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Legal and Constitutional Affairs Legislation Committee
Human Rights and Anti-Discrimination Bill 2012
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Legal and Constitutional Affairs Legislation Committee
Humphries, Sen Gary
Brandis, Sen George
Furner, Sen Mark
Pratt, Sen Louise
Wright, Sen Penny
Boyce, Sen Sue
Ryan, Sen Scott
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Legal and Constitutional Affairs Legislation Committee
(Senate-Wednesday, 23 January 2013)
CHAIR (Senator Crossin)
ACTING CHAIR (Senator Humphries)
Ms S Ball
Ms R Ball
- Mr Gardiner
Content WindowLegal and Constitutional Affairs Legislation Committee
Human Rights and Anti-Discrimination Bill 2012
BERG, Mr Chris, Director, Policy, Institute of Public Affairs
BREHENY, Mr Simon, Director, Legal Rights Project, Institute of Public Affairs
COLEMAN, Mr Richard, Solicitor, Fairfax Media Ltd
FLYNN, Ms Julie, Chief Executive Officer, Free TV Australia
SAAB, Miss Sylvie, Manager of Media Policy and Regulatory Affairs, Free TV Australia
SCHUBERT, Ms Georgia-Kate, Head of Policy and Government Affairs, News Limited, Joint Media Organisations
WILSON, Mr Tim, Director, Climate Change Policy and the Intellectual Property and Free Trade Unit, Institute of Public Affairs
Evidence was taken from Ms Flynn, M i s s Saab, Ms Schubert and Mr Coleman via teleconference—
CHAIR: Welcome. Ms Schubert and Mr Coleman, are you on speaker phone?
Ms Schubert : Yes, we are. We will bring it closer to us.
CHAIR: Because you are on speaker phone, we are having a lot of difficult making out what you are saying.
Mr Coleman : And vice versa: I am having trouble understanding you too.
CHAIR: That may well be because you are on speaker, we think. I am not sure we can do much about it. We will just have to proceed. I have got submissions from each of these three organisations. They are on our website and they are numbered 331, 330 and 484 respectively. I assume each of the three organisations have something to say as an opening statement. Please be very brief, like a couple of minutes each, because the value is in our asking questions really. Let us start off with the Institute of Public Affairs.
Mr Breheny : We thank the committee for inviting us to give evidence this afternoon. The exposure draft Human Rights and Anti-Discrimination Bill 2012 is an attack on our fundamental freedoms. The draft bill is not simply a consolidation of existing Commonwealth acts, as the government has claimed; it is a radical overhaul of antidiscrimination law. There are many problems with the draft bill. The most concerning aspect of the draft bill is the significant threat it poses to freedom of speech. The definition of discrimination has been expanded to include conduct that offends or insults. Given this new definition of discrimination, the inclusion of political opinion as a ground on which a claim can be made is absurd and dangerous. Under the draft bill, you could be taken to court for saying something that offended someone because of a political opinion they hold.
The freedom to express political opinions in all areas of public life, even those that offend and insult others, is central to the functioning of our system of government, as the High Court has found. By undermining the freedom of speech, the draft poses a grave threat to the health of Australian democracy. It is wrong to say that the draft bill could be amended to a point where it is acceptable. Simply removing the words 'offend' and 'insult' from the new definition of discrimination will not save the draft bill. The real problem is the whole project itself. The draft bill is not about antidiscrimination; instead, the consolidation project has resulted in a draft bill that undermines liberty and places the state at the centre of our interpersonal relationships. Rather than making the law clearer and simpler, the draft bill adds significant complexities to this area of law.
The draft bill also reverses the burden of proof for claims of discrimination. This is completely unacceptable. The person bringing a legal claim should always bear the burden of proving their case. This principle—the idea that a person is innocent until proven guilty—is the centrepiece of a just legal system. Reversing the burden of proof creates an unjust system.
The draft bill will erode civil society by encouraging reliance on apparatus of the state for the resolution of private disputes. It threatens to lead Australia towards a US-style culture of litigation. The constant erosion of our freedoms must end. This draft bill is a disturbing example of the ever-increasing power of the state. It shows that it is now time to swing the pendulum back towards liberty rather than away from it and to take back control of our own lives. The draft bill is a threat to freedom of speech, freedom of association and freedom of religion. The Institute of Public Affairs calls on the committee to recommend the outright rejection of this dangerous draft bill.
