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Parliamentary Joint Committee on Human Rights
01/02/2017
Freedom of speech in Australia

ALLEN, Dr Dominique, Member, Discrimination Law Experts Group

APPLEBY, Associate Professor Gabrielle, Private capacity

EASTMAN, Ms Katherine, SC, Private capacity

McKINNON, Ms Gemma, Private capacity

O'CONNELL, Dr Karen, Member, Discrimination Law Experts Group

RICE, Professor Simon, Member, Discrimination Law Experts Group

Committee met at 09:00

CHAIR ( Mr Goodenough ): 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 Australian parliament's 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 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 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 ground upon which the objection is taken and the committee will consider whether it will insist on an answer having regard to the ground which is claimed. If the committee determines to insist on an answer the witness may request that the answer be given in camera. Such a request may also of course be made at any other time. Welcome. Do you have any comments to make on the capacity in which you appear?

Prof. Rice : I am a professor of law at the Australian National University.

Dr O'Connell : I am a senior lecturer at the University of Technology Sydney.

Dr Allen : I am a senior lecturer at Monash University.

Ms Eastman : I prepared my submission with Mr Glover, who sends his apologies.

Prof. Appleby : I am an associate professor at the University of New South Wales.

Ms McKinnon : I am an associate lecturer at the University of New South Wales.

CHAIR: I invite you to make brief opening statements, and then members of the committee may ask questions. Could you please limit the length of your statements in the interests of time, thank you.

Prof. Rice : On behalf of the Discrimination Law Experts Group, I will make a brief opening statement. In doing so, I speak on behalf of those whose names are appended to our submission, but there is an omission—Professor Margaret Thornton should also be added to that. I say that for the record and apologise to her for that omission.

I will summarise our position for members of the committee. In essence, we advocate a conservative position. No change needs to be made to 18C and very little change, if any, needs to be made to the Australian Human Rights Commission's complaints procedures. I will briefly summarise why. We say that 18C and 18D and the related case law operate together to limit free speech only insomuch as is necessary to protect against racially discriminatory speech. At the same time—and this is an important point of policy—this balance protects the right to free speech of people who would otherwise be silenced by offensive language. So it operates notoriously to limit free speech to an extent, but it needs to be kept in mind the work that it does to enable free speech among those who would otherwise be oppressed.

On the Human Rights Commission complaint procedures, we make an overall point that the procedures operate for all complaints under the federal discrimination laws. Any discussion of a change to the procedures must take account of the way the procedure works for each of the complaints that can be made under four separate discrimination acts.

Specifically, we say these six things about the Australian Human Rights Commission Act. Firstly, the president has very extensive powers to terminate a complaint, and no wider grounds are reasonably possible. We became aware only last night, Mr Leeser, of your submission and we respectfully disagree with your analysis of 46PH and with the feasibility of the amendments you propose.

The second point is that the president, we say, must maintain a discretion to terminate. In dealing with a wide variety of complaints in many circumstances, current and unanticipated, the president ought not to have his or her conduct compelled by statute, which is proposed.

Thirdly, we say that the commission's delays would be addressed by a reinstatement of the funds that have been cut from its budget over the years. Fourthly, the commission has a duty to promote human rights that are protected by anti-discrimination legislation. That duty is enshrined in the act and there is no need to make any changes to that function. Fifthly, unmeritorious claims in all types of matters are common occurrences in courts. The Federal Court is already armed with sufficient procedural tools to deal with unmeritorious claims and no changes need to be made.

Finally, whether and how a respondent should be notified of a complaint is, on our reflection, a very complex issue, having regard to the processes of the commission and the wide variety of complaints they receive. We would ask the committee to invite us to make a further written submission on some of the complex drafting that might surround notification of respondents. In short, there are circumstances where a respondent ought not be notified of a complaint, thereby avoiding cost and distress to the respondent when a complaint can be and is terminated at an early stage. So it is not a straightforward proposition, but it is one that we think we can navigate with a bit of time and reflection. That, in summary, is our submission.

Mr PERRETT: Thank you for taking the time to make a submission. The Gilbert + Tobin submission says preserving section 18C in a robust form not only provides important protections to racial minorities—and I note your comment about it facilitating their freedom of speech, which might otherwise be silenced—but you also say it is 'a matter of international legal obligation'. Could you please explain the importance of section 18C to our international legal obligations? I will throw that open to all of you, if you like.

Prof. Rice : Very briefly, we are a signatory to both the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination. Both of those carry with them an obligation on us to ensure that we act to prevent discrimination, and discrimination in both those acts is broadly defined to include race hate speech. I will leave it as simply as that. We have an international obligation under those conventions.

Mr PERRETT: Does anyone need to add to that, or is it as simple as that?

