express protection in 18C, you are saying: 'You don't put us all under a burden to think before we speak.' We are all under that burden, and I think it is a reasonable burden in a civilised society. You would still be under a burden at a state level but not, as I said earlier, if you happen to be part of the Commonwealth. I think these changes send a message. There are two effects: there is the legal effect—people would not be able to complain anymore if they felt they had been subjected to speech that fell foul of 18C; but, more importantly perhaps, is the role that discrimination and all laws play in setting the expectations of our societal behaviour. In this case it would be saying: 'Well, we used to protect against this sort of behaviour but we've decided we don't need to anymore.' That sends a message that we think that everything is resolved and I think we all would know that would not be the way that message would be heard. The other way it would be heard is: we do not think you should be restricted in what you say and how you conduct yourself in relation to racial minorities. That is a very, very risky message for our parliament and for our society to be adopting at a time when there is a lot more tension around these issues than we have seen for some time. It is not unique in history, but it is certainly a time that we need to be cautious about sending messages that might be misread. I am not worried about reasonable people, because reasonable people think before they speak and act; I am worried about the people who are easily led into abuse, aggression and violence. We have them and we know we have them, and so we need to send the messages. A leader of a group might say something, thinking, 'I can say this because I know that people aren't going to act on this,' but people do.

Senator CAROL BROWN: What type of language could they use that they currently cannot?

Ms Banks : I think they could be expressly derogatory of particular racial groups. I hate saying some of this stuff, but they could suggest that people of particular racial minorities are more likely to be sex offenders, terrorists—which then, if that group is visibly identifiable or if somebody else looks like they might be one of that group, could result in people being targeted. We see that. We know that that happens. After the attacks on 11 September in New York and other parts of America, people of racial minorities who were not from Islamic backgrounds were targeted. Sikhs were targeted because they look different and because, 'Maybe it's enough.' I have colleagues in America who are of minority races who are not Islamic, who do not follow that faith, but who were targeted in the streets, who were subjected to abuse.

That is not a civilised society, when we allow that to happen without our government saying, 'No, we have some constraints on our behaviour.' That is why we have criminal law. That is why we have civil law. We do it to set a tone and an expectation and, occasionally, to allow for legal proceedings to go ahead. Mostly, the law serves as a backstop to what we think is a decent society.

Senator CAROL BROWN: With your experience, how do you think that sort of language would impact the people it is directed to?

Ms Banks : It causes enormous psychological harm to people, and that is lasting harm. Knowing what psychologists have written about this, it is a harm that is not like a broken arm. We recognise physical harm. If someone gets punched in the face we are very quick to recognise that harm and compensate for it. But the emotional harm that is caused lasts in just the same way as not so much the physical harm of that punch in the face but the fear it instils in the person that it might happen again. It is the same kind of thing. It instils in a person that this is never going to end: 'I am never going to be accepted. I am never going to be a full and equal citizen in this society. I am always going to be targeted and excluded from the full rights and freedoms that we in this country expect.' It makes people hide away. It shuts them down.

Senator CAROL BROWN: And we have the issue of a spill-over effect. If I were to say something that impacted negatively on a person, and that was in the public arena, it is how people in the community may think they are able to say those things.

Ms Banks : Yes. It is the enabling effect it has or the permissive effect it has on some people and the stifling effect it has. Even if you just target one person, if it feels like it is targeted because of their characteristic, other people in that community will feel it too. The other thing is, and we all live in these communities, even if it happens not in a very public space, the individual might not bring a complaint to me but they will talk to their friends about it. And those friends and colleagues and others will realise: 'Maybe I am not accepted fully in this community.' That is an enormous harm when we are trying to create a country in which people are trying to flourish and be their best. People cannot flourish and be their best when they feel that if they even try they will be targeted.

Mr PERRETT: This goes to Mr Leeser's question earlier about the process. The Australian Human Rights Commission, in dealing with complaints, says:

In the absence of dedicated review mechanisms, the insertion of an accept/reject phase would mean that a decision to terminate a complaint based on information supplied by the complainant would enliven the potential for an application to a single Judge for judicial review.

Do you consider that a change to the Australian Human Rights Commission Act that would allow the commission to terminate a complaint where it did meet a required threshold would just cause more delay and more litigation?

Ms Banks : That is a very real risk. Litigation in a situation where it is often, but not always, the case where the respondent has more financial and other power—and therefore can use the legal process to create delay and to put the complainant to cost and expense, that this process is designed not to have involved, for either party.