CHAIR: Thanks very much. Ms Schubert or Mr Coleman?
Mr Coleman : I will make a few points from the Right to Know Coalition. The first thing that we are recommending is that the terms 'offends' and 'insults' be removed from section 19 of the draft bill. We think that this lowers the threshold unacceptably for these types of complaints and it is likely to inhibit freedom of speech and have a chilling effect here. We can see an increased number of cases being brought under this legislation, if it ever is passed through parliament, because it will be much easier for the thin-skinned and the oversensitive to bring these types of actions.
Secondly, we do not think that there should be a subjective test. We think that an objective standard should be inserted into section 19 equivalent to the test that is in section 51. We object to the reversal of the onus of proof. This onus of proof that is proposed is the same onus of proof in defamation and is one of the main reasons why our defamation laws in Australia are frequently criticised for being oppressive and for restricting free speech. So we think that we should maintain the existing burden of proof.
CHAIR: All right. Thank you, and thanks for being so concise. Miss Saab or Ms Flynn, do you have some comments as an opening statement?
Ms Flynn : Yes, thank you very much. We support the joint media submission. We put in, however, a separate submission to make the point around the fact that commercial television broadcasters have a code of practice and have a complaints provision. This is well understood and well used, and we think that that is a point that should be taken into consideration when the bill as a whole is being looked at. We share the concerns raised by Mr Coleman. We also have some additional concerns about the exception for media not being consistently applied, and we are happy to talk about that. We do agree most strongly that the drafting of this bill as it currently is will have a severe chilling impact on all broadcasters across the many programs that are produced in any one given day. Thank you.
CHAIR: All right. We are going to go to questions.
Senator HUMPHRIES: Can I turn first of all to the submission from the IPA. I was intrigued by the conclusion that you reached that the effect of this legislation is to reintroduce the law of blasphemy. Can you just explain how you come to that view.
Mr Breheny : By defining 'discrimination' by reference to conduct that offends, insults or intimidates a person on the basis of particular attributes and then including religion as one of the attributes, it means that you can now take someone to court for offensive comments that they make about your religious views. This, to me, is a clear reintroduction of blasphemy law, and it would seem to me to be a completely inappropriate result of this bill.
Senator HUMPHRIES: With the difference being, I assume, though, that under the old blasphemy law you needed to prove that the offending words confronted or affronted mainstream religious sentiment or something of that sort—I have not precisely drafted that—whereas under the proposed law you would only need to prove that you have offended a person's religious views, even if they are not mainstream.
Mr Breheny : To a very large degree, this is more dangerous than a traditional blasphemy law because in traditional blasphemy law you could follow an approved and existing doctrine. This is a shifting blasphemy doctrine where it is entirely dependent on the person who is listening to your particular views about religion. So we consider this to be very akin to blasphemy laws, but it is a different beast. But it would certainly make discussion about religious doctrine in any of the areas of public life that have been described extremely risky and extremely dangerous, and you would be potentially liable if someone took offence or felt insulted.
Senator HUMPHRIES: You also talk in your submission about the reversal of the burden of proof and you point out that the person has to make the allegation and:
The court only needs to conceive of discrimination occurring on the basis of facts that are presented by the complainant.
The conclusion that there was discrimination need not be the only or even the most likely inference to be drawn from the facts; it is sufficient that it is within a range of reasonable inferences.
So that means that as a complainant you do not have to prove that, on the balance of probabilities, this was what happened; you only need to prove that this is one possible interpretation of what has occurred.
Mr Breheny : Essentially, it just needs to be imaginable to the court that discrimination could have occurred based on the facts provided by one side, the complainant. The point that we are making here in relation to the reverse onus of proof is that we have as a central principle of our legal system—a central principle that has been developed over hundreds of years of English common law—the idea that the complainant should be the one that bears the onus of proving their claim. It makes sense on a number of levels, but one of those is the idea not just in a legal sense but also as a matter of logic that people must be presumed innocent until proven otherwise—until it is proven by the complainant that unlawful conduct has taken place.
