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Parliamentary Joint Committee on Human Rights
10/02/2017
Freedom of speech in Australia

GAYNOR, Mr Bernard, Private capacity

[15:59]

CHAIR: Welcome. I advise witnesses that in giving evidence to a committee they are protected by parliamentary privilege. I remind both committee members and witnesses of the significant responsibilities that accompany the use of privilege, and encourage participants to exercise that with these in mind. I invite witnesses to give evidence that is relevant to the committee's terms of reference without unnecessarily commenting adversely on any particular person. I remind committee members that privilege resolution 1 outlines the procedures to be observed by committees for the protection of witnesses, including that witnesses who are assisting committees should be treated equitably. As chair, I am required to ensure that questions are put and answered in an orderly manner and to ensure that the proceedings are conducted with courtesy on all sides. Do you have anything to add about the capacity in which you appear?

Mr Gaynor : I lodged a submission that had considerable public support and I have won a number of important landmark cases highlighting the abuse of process within antidiscrimination law in Australia.

CHAIR: I invite you to make a brief opening statement, after which members of the committee may ask some questions.

Mr Gaynor : Thank you, and thank you for the opportunity to address this committee. By way of background, I have successfully demonstrated that the use of antidiscrimination laws in Australia is unjust, unjustifiable and unlawful. In 2014, the Chief of the Defence Force used Defence's antidiscrimination policies, based on Commonwealth law, as a pretext to terminate my appointment as an officer in the Army Reserve. In December 2015, the Federal Court found that this decision was unconstitutional and upheld my challenge to it. Last Friday, the New South Wales Court of Appeal unanimously found in my favour, dismissing a number of antidiscrimination complaints made against me under the New South Wales version of the Racial Discrimination Act, the Anti-Discrimination Act 1977. Again, the court found that the legal process instigated against me breached our nation's most fundamental law, the Constitution. These cases are of direct relevance to this inquiry for three reasons. Firstly, the inquiry's terms of reference direct it, via chapter 4 of the report into free speech, to consider a general view of antivilification laws in Australia. Secondly, last Friday's decision focused on the issue of jurisdiction and conflicts between state and Commonwealth antidiscrimination laws. Thirdly, we have just heard from those involved in the QUT complaint. My story details similar problems. It is clear that there is a systemic problem with all antidiscrimination laws and those who enforce them unlawfully here in Australia.

I now want to highlight two key elements of my matters: costs and the abuse of process. Firstly, costs: I have been forced to expend about $200,000 in my matters to obtain my rights under the Constitution. Further, I have still not paid all my bills—additional bills are on the way. In all probability, the full cost of obtaining my legal rights will reach in excess of half a million dollars. This is simply unaffordable for most Australians. As a result, they choose not to speak for fear of consequences or they enter into conciliation arrangement for payment because they cannot afford to defend themselves. Free speech is further chilled because it is free to lodge complaints. There is no financial penalty for failed complaints. The conciliation process, as detailed to me by the Anti-Discrimination Board of New South Wales, is designed to favour complainants, and complainants get to keep any money at the end of the process. This system encourages selected minorities to complain for financial gain. Further, despite the fact that I have won in both these matters, I have not been able to obtain any costs. In the Defence matter, I was awarded 50 per cent of costs but, due to an appeal, I have not been able to obtain the benefit of that decision. Further, the New South Wales Court of Appeal has indicated that it is reluctant to award any costs at all. I come to this inquiry straight from meeting with my legal representation in Sydney yesterday and via telecommunication this morning in order to address this cost issue. All of this also leads to one conclusion: when it comes to antidiscrimination law, even when you win, you lose. The process is the punishment. This also means that the system encourages complaints from selected minorities to pursue political goals and to punish those who express lawful views that they disagree with.