Mr LEESER: I want to follow up Mr Perrett's question. A respondent would be very unlikely to bring that case, because the commission has determined that the matter is finished, as it were. That is the purpose of having the early termination process, so it is more likely that a complainant would have to bring that particular matter. I do not know if you are familiar with the proposal that I have put forward that you would limit the scope of judicial review and the complainant would need to provide security for costs in the event that the commission determined that there was no reasonable prospect of success.

Ms Banks : There is already judicial review. Any decision that is made by the commission, if it is an administrative decision, is subject to judicial review. If they accept it, it will be subject to judicial review, unless you expressly exclude judicial review by the respondent if the complaint is accepted. My act does not do that, so a respondent can seek judicial review of my decision to accept, and I have been subject to those sorts of proceedings. Regarding the complainant having a right of review, I think if you are going to do that you need to think about something that is less burdensome than judicial review because we are terminating people's rights when we reject a complaint. They cannot do anything, and that is a very serious thing for an administrative decision-maker to do. To add a security-for-costs provision, is to make it even—

Mr PERRETT: Even with no merits.

Ms Banks : If there are no merits—yes, I think there should be a review process. If you are going to put in an 'accept-reject', I think there should be a review process. I would not say judicial review; I would say the same sort of review process we have in my jurisdiction, where it is not a costs jurisdiction, and I would absolutely urge against security for costs because that puts an even higher burden on the complainant to seek a review of a decision to terminate their rights—and our process does not include costs.

Mr LEESER: Because chapter 3 does not apply to you, you are able to make decisions in a way that the federal commission cannot, effectively. All they can do is effectively terminate—and there is no tribunal at the federal level; it is a different process.

Ms Banks : Yes, I understand that. But you could have a review process in the Federal Circuit Court that was framed in the same way as the review process in my act. Under my act, the tribunal considers the papers that I had before me, but also, interestingly, it effectively can take further information from the complainant that I was not privy to. So I have been overturned on review, which I think is an important thing to be possible, because the complainant provided additional information that changed the shape of the complaint. We certainly ask people to give us everything, but people do not always do that and sometimes, with the wisdom of hindsight, they think, 'Perhaps I should have said this.' So I think it is important not to make the bar too high because it is, as I said before, one of the few areas of law where there is any bar at all to a person seeking to exercise their legal rights. We should not take that away, particularly in an area where we say, 'This is a public ill that happens. When people are discriminated against or subjected to racist or other prejudice based behaviour, it is against the public good.' And we are expecting the complainants to pursue that; we do not say, 'This is a matter for the state.'

Mr LEESER: Doesn't it withdraw public confidence both in the operation of the commission and in the section itself if cases are brought that have no reasonable prospect of success?

Ms Banks : My understanding is that the commission does not deal with them, and I think there have been several quite public decisions quite recently—whether they are decisions or simply an absence of decisions. Maybe this is what needs clarifying, but I do understand there have been complaints taken to the federal commission where the federal commission said, 'This doesn't disclose the possibility of a breach.' That is the same test I apply; they just apply it without an accept-reject approach, I think, but I think that is a question for the federal commission. I suspect we have in some ways largely similar processes; it is just that mine is much more expressly dealt with in the act with that right of review attached to it.

Mr BROADBENT: I was listening carefully to what you have just said and I ask this question with the greatest respect and generosity, Commissioner, but I cannot understand this. Where a church, or whatever the organisation is, had a particular position that is a biblical position backed up by their philosophy—'This is what we believe; this is our position statement'—and it is very clear that for the Catholic Church in particular that is their position statement on that issue, how did you then make a decision that there may be a basis for a—

Ms Banks : A prima facie case.

Mr BROADBENT: I cannot see the leap from here to there, because it seems at odds with a lot of what you have just said today.

Ms Banks : The fact that it is said by a church does not give it special status in law. That is my first comment. The booklet was not, in its entirety, the subject of the complaint. Ms Delaney highlighted two or three elements of the booklet that she felt were cause for concern. A lot of the booklet prefaced comments, statements and expressions of belief by saying, 'It is the Catholic Church's view', 'It is the Catholic Church's belief', or 'It is the doctrine of the Catholic Church'.

Mr BROADBENT: I have not seen any doctrine, but I could probably write it myself.