That seems to me to be a pillar of any just legal system—but certainly Australia's legal system. By reversing the onus of proof—and all we have seen is spin from the government and from others that this is a shifting or a sharing burden of proof—you undermine that principle and therefore create an unjust legal system, when the current system is one that is proper and is just.
Senator HUMPHRIES: Indeed. I would like to direct a question to Free TV Australia or to Joint Media Organisations—but perhaps more particularly to Free TV Australia. In any given year, how many complaints would Australian television stations receive about the content of matters broadcast by those stations—the sort of thing that you might say offended viewers within the terms of this legislation?
Miss Saab : Obviously it varies from year to year but currently it is around 10 to 15 per cent of complaints. Some years it might be higher if there is a particular issue that pops up, as it does in some of these categories from time to time. But I think the most significant figure I can give you is that on the complaints that were adjudicated by the ACMA over the last five years, there have only been four complaints that have been upheld.
Senator HUMPHRIES: You said 10 to 15 per cent. What figure are we talking about of the total number of complaints each year?
Miss Saab : The total number of complaints—that is right.
Senator HUMPHRIES: But what is that total number? That is what I am asking.
Miss Saab : It varies. In 2010, I think it was around 3,000.
Senator BRANDIS: I want to explore some perhaps unintended consequences of this bill and I want to direct your attention specifically to clause 17, the protected attributes—of which there are 18 listed. Of the 18 listed, 11 are defined in the definition section of the bill and seven are not. Of the seven protected attributes that are not, two of them, paid political opinion and social origin, are new but they are also vague. I want to put a hypothetical proposition to you and invite you to comment. It is not a hypothetical, actually; I will draw an example from real life and invite you to comment on it. We all remember the infamous Andrew Bolt case in September of the year before last in which Mr Bolt was successfully proceeded against under section 18C of the Racial Discrimination Act for saying some, I thought, perfectly sensible things about the availability to white-skinned Aborigines of welfare benefits designed for Aboriginal Australians. It seems to me that under this draft legislation Mr Bolt could have said, 'I was expressing a political opinion and that is a protected attribute under section 17(1)(k), and I was expressing that opinion in the course of my work as a columnist, which is specifically provided for in clauses 22(2)(a) and 22(3), and you are now proposing to subject me to unfavourable treatment, which is unlawful under clause 19(2). We don't even need to get into the question of whether it offends or insults; it is unfavourable treatment because I'm the subject of complaint and potentially, as occurred in the particular case, I was the subject of an adverse finding which limited my freedom to express these wicked views.'
I use that real-life example to illustrate the point that including political opinion as a protected attribute must mean all political opinion. We cannot say that political opinions which the squishy left like are okay and that political opinions that the stentorian right like are prohibited, so it must mean all political opinions. But if you protect all political opinions, including political opinions which, arguably, are invidious to other objectives of the act, does that not mean that the effect of the act is to work against itself so that the very conduct which, under some provisions, would be unlawful is, under at least the political opinion attribute, protected and would that therefore not always be a defence? Would you like to comment?
Mr Berg : I might ask Simon whether he can answer the legal question but I think there is a very important point, that once you start making a decision about what speech can or cannot be said lawfully or legally and once you start writing laws that specify that, then to a large degree that makes all opinion political in some way. You could express something contrary to existing law and, regardless of whether it is obviously political content, it is a political opinion. The more we extend these sorts of laws, the more we extend vilification and discrimination and harassment law, we are going to head down that rabbit warren and courts are going to have to start debating these circular issues.
Senator BRANDIS: Do you say anything, Mr Breheny?
Mr Breheny : I would agree that examples like the one you have highlighted are open on a black letter reading of the law. One of the things which has shocked me is just how many of those seemingly absurd examples would be open to courts looking at particular situations that might come before them and applying the law as we have it in the exposure draft bill.