I will now move on to the abuse of process. Briefly, in the defence matter, my appointment was terminated, even though all internal defence administrative and disciplinary investigations against the allegations that I had breached its anti-discrimination policies found in my favour. There was not one adverse finding against me. In my matter against 32 homosexual vilification complaints, the abuse of process is even clearer. I do not have time to give all the examples. The complainant describes it as 'his work' to lodge complaints. He is responsible for about 85 per cent of all homosexual vilification complaints ever lodged in New South Wales. He has admitted to trying to leave fake comments on my webpage. He has left comments on my Facebook page, which he then uses as the basis to lodge complaints against me. He complains about his own comments! Amazingly, this complaint was accepted by the Anti-Discrimination Board and then referred to the tribunal. The complainant has threatened me with assault. He has encouraged others to assault me at tribunal hearings. He has offered my family details to Islamic organisations, forcing us to move—

Mr PERRETT: Mr Gaynor, you are talking about New South Wales, not—

Mr Gaynor : Yes, New South Wales. He sent my family details often to Islamic organisations, forcing my wife and our seven children to move for our safety. The complainant has publicly questioned the sexual preferences and orientation of my children, and he has used his unfounded and unlawful complaints as the basis to defame me in communications to politicians, defence officers, police officers, journalists, bishops and others. The complainant demanded at the outset that I pay him $10,000 in order to make the complaints go away. It should be noted that there is a political aspect to this particular complainant. A Greens MP often attends his hearings before the New South Wales Anti-Discrimination Board.

The process problems go beyond the complainant. The New South Wales Anti-Discrimination Board has admitted in writing to me that it has breached its own statutory obligations towards me and failed to provide me the information required about its investigations. Its investigations are in name only. For instance, it did not investigate the vexatious nature of the complainant's complaints, even though it had the power to dismiss those complaints for vexatiousness. It refused to include my evidence on that point when it referred the matters to the tribunal. It investigated me for my beliefs on marriage, even though the board itself has declared its support for homosexual organisations and homosexual marriage. There are a number of other problems.

Up until last Friday, I was facing fines of up to $1.6 million as a result of the complaints. And there was the prospect of contempt proceedings if a finding was made against me and I failed to apologise. Another of the complainant's victims was actually in the middle of contempt proceedings last week. I want to make it quite clear that the processes underway in New South Wales could have seen people imprisoned until the decisions were handed down. The decision was only handed down because I was able to fundraise significant amounts of money and challenge the laws and the processes underway.

I also want to make it very clear—and it is important that the committee is looking at not just the Racial Discrimination Act, although I know it is focused on that, but wider anti-discrimination laws—that it seems from the evidence presented today and from what we have seen time and time again in the media that it is conservative people who express conservative beliefs who are targeted through the complaints process. There is not just a perception that the ant-discrimination law system is controlled by left-wing progressive thought police. In my case, I was dragged through the system twice for expressing lawful, conservative political beliefs.

Finally, it is important to note that throughout the anti-discrimination processes used against me, the only people to have been found to have breached anti-discrimination law or to have acted unlawfully were those who enforce anti-discrimination laws. The tribunals, the boards, the people implementing ant-discrimination decisions have all been found to be operating outside the law. Thank you.

Mr PERRETT: I should declare that I am a legal officer in the Royal Australian Air Force—a flight lieutenant. I have never had anything to do with your case, I should say.

Mr Gaynor, in your opening statements you talked about 'selected minorities'. Who are the selected minorities, and who selects them, in your opinion?

Mr Gaynor : It is not my opinion; it is fact. The government, whether it is state or Commonwealth, selects the minorities when it enacts these laws. For instance, New South Wales—

Mr PERRETT: Sorry, I am not as concerned with the New South Wales laws. I am talking about the Racial Discrimination Act.

Mr Gaynor : Let me answer the question this way. First of all, the New South Wales parliament has decided that homosexual persons and transgender persons can lodge vilification complaints, and also people can lodge racial discrimination complaints. So they are the selected minorities. I cannot lodge a complaint even though, for instance, a person has made quite abusive and disgusting statements about my sexuality. I cannot lodge a complaint, because I am not of a particular sexual orientation that is allowed to lodge complaints.

Mr PERRETT: In Queensland we have religious protections. If it were based on your faith, you might have grounds in Queensland, perhaps. Have your turned your mind to that? I am not aware of the New South Wales—

Mr Gaynor : No, in New South Wales there is no religious vilification law.

Mr PERRETT: Yet another way Queensland is better than New South Wales. Would you agree with that?