Ms Banks : Yes, you probably could—as could many of us, I suspect. None of those were the subject of the complaint. Two in particularly were the subject of the complaint—and I am going to say this with confidence; Ms Delaney has written about this in public. One of them was a statement, a bald statement, that did not say, 'It is the Catholic Church's belief that', or 'It is doctrine of the church that'; it simply said, 'Messing with marriage is messing with kids.' Now, that brings to people's minds child abuse. It may not say that, but if you say 'messing with kids', people go, 'Mmm, we know what that means.' So the suggestion that messing with marriage to allow same-sex marriage to occur exposes children to risk is a pretty significant statement to make. It is clearly a statement that says: same-sex couples are not to be trusted—or, sorry, that is the inference that you can draw.

Mr BROADBENT: I find that a huge leap, because so is divorce and so is football and so is cricket and—

Ms Banks : Yes, but they do not say any of those things. They say, 'Messing with marriage is messing with kids.' So she raised this as something that is said that inferred behaviour by people of same-sex attraction. It did not say: it is the church's belief that this is the case. It simply said: it is. Another statement that she found of significant concern—again, it was not prefaced with 'It is the church's belief'—basically said: people cannot be in same-sex relationships; they can have friendships. So it basically put people in same-sex relationships on a different level to the relationship I have with my partner, the relationship a married couple has. It said: they can never be as good as a marriage-like relationship. And, again, it was not prefaced with the words 'it is the church's belief'. That was the sort of stuff that she raised.

Even if I thought that it was clear it was the church's belief, it is not my job, and I am not empowered, and I would be going beyond my statutory powers, to determine that the church had the defence available to it. Did it cause offence? It did. Would a reasonable person have anticipated it would cause offence? Well, certainly a lot of reasonable people, including our own state Premier, felt that the comment about friendships was offensive. He did not refer to the booklet, but in parliament he has said, 'I think it is offensive to suggest that people in same-sex relationships are not equal to people in marriage-like relationships.' So our Premier here made a statement, and I think he is a reasonable person, that indicated to me a reasonable person would consider that potentially offensive. And I say 'potentially' because that is really the test, and so it is a matter for the tribunal, not me, to determine whether it is protected by section 55—the defence, the freedom of expression, or the free speech defence. I have to find whether there is a prima facie case, and I did.

Mr BROADBENT: Therefore, doesn't the system then close down someone who wants to express themselves in that way?

Ms Banks : No, it has not closed—

Mr BROADBENT: When you are talking about people being closed down from one side of the argument, aren't we therefore closing people down on the other side of the argument?

Ms Banks : I think what the law expects of all of us is that we think very carefully before we speak about the impact of our words.

Mr BROADBENT: I heard that, but we are closing everybody down.

Ms Banks : No, we are not closing everyone down. We are asking everybody to behave in ways that we expect in a civilised society. I might like your car; I know I cannot just steal it. I have to stop and think before I act on my desire to do something. I have to act in a way that is consistent with Australian law. That does not shut me down. It simply says I have to behave in a way that is expected in this very civilised society we live in. I do not see that it has shut down this debate at all. People are still expressing their views about marriage very openly, very publicly and sometimes in ways that are quite harmful—on both sides. So I do not see a chilling effect having taken place. Evidence of chill would be a good thing to see if we are going to change what is a very important protective law in order to respond to that effect. I see no effect of a chilling.

CHAIR: From your experience, is there any suggestion that you might make to the committee, through this inquiry, as to how we might improve or amend section 18C that would promote constructive criticism and debate yet protect individuals against abusive or vilifying speech?

Ms Banks : Certainly I think there is some scope for thinking about providing explanation of some of the terms that already exist. The courts have made lots of determinations, and it is certainly my view that it is best for the general public not to have to go to case law to understand the meaning of words. If we can give them the words then let us give us give them those meanings as well. So I think there is that, and I think the idea of a formal rejection is an interesting thing to do. It causes delays for us, so I think you need to be cautious about its impact, but if you are going to go down that track I think it needs to be very clear what the rights of review are and how they operate so that it does not cause delays and added costs to parties and put them at risk, because this is about trying to get people resolving disagreements at an early stage. Once you get to court, it is on for young and old and I think that is a different matter. So it is about: 'Is there anything more we could do to make it clear to people that this is a preliminary part of the process; it is a part whereby it is an opportunity to find solutions instead of litigating, through a conciliation process?' But clarifying terms, yes—and ensuring that the commission is and feels empowered to explain its processes to the public and encouraging people to pay attention to that, because, just like other areas of law, people have perceptions of it that are not necessarily based in fact.

CHAIR: I thank the representatives from Equal Opportunity Tasmania.