Senator BRANDIS: You see, a lot of public comment, including from me, has focused on what I say is the overreach of including offence and insult are as among the defined categories of unfavourable treatment but my concern is that the vice of this bill, so far as concerns freedom of speech, goes much further and, because of the very vagueness in which the protected attributes are expressed, particularly the newer protected attributes, nobody knows where they stand in relation to freedom of speech. It might be that this in fact, as in the example I gave you, is an extreme protection of freedom of speech because all political speech will be protected, if you cannot treat somebody unfavourably because they express a political opinion. But I suspect a court would read that down and say it has to be subject to the overriding objectives of the act and read in context.
But my concern is that, by juggling these vague and undefined concepts, at the very best for this bill it leaves one uncertain as to what one might in fact say in the exercise of one's freedom of speech. One does not even need to get into the debate about whether 'offend' or 'insult' should be relevant categories of unfavourable treatment. And that—and perhaps Ms Flynn and the other media people might care to comment—has the chilling effect that we will never know what an invidious effect this has had on freedom of speech, because of self-censorship.
CHAIR: Does anyone want to answer that or comment? I am going to have to go to someone else before we run out of our time with you.
Mr Breheny : I would completely agree.
Mr Wilson : Can I just say that I probably agree as well. Particularly for concepts like 'social origin', which are very amorphous concepts which can be moved and bent and interpreted in different ways, you create a huge problem. As you rightly point out, Senator Brandis, what that in the end will do is suppress freedom of speech, not because people get taken to court but because it becomes almost impossible to know what you can and cannot say, and as a consequence people will have no choice but to say nothing.
Senator BRANDIS: Mr Wilson, I completely agree with you! But I have an even deeper concern, because, probably unlike some of you at the IPA—I know the IPA; I know their general philosophical orientation—I strongly support anti-discrimination law. My deep concern is that this is not really an anti-discrimination law at all; it is something else packaged up as an anti-discrimination law. Because it overreaches so far, particularly in relation to the provisions that we have been discussing, it is really a law against controversy, because, if we have an undefined category of political opinion and we have undefined criteria of insult or offence, nobody knows what they can say, and therefore maybe in a robust political discussion they might throw caution to the winds and say it anyway, but the media, who might be subject to a liability, as Mr Bolt's broadcaster was, will self-censor, and it will have this chill effect. That is not what anti-discrimination law was ever intended to do.
Mr Breheny : I would agree, and the one comment that I would make about that is that this is a perfect example of why the consolidation projects will fail. The reason it has failed and the reason we have this absurd definition of discrimination under the exposure draft is that there are differing concepts under the existing discrimination acts, and you cannot merge some of these concepts. You cannot merge them without losing all meaning of what discrimination—and the word 'discrimination' is defined in here—actually is.
Senator BRANDIS: Yes, I agree.
Senator FURNER: I would like to hear your opinion—and this is based on the submission of another submitter, the Ambrose centre, in particular on this part that we are debating now in respect of section 19. They infer that the part would go to the extent that if a person criticises a political party, a political leader, it therefore opens that person or that party, subject to the offence, to be considered a complaint for discrimination as well. Do you concur with that view, or do you have a different position?
Mr Breheny : One of the things that I would say is that there are all number of hypothetical scenarios that can be thrown up by this legislation. Because this is such a radical overhaul of existing discrimination law, it is unclear whether or not a court would decide one way or another on those questions, but certainly on my reading of this law it is open to a court to determine questions like that, where a complainant would win cases like that.
Senator FURNER: Are you familiar with the Catch the Fire case at all?
Mr Breheny : Yes, I am.
Senator FURNER: In terms of that particular case, does this draft legislation concern you in regard to that example being used for that individual to be open for discrimination?
Mr Breheny : I think it is clear that people who hold religious views that are different to those expressed may have been offended. I think it is clearly open that others would have been offended by what went on by things that were said by Catch the Fire ministries.
Ms Flynn : If I could just comment on section 19. Our concerns and I think the broader concerns of the media submitters are that 'offend' or 'insults' is very much a lower threshold than has ever been there before. The complication with it is added to by the fact that it is a subjective standard, because the proposed definition of discrimination in this section is entirely subjective. That leads to section 18C of the Racial Discrimination Act; it imposes an objective reasonable test, which is replicated in section 51 of the bill dealing with racial vilification but it is not replicated here at all. And there is no exception provided at section 19 for media organisations, despite the fact that there is an exception provided at section 51 for racial vilification. I think we would all share the concerns about the level of inconsistency in the drafting of the various elements of this bill.