Mr Gaynor : No, I would not agree with that at all, and the reason I would not agree with it is—first of all, I take the point that Tony Morris QC made that it seems rather strange that only racial vilification is encapsulated in the law but other forms of vilification are not; I understand what he is saying—that the problem, I think, cannot simply be addressed by expanding the legislation to cover other forms of vilification. What we have is a systemic problem within the antidiscrimination process where it does not actually matter what the law states; they run a progressive agenda within those organisations and they target people who express conservative views. That is what happens. So expanding the law, for instance, into religious vilification will see people who criticise Christian beliefs very heavily simply not facing the same scrutiny as people who might criticise Islamic beliefs. We have already seen an example of this.

Mr PERRETT: So you would be against the grounds opening up to religion.

Mr Gaynor : Absolutely, and I will use the Racial Discrimination Act as an example. A judgement that I referred to in my submission—

Mr PERRETT: Under the heading 'Whites need not apply'?

Mr Gaynor : That is exactly right.

Mr PERRETT: It is section 1.4 in your submission, and I will take you to that and the words of the judge from the Federal Magistrates Court:

… the words "white" or "whites" … are not of themselves offensive words or terms of racial vilification. This is particularly so because white or pale skinned people form the majority of the population in Australia.

So it is your understanding that therefore Senator Leyonhjelm could not run a case because he is white?

Mr Gaynor : I do not understand all the ins and outs of Senator Leyonhjelm's complaints and what happened there, but you have a Federal Magistrates Court decision dismissing a complaint made about racist statements based on a person's white skin because the majority of people are whites. That does not take into account the offensive nature of the statements at all. In fact, what it says to the ordinary person is, 'I can make offensive statements about white people and I can get away scot-free.' I will give you an example. Every day—or not every day but quite often—we see protesters burning the Australian flag. In our democracy—

Mr PERRETT: You must go to different places to me.

Mr Gaynor : Well, it happens quite regularly. It is reported in the news—protesters burning the Australian flag. For whatever reason they are doing it, many, many Australians, including me, find that incredibly offensive.

Mr PERRETT: Most Australians, I think, would.

Mr Gaynor : Yes. But I think, Mr Perrett, you will probably be the first—and I do not want to put words in your mouth—to say we cannot bring laws in that would put people in jail for doing such a thing. We live in a democracy. People are entitled to express their views, even if it means burning our national flag. But if I were to walk out the front of Parliament House and burn an Aboriginal flag I would not have the same protection as someone burning the Australian flag. I would probably face—

Mr PERRETT: I think the Indigenous flag is a national emblem, so you might be getting—

Mr Gaynor : You can burn the national emblem, but you cannot burn an Aboriginal flag.

Mr PERRETT: There are three national emblems that I think you might have trouble with, but you might have to talk to your lawyer about that.

Senator PATERSON: Just to clarify, Mr Gaynor, you have never been party to an 18C complaint, have you?

Mr Gaynor : No, that is not quite correct. I have lodged a complaint against a federal member of parliament from New South Wales—late last year.

Senator PATERSON: Are you able to talk about that?

Mr Gaynor : I am happy to talk about it, and I think it has been well-publicised in the media. Ms Burney made a comment about white people. I believe that the entire Human Rights Commission and the apparatus and the acts have failed and should be scrapped. But I also believe that if there is going to be a law it has to protect all Australians equally. I also have no faith or confidence whatsoever in the Human Rights Commission to act impartially, which is why I have lodged a complaint. I think my apprehension, or my concerns and suspicions, are borne out by these facts. When Bill Leak had the complaint lodged against him he was required to respond in a very short period of time. I have no idea where my complaint is at other than that the Human Rights Commission sent me a letter late last year saying, 'We are probably going to dismiss it, unless you provide more information,' which I did in December last year. I have not heard back from them. It has certainly been a longer time frame than the Bill Leak case, and there has just been silence. It goes to my point—

Senator PATERSON: If you are really lucky it will take 14 months, like it did for the QUT students!

Mr Gaynor : This goes to the suspicion, which I think is borne out by the facts, that if the Human Rights Commission wants something to go ahead, it will, and if it does not want something to go ahead because it does not fit their agenda, it will not.