Senator McKIM: Sorry, Mr Perrett. Could I interrupt briefly? Chair, the panellists here have submitted a range of submissions and I wonder if any others would like to make an opening statement before we go into questions. We are dealing with a few submissions, so they are not always of the same view on every matter. I just wondered if you right throw it open for an opening statement from anyone else who wishes to make one.

CHAIR: Yes, certainly. That is valid point.

Mr PERRETT: I thought Professor Rice was speaking for all of you.

Prof. Rice : No. I am here with the two colleagues to my left, but then we are in three different groups.

Mr PERRETT: I beg your pardon. I am always in favour of collective organisations.

CHAIR: Ms Eastman, would you like to make an opening statement?

Ms Eastman : Yes. I prepared a submission with Mr Glover. I do not want to repeat the matters set out in the submission, but I thought I might say something briefly from the perspective of a practitioner who works with these laws on a fairly regular basis. A long time ago I was also a senior legal officer at the Australian Human Rights Commission, before it had its current name, and my role as a senior legal officer was to work with the commission at a time when the complaint-handling function was slightly different to the way in which the complaints are presently being dealt with. Back in those days, and it was really pre the High Court's decision in Brandy, the Human Rights Commission dealt with complaints through each of the specific subject matter commissioners. So they had the responsibility to investigate and conciliate complaints and then if the complaints could not be resolved or the commissioners formed a view that the complaint should be brought to an end because it was lacking in substance or the like, there was a procedure within the commission and that was exercised by the then president and the senior legal officers of the commission to review the decisions to decline complaints. But we also had a function of hearing and determining the complaints. That process ultimately was unconstitutional and the result now is a split between a role of the commission and the role of the courts in dealing with complaints of this kind. It is important to understand the complaint-handling function not only limited to the commission but also the role of the courts.

At the present time, it takes nothing to make a complaint to the commission. So step 1 is all that is required: a written allegation of unlawful discrimination. That goes to the commission. All the commission really does at that stage is to 'determine'—and I use that word loosely—whether the person has standing to make a complaint. But the next step is the complaint is then referred to the president of the commission and she has the role of investigating and attempting to conciliate the complaint. She does not have any function in terms of determining the merits of the complaint, but she can form a view, for example, that a complaint may be lacking in substance or trivial and make a decision to terminate the complaint.

Once that complaint is terminated, that is the end of the commission's role. But the important issue then becomes what happens and it becomes entirely a matter for a complainant, and he/she can decide to commence a proceeding in the Federal Court or the Federal Circuit Court. The Federal Court is not bound by anything that the commission has done. The Federal Court does not have to take much notice of the grounds on which a complaint has been terminated. Often, I think, the difficulties coming out of some of the commentary around the complaint-handling function is not so much the frustration at the commission level but the fact that you have to face a complaint in the court, and the standard that the court has to dismiss a complaint is very high. The court is not going to dismiss a complaint simply because it is lacking in substance. The court has to be satisfied that the complaint is doomed to fail.

In cases where discrimination or vilification rely very much on people's perceptions of events but also the need to give evidence about what might have actually happened in an event, a court will be very slow to dismiss a complaint until everybody has had the opportunity to be heard. So I differ from my learned colleagues to the right of me because I do think that the Federal Court probably needs to have some mechanism to filter out unmeritorious complaints rather than in putting the onus on a respondent to have to initiate a strikeout application.

In our submission, we have highlighted a regime that now operates in New South Wales where if, for example, the president of the Anti-Discrimination Board—and here the same could be done with the president of the commission—decides to terminate a complaint as lacking in substance, then the person who wants to commence a proceeding in the court would have to have the court's leave to proceed. That would provide a degree of fairness both to complainants and to respondents.

The main point that I wanted to highlight is a technical point but it comes from 20-plus years experience in representing a wide range of people in the courts that there could be a stronger process for dealing with the management of complaints when they come to the court phase. We have picked up the observations you made, Mr Leeser, which were in a speech to the association and I have dealt with that in the submission in responding to some of your concerns.

Mr LEESER: I will come back to that later.

CHAIR: Further opening statements?

Ms McKinnon : Australia has obligations to protect vulnerable racial minority groups against hate speech under international law and as part of our broader commitment as a liberal democratic society that values and recognises multiculturalism and diversity. We also have a commitment to provide appropriate protections for free and fair speech on race related issues.

Our primary submission is that the current protection in 18C strikes an appropriate balance between these two commitments. We make this statement based on the understanding of the statutory context of section 18C and particularly the exemptions in section 18D for reporting, commentary and other forms of expression; the judicial interpretation of both of these sections; and the powers already bestowed on the Australian Human Rights Commission in section 46PH of the Australian Human Rights Commission Act.