Ms Schubert : I might just build on Julie's comments and say that, then when we look at section 53 in relation to publications, the exception that is provided at 53 is actually not as broad as that provided at section 51 racial vilification. So, again, we would like to see that replicated. It goes to the heart of the issue of inconsistencies throughout the bill.
Mr Breheny : One thing I would add is that not only is there a reasonable person test under existing racial vilification laws, under section 18C of the existing Racial Discrimination Act and also under section 51 of the exposure draft, but also in relation to sexual harassment where a similar test is used there is a reasonable person test as well. It seems like the reasonable person test has been omitted from section 19 of the exposure draft purposefully.
Senator PRATT: Clearly, you have not said you are against antidiscrimination law as a whole per se. In terms of the way the system currently operates, are you generally supportive of the overall operation of antidiscrimination clauses for individuals?
Mr Breheny : I would certainly say that the current discrimination regime is preferable to the exposure draft.
Senator PRATT: Do you support antidiscrimination law in general—along the lines of how Senator Brandis might characterise it?
Senator BRANDIS: What might I characterise?
Senator PRATT: I don't know.
Unidentified speaker : You vandalised it.
Senator PRATT: No, you did not; but I am interested to hear how you would characterise antidiscrimination law that you might support.
Mr Wilson : We obviously think that discrimination for non-performance based reasons is a terrible idea, least because it is inefficient, as Simon rightly outlined. Apart from the removal of section 18C, we are broadly comfortable with where current discrimination law is. We certainly support very strongly discrimination law related to government and the way it operates towards government, but in a broad philosophical concept we are not a big fan of discrimination law being imposed across civil society in the private sector.
Senator PRATT: So if someone is discriminated against because they are an unmarried mother who is working at a government school, should they have recourse to antidiscrimination laws?
Mr Wilson : A government school is a government school and, of course, as we have already outlined, there should be antidiscrimination provisions provided for government employment.
Senator PRATT: What if it is private sector employment?
Mr Wilson : As we have already stated, we think discrimination is abominable and actually does nothing and does not serve the best interests of those within those schools—for instance, if it happened within the private sector, an independent school. But, ultimately, schools should have a choice about what they think best fits with their values and their aspirations around whom they should employ.
Senator PRATT: So if the private sector wants to choose between two employees, one of whom has some protected attributes and the other of whom does not but on paper they look pretty equal, should they have the right to discriminate according to those attributes?
Mr Wilson : It is a hypothetical example that would be almost impossible to answer because we do not know the details of it—
Senator PRATT: Should the private sector able to make its choice?
Mr Wilson : The private sector should be able to make choices, and they do themselves a disservice if they do anything in employing people who do not get employed on performance grounds.
Senator PRATT: Do you believe someone should have recourse to anti-discrimination law under those circumstances, or not?
Mr Berg : The principle that we keep dismissing, or forgetting, in all this discussion about discrimination law, particularly in the exposure draft, is one of the most basic human rights, which is the right to freedom of association. It has been recognised as such throughout the long history of human rights. It is in the US bill of rights and it is in the UN declaration of human rights but it is rarely, if ever, discussed when we discuss these sorts of things. We have come here today to discuss the exposure draft. As Simon and Tim have said, in our view the existing system is vastly preferable to the exposure draft. But we do agree that we have some serious concerns about some of the existing anti-discrimination law, which we hopefully look forward to discussing in the future if a future government starts pulling it back.
Senator BRANDIS: It seems to me that your objection to discrimination is essentially an economic objection—that it is an inefficient allocation of resources—not a moral objection. But let me put a—
Mr Wilson : I would tackle that by saying it is not actually true. Each one of us as individuals opposes discrimination on non-performance grounds on multiple grounds, one of which might be economic, but also of course on moral grounds about our own sense of personal morality.