Senator PATERSON: One of your concerns generally about this area of law is that there is nothing to stop a vexatious litigant making lots and lots of claims.

Mr Gaynor : That is not quite true.

Senator PATERSON: Okay, please clarify it.

Mr Gaynor : For instance, under the New South Wales act the board does have the power to dismiss vexatious complaints. I provided detailed, significant evidence that the complaints were being made for vexatious purposes. The board simply said, 'We are not going to investigate that.' So, even though they have a statutory power to dismiss vexatious complaints, they simply chose that they were not going to consider that at all in their investigations. I actually do not know what they did consider, but they did not include my evidence on vexatiousness in the response that they sent on my behalf to the tribunal.

Senator PATERSON: The national Human Rights Commission has the power to dismiss vexatious complaints. We do not know exactly how often they do, so accept that we know it is generally rare, that it is not something they often use. What would you advise or advocate that we do in order to more often dispose of these vexatious claims, if we think they are being made?

Mr Gaynor : While you have a process where complaints are free, and the complainant gets the money at the end of it, and the conciliation process is biased towards the complainant, there will be vexatious complaints. That is not unexpected; it is actually a symptom of the legislation. The only way to address that is to have cost implications.

I want to make another point that goes a bit broader or deeper than this. In New South Wales—I will take us back there for a second, but it does apply to the Racial Discrimination Act—certain persons have made statements that there should be jihad against Jewish people. It was well-publicised in the media when these things occur. That statement—

Mr PERRETT: That was written in the media?

Mr Gaynor : Yes. That statement is not only covered by the Commonwealth Racial Discrimination Act but is also covered by the New South Wales Anti-Discrimination Act, where complaints can be made as well. That statement has gone unpunished—no action has been taken against that statement at all.

Senator PATERSON: And probably other laws against incitement to violence, at various levels.

Mr Gaynor : But no action has been taken whatsoever, and this is my point. We do have laws in Australia, criminal laws, that have very serious penalties for incitement to violence on the basis of racism. So you have a statement that most Australians would agree is certainly off-colour, and there is a good argument to say that that statement does incite violence against a certain group on the basis of their race. Nothing has happened. But you have this whole apparatus, called the Australian Human Rights Commission, dealing with cartoons and all these other complaints that are simply trivial compared with other statements that have gone unpunished, with no action being taken. So I would say the whole process itself is designed to undermine the criminal law preventing serious racial hatred. It creates this frothing, erupting bubble of pointless, vexatious, trivial claims, where at the end of it someone hopes they can get five grand or 250 grand, or whatever it is, or put their political opponent through hell for three years. That is how it is being used.

Mr LEESER: I want to ask about your process reforms, because I think there are some good ones here, and some interesting ideas. You think there should be a fee to lodge complaints. What sort of fee?

Mr Gaynor : I can give you my own experience. When I lodged my complaint with the Human Rights Commission it took about two minutes—that is all it takes. There is no fee and anybody can sit down and spurt something out. So there should be a fee. After that, there should be an initial assessment of the complaint—

Mr LEESER: Do you know if any of the other human rights type bodies of the states charge fees for lodging a complaint?

Mr Gaynor : I could not speak for all the states, but I would say that the answer is probably no. Certainly in New South Wales there is no fee. I think there is no fee in Queensland. So there is no fee to lodge complaints. That is the first point. Secondly, there is no penalty for the person if they lodge complaints that are not upheld, or, for instance, there is no penalty for a person if they go to someone else's Facebook page, which is what happened to me, and make a completely untrue statement about what I said and then they lodge a complaint about their own comment on someone else's Facebook page. There is no penalty for that whatsoever. In fact, the board says, 'This fits our agenda and we are going to flick it through to the tribunal.'

Mr LEESER: This is in the New South Wales context?

Mr Gaynor : Yes. I have talked about New South Wales a lot but I want to make the point and stress it, especially after the QUT students, that there is evidence across the board that these anti-discrimination bodies are acting outside the provisions of the Constitution of our nation. They are acting in a way that abuses natural justice and the process of law. It is a systemic problem and changing one or two words in a clause is not going to address that at all.

CHAIR: As there are no further questions, thank you for appearing before the committee today.

Mr Gaynor : Thank you for the opportunity.