We also claim, in our submission, that section 18C is unlikely to be in breach of the constitutional protection of political speech, because the provisions represent a proportionate response to the threat that racial hate speech poses to Australia's social commitment to diversity. However, we note that the seemingly widespread misperception of the scope of the protections afforded by section 18C and the ongoing public and political controversy that this has caused are having a detrimental effect and are undermining the capacity of the provision to achieve its objectives. The exaggerated effect of section 18C is undermining the capacity of the provisions to foster a sense of wider community belonging amongst vulnerable racial groups. It could also potentially have a chilling effect on legitimate political speech.

Prof. Appleby : It is based on these concerns that in our submission we have made a number of proposals for amendments to the Racial Discrimination Act and the Australian Human Rights Commission Act, should it be deemed necessary to clarify the intention and scope of the provisions. We do want to emphasise that any such reform needs to be accompanied by both clear political and public messaging, that it does not reflect a shift in community values and that the amendments are accompanied by a continued rejection of racial hate speech in our society and an ongoing public commitment to diversity and multiculturalism. In the submission itself, we make three proposals for reform and the details are in the submission, but I will briefly outline them.

The first is a formalistic reform. It is intended to increase public awareness of the existence of the exemptions, and the suggested reform is that sections 18C and 18D be brought together into the one provision.

The second proposed amendment is a recommendation that the words 'offend and insult' in section 18C be amended in one of two ways, which we have put forward, either by replacing these words with the words 'seriously offend or insult' or to replace these words with the words 'demean and degrade or promote hatred'. We say in the submission and we explain that these amendments have been crafted so that the face of the provision better reflects judicial interpretation of the current language and other international and domestic provisions prohibiting racial hate speech.

Finally, we recommend that some clarification could be added to the existing powers of the President of the Australian Human Rights Commission to dismiss complaints when satisfied they do not amount to unlawful discrimination.

These recommendations are made for a slightly different purpose. They are made to reduce the impact on those who are the subject of clearly unsubstantiated claims. Our suggested amendments would ensure that the power is exercised by reference to the scope of the exemptions to section 18C and section 18D and to propose an expedited process for having the President of the Australian Human Rights Commission consider the exercise of the discretion to terminate a complaint. Thank you for the opportunity to make the opening statement.

Mr PERRETT: I was asking about section 18C reflecting our international legal obligations. We got a great answer from Professor Rice saying, 'Yes, it did,' if I could paraphrase it. I was wondering if anyone else wanted to add to that answer.

Ms Eastman : I think I agreed with Professor Rice

Prof. Appleby : For the record, we also agreed with the response from Professor Rice.

Mr PERRETT: In some of your submissions, and certainly in your opening statements, there is an attempt to codify section 18C to reflect the judicial interpretation. Would anyone like to comment on whether you think that would change the protections that are currently in section 18C; and was that anyone's intent?

Dr O'Connell : Our submission does not address that directly, but we would have a concern with changing the language, where that language did not need changing. If it is to address public misunderstanding, it is better to address that misunderstanding through education rather than law reform that may not be warranted.

Mr PERRETT: So your position is that a public education campaign to give the judicial interpretations of the words that are in the legislation would achieve much the same as Associate Professor Gabrielle Appleby has outlined?

Dr O'Connell : Yes, because if you are adding words to a law, you cannot predict necessarily whether that will make a difference to the judicial interpretation of that section.

Ms Eastman : I agree with that approach. As a practitioner I think it is very—

Mr PERRETT: Sorry, which approach?

Ms Eastman : I agree with both approaches. You see, I am taking my usual lawyer's middle ground position: I act for all sides!

Mr PERRETT: You really are in the middle, aren't you!

Ms Eastman : I agree with this approach, that there probably is not a need for change at the present point in time if people understand the provisions. I agree with this approach to the extent that there is misunderstanding as to how the law operates. As a legal practitioner advising clients, I always think it is important that the law be stated clearly, so that ordinary people using the law understand their respective rights and obligations. Justice Lockhart once said, 'Discrimination law', of which this is a part, 'should not be the domain of experts, and there should not be a need for experts in this area of the law. The law should be clear and simple.'

I am an expert in the area, but I do agree that the law should be clear and simple, so if clarification to reflect the way the courts are interpreting the law would assist, then I would support that approach. But I am not sure it would need it if there were sufficient education about how these provisions are intended to operate and the impact they have on ordinary people.

Prof. Rice : And, may I say—how they have operated without remark for 15 years, until the recent excitement in the last couple of years.

Prof. Appleby : I would like to respond in relation to our particular submission in response to the comments from the table, which I am very sympathetic to. In our submission, we provide two options for reform. In the first option for reform we have tried to capture the judicial interpretation of the scope of section 18C, and we would argue that it is unlikely to change the scope if that reform were adopted. However, we have also put forward alternative language that does not exactly reflect the scope of the current judicial interpretation, but rather reflects the scope of international protections against racial hate speech and domestic protections for racial hate speech. That is a slightly narrower scope than it is currently on the face of section 18C, but whether it will be different from the judicial interpretation is something that is not known. Because we have put forward two options for reform, the question you ask actually depends on which option you would take.