Senator BRANDIS: Let me throw a really simple example at you that has happened in Australian history endless times, though not recently: an Aboriginal person goes into a pub in some outback town, and the publican, who operates under a licence, says to the Aboriginal person, 'We do not serve blacks here.' Should there be a law against the publican saying that? I say there should be. What do you say?
Mr Breheny : We share your disgust.
Senator BRANDIS: Should there be a law against it?
Mr Breheny : Seriously, on a personal level we share your disgust; we are just as morally outraged as everyone else in the room. The distinction we make, though, is between us making moral judgements and us making legislative judgements, and those to us are two completely separate questions.
Senator BRANDIS: So you do not think legislative judgements are also moral judgements?
Mr Berg : The Australian delegation to the original convention on anti-discrimination pointed out that you cannot legislate people into morality. We share the Australian delegation's view on that.
Senator WRIGHT: We are really talking about legislating about behaviour, aren't we?
Mr Breheny : Yes.
Senator WRIGHT: And that is something we can do. Mr Wilson, I would like to go to the issue of exceptions for religious organisations and schools. I noticed on 16 January this year that you tweeted—can I quote your tweet?
Mr Wilson : Yes, you can quote because I do not remember it.
Senator WRIGHT: You said, 'Basically I think religious employers should be able to discriminate but not with public funds.' Can I take it from that that you are of the view that it is not acceptable for religious organisations, or schools, that are receiving public funds to discriminate in a way that would be contrary to what are essentially going to be legislated public standards of behaviour?
Mr Wilson : I think it is very entertaining how my tweets have been brought up in parliamentary inquiries, but of course the limitations of 140—
Senator BRANDIS: That is because you are such a celebrity, Mr Wilson!
Mr Wilson : The reason the word 'basically' is there at the front is because 140 characters does not perfectly include every dimension of my opinion. I think that, just because we have seen an engorgement in the size of the state, civil society organisations therefore do not become a part of the state. As we have already said, and made clear, we think anti-discrimination laws are a reasonable operation for matters of the state, but a religious school by itself does not automatically become part of the state. So I am clarifying that tweet by saying I think people should reasonably have a right to exist outside of the state even though they might receive public funds.
I say this from a bit of public experience. My partner—who, just in case there is any ambiguity about it, is a man—used to work within the Catholic education system. He decided to remove himself from the Catholic education system because of the real possibility that, because of his sexuality, he would be unable to progress in a standard way through the system. It is particularly unfortunate, but, as Mr Berg already outlined, the principle of freedom of association is a human right; it is an incredibly important one, like free speech; and it is one that we will stand by and that we think it is appropriate to defend, even in difficult circumstances.
Senator WRIGHT: On the example that Senator Brandis gave about the Aboriginal person being served in the pub, what would be your view about that in terms of legislation as opposed to personal moral affront or disgust at that behaviour?
Mr Wilson : My personal and moral affront is unambiguous about that sort of conduct. Part of the unintended consequence of anti-discrimination laws is that, by not allowing that person to show their bigotry and their hatred towards somebody else, the public cannot boycott that venue and hold people to account for their conduct. This is part of the problem. I understand the hypothetical. I understand why it is so outrageous, because I share that view, but will anything necessarily be achieved by that in terms of advancing the interests of those persons? No. It means a racist gets more money. If you think that is a good outcome then maybe there is something to be said for imposing morality through law. I am not such a big fan of giving racists money.
Senator WRIGHT: So if we were discussing the introduction of the original Racial Discrimination Act, for instance, you would be putting the position that that was a mistake and that we should not be doing it?
Mr Wilson : I have not read the Racial Discrimination Act recently so I cannot answer that question.
Senator WRIGHT: It is essentially legislation that was historically designed to deal with behaviours that meant significant members of the Australian community could not participate fully because of behaviours of others, so the freedom to associate would trump freedoms of other people to be able to participate in the economic and social life of the nation.
Mr Wilson : As I keep pointing out, such conduct and discrimination abhors me, but the principle of human rights is that they apply to everybody equally and that everybody has them, and one of those is the freedom of association. Unless, Senator, you are disputing that, then I do not think they should be trumped by law. In fact, the very principle of human rights is that they cannot be taken away by government; they have to operate and exist outside government.
Senator WRIGHT: But you would agree, and this is part of the discussion we have been having today, that human rights sometimes butt up against each other and it is a matter ultimately of balancing those, one against the other.
Mr Wilson : No, you have a human right of freedom of association, you have right of speech; I am not sure I am convinced there is a human right against discrimination, as abhorrent as it is.
Senator WRIGHT: I was not at all intending to suggest personally you had a different view. This is an issue where we have to look at the legislation and look at behaviours that we are legislating for, irrespective of what people say their moral views are.
Mr Wilson : I understand, Senator. This comes back to the point that we are here to make around free speech. The principle around free speech is that people have a right to free speech. They do not have a right not to be offended or insulted, as the provisions of the bill currently lay out. This is a fundamental problem with the bill, because there are some things people are inferring or manufacturing into being some sort of human right so you can have one knock out the other. That is not how human rights work. Human rights are indivisible and are given to you basically because of your birth. In this case I am not convinced that there is actually a conflict of human rights, as you outlined.
Senator WRIGHT: Yes, but we have definitely had a discourse that goes further than just talking about free speech in terms of the role of anti-discrimination legislation. Essentially, I have heard that there is a position or a view being put that it is perhaps not legitimate to even be looking at broader aspects of anti-discrimination legislation, leaving aside the free-speech issue.
Mr Wilson : No, you have not actually heard that, Senator. What we have made crystal clear is we believe that anti-discrimination laws should operate on government. That is different from what operates within the private sector and within a free society, in the same way that we do not believe that Greenpeace should be forced to hire a particular person who is a big advocate of the coal industry, or that Joy 94.9, a gay and lesbian radio station in Melbourne, should be forced to employ a homophobe, or any other similar situation you can come up with. Discrimination occurs within society. Sometimes it exists for the right reasons, because there are organisational goals that people, when they freely come together and associate, believe in. People should be allowed to reasonably exercise those and they do themselves a disservice if they shoot themselves in the foot and they subtract people from employment because of something that is not relative to the objective of the organisation. I think it is a very fair and reasonable principle.
Senator BRANDIS: You seem to be taking—if I may say so, Mr Wilson—a very absolutist view of freedom of association. I myself think that freedom of association is a less absolute right than freedom of speech, but there are other rights as well with which it might be inconsistent. The philosophical problem I have with your position is that you seem to live in a universe in which there is a nice jigsaw puzzle of mutually consistent rights. I myself, as you may know, am a great fan of Sir Isaiah Berlin, and one of his teachings was that rights are sometimes incompatible and inconsistent. Freedom of association as an absolute might be incompatible and inconsistent with certain other rights, and I am just struggling to understand why it is that, in your view, freedom of association, important though it is, excludes all other rights that might come into competition with it—unless you think that is impossible, but I do not know how you can say that.
Mr Wilson : I will let my colleague Chris Berg make a comment on that at the moment, but I am not—
CHAIR: This is going to be the last section we go to.
Mr Wilson : Okay. I am not saying that; I am saying that, when there is a case of two human rights up against each other, there is an appropriate accommodation between the two. But what I am critiquing here is that we are not talking about one human right trumping another; we are talking often about concepts of social or civil rights, which are different from human rights. That is the point I am making. But I do think it is concerning if we are now seeing even the opposition and the Liberal Party advocating for a position that is not in favour of freedom of association.
Mr Berg : Senator, I would be happy to discuss the philosophy of it.
Senator BRANDIS: We do not have the time to do that now. But, Mr Wilson, all anti-discrimination law in a sense is a limitation on an absolutist position on freedom of association in service of other rights.
Mr Wilson : Objectives or rights.
Senator BRANDIS: I would say 'rights'.
Senator BOYCE: Chair, am I able to ask a question or have we run out of time?
CHAIR: I am very happy, as long as it does not get hijacked by somebody.
Senator BOYCE: Yes. I want to get back to the bill, if I could, and ask Free TV and the joint media witnesses a question. You spoke about the chilling effect that this legislation would have on your ability to publish or broadcast any material. Are you able to give us some examples of this, please?
Mr Coleman : I can give you a recent example of that where there was a hearing at VCAT in Melbourne over a cartoon published in the Australian Financial Review. It was a cartoon of Italy, but Italy was changed and it was called 'Berlusconia'. It was a satirical cartoon, and the point of the satire was to express an opinion about the effect that Berlusconi's personal and political conduct had had on the reputation of Italy. It was a very witty cartoon, but the fact is that undoubtedly it did offend a number of Italian-Australians. But, in my view, it then gave rise to, in part, a political campaign by some card-carrying members of Mr Berlusconi's party in Australia against the Australian Financial Review, conducted through the Italian media in Australia. We ended up before the tribunal in Victoria. The matter went to a hearing. During the first day, we resolved to mediate it and we did achieve a resolution, which had not been possible prior to the hearing. But that was on the existing legislation, and that gave rise to this action, which I think was very unfortunate. I anticipate that, under the proposed legislation, such actions will be so much easier to bring.
Senator BOYCE: Thank you. Do you have any comment, Ms Saab or Ms Flynn?
Ms Flynn : I think we would just point to the example that is in the joint submission, which is the claim filed against SBS in the Human Rights Commission. That concerns the broadcast of a documentary entitled As it happened: the Armenian genocide. SBS was able to successfully defend itself by demonstrating that a wealth of academic and historical experts agree with the historical conclusions. SBS also emphasised the documentary focused on events which happened nearly a century ago. For both these reasons, they were able to establish that, by an objective and reasonable standard, the documentary should not have been considered offensive to contemporary Turkish people. But we all agree that, if section 19 of the bill had been in force when this complaint was made, the outcome might have been dramatically different.
Senator BOYCE: Thank you for those examples, but you are suggesting a more far-reaching effect from this legislation, not just in areas that would be currently controversial but in areas that are not currently controversial?
Ms Schubert : Referencing the inconsistencies throughout the bill and the issues that we raised earlier about the subjectivity and those sorts of things, the effect could well be far-reaching and could include things that you read in the newspaper today, things that are broadcast tonight, things that you hear on radio—everything from same-sex marriage through to soccer riots through to women in combat; you could go through a very long list of things. They are all very, very real threats under this exposure draft of the bill.
CHAIR: We are going to have to finish, because we are nearly 20 minutes over time here. Senator Ryan?
Senator RYAN: I have a very brief question. Can I ask all the participants here: following the Bolt case, have any of you or your members or your organisations changed your internal processes with respect to compliance with the law as you now see it following the Federal Court case in Bolt v Eatock?
Mr Coleman : I am aware of the judgement and have read the judgement. I took it on board, but I would not say that we have changed our procedures in our approach. It is just another judgement that you build into your memory bank when you are assessing articles.
Senator RYAN: Does it mean you have changed the filter by which you look at copy or news stories?
Mr Coleman : I am sorry; I did not—
Senator RYAN: Has it informed and changed the filter that you put over new stories before publication? You said you take it into account.
Mr Coleman : Yes. I think so. It is just something else that you are aware of, where an article came unstuck in a particular tribunal, and you keep that in mind when you are assessing articles before they are published.
Senator RYAN: Do any of the other people on teleconference wish to provide a comment?
Ms Flynn : No. I think we would all agree with that. We already have very specific requirements under our code, and they would be the things that people would take into account. But obviously, in the same way as Mr Coleman from Fairfax has just mentioned, this would be another judgement that an individual broadcaster would have to feed into their—
Senator RYAN: To those at the table: the IPA publishes a great deal; it publishes prominently and gets some attention and you have probably got your opponents in the public sphere; do you look at what you publish through a different prism following the Bolt case?
Mr Berg : In our perspective, we would be more than covered by the constitutional right of political communication. Very rarely do we publish material that would come close to the domain of 18C. But, having said that, we do attach occasionally publish articles on issues like the intervention or Aboriginal policy and so forth, and, when we do, we have to take into account the Racial Discrimination Act and the new interpretation of what we consider 18C to be after the Bolt case.
CHAIR: We have severely gone over time and run out of time. Ms Saab and Ms Flynn, thank you for your attendance and your submission today. Ms Schubert and Mr Coleman, thank you as well. And I also thank the three gentlemen here. Thanks very much.