In our submission, we also make the point that we agree that in an ideal world, a public education campaign about the traditionally interpreted scope of section 18C would be the best option. We have seen a concerted campaign by many experts and politicians regarding the correct scope of section 18C, yet seemingly widespread misconceptions about its scope continue to persist.

Mr PERRETT: The misunderstandings of section 18C seem to play out regularly.

Prof. Appleby : And I think this is exacerbated, because if you go back to the language of section 18C, it simply says 'insult or offend'. In order to understand the true scope, you would have to go either to the commentary and believe the experts or to the cases themselves. There is this rule of law ideal that the law should really reflect on its face what it is in its substance.

Mr PERRETT: Would any of you have any concerns if, despite the best intentions of educating and informing and stopping this misunderstanding of section 18C, any change to section 18C or 18D might send the wrong message about acceptable behaviour toward racial minorities?

Prof. Rice : That is what impels our submission.

Prof. Appleby : And we share those concerns, but we are also concerned that the current state of the public debate is such that section 18C is not being able to perform the role that it is intended to perform in society and that there needs to be some way forward from this impasse.

Senator PATERSON: Professor Rice, your submission is not unique in that it opposes change to 18C. There have been many people who have that point of view, but it is slightly unique in that it is also generally opposed to change to the Human Rights Commission. There have been many other submissions that whilst opposed to the change of 18C are supportive to changes to the Human Rights Commission process. I was particularly interested in your comment that you do not believe that the commission needs any wider powers to terminate cases. Would you expand on why you believe that?

Prof. Rice : Very briefly, and then I will hand to my colleague, Dr O'Connell, who was herself an officer of the commission. The terms of the section—and you would have heard from the commission itself—are in our submission very broad. In fact, we have said we cannot think that they could be reasonably broader, which is where we differ from Mr Leeser. The commission has powers to dispose of the matter at any stage on a very wide range of criteria, and perhaps for appearances some tinkering might be done so that one might say that one has done something, but in substance in our submission it works very well, but Dr O'Connell has done it.

Dr O'Connell : I largely agree with what Professor Rice has said. If you look at the language of the legislation and specifically section 46PH it is very broad. It is hard to think of anything that you could add there that would assist with the process. I do think sometimes there is a bit of a misunderstanding in terms of what the president needs to do. She needs to attempt to conciliate, not to make a legal determination, and in order to conciliate you have to understand the full circumstances for the complainant and the respondent. Obviously there will be complaints where it is immediately obvious that it does not fall within the law, but in order to have that fairness to respondents as well as complainants there needs to be some consideration rather than just having a very early rejection of a complaint.

Senator PATERSON: I will let Mr Leeser ask questions about his own proposal, but one of the reasons why many people suggested that the commission should have more power and, in some people's view, an obligation to terminate cases that are lacking in merit is because of the Queensland University of Technology case, in which a Federal Circuit Court judge certainly took the view that it did not have a great deal of merit, but Gillian Triggs herself has said that she did think it had 'a level of substance', I think were her words. So you do not think that the QUT case is evidence of a case that could have been resolved more quickly and more harmoniously if the commission had terminated it earlier?

Dr O'Connell : Yes, but in my view, and hopefully in the view of my colleagues, that complaint could have been terminated more quickly if there were the resources to consider it more quickly. The president of the Australian Human Rights Commission is not a judge, and it would concern me if—

Prof. Rice : By which. I mean, constitutionally.

Dr O'Connell : Yes. That is what I mean, of course. Thank you, Professor Rice. And her role is to conciliate, so her or his position is not one where a full determination is appropriate. I think that is the role of the court. It is not the role of the Australian Human Rights Commission. They need to determine if a complaint can be conciliated within the broad terms of the legislation.

Prof. Rice : If I can just evoke the picture that Ms Eastman painted for you and disentangle some of the issues that, with respect, you have raised. There are different procedures, so the litigants in the QUT Federal Court case chose to be litigants after the commission proceedings finished. Whatever happened at the commission, they were free to commence—

Senator PATERSON: In what sense did they choose to be litigants?

Prof. Rice : The plaintiffs chose to be litigants.

Senator PATERSON: That is exactly it.

Prof. Rice : That is what I am saying.

Senator PATERSON: The respondents did not choose.

Prof. Rice : No, they did not. As is the case with every single case that is happening across the road now in every court, people choose to go to court.

Senator PATERSON: I understand the point of view. The argument is, though: had the commission terminated the complaint, that may have discouraged the applicants from becoming litigants. They have may have been discouraged by that and thought, 'Actually, this is not going anywhere.' That is what has been suggested.

Prof. Rice : Two quick reflections on the QUT case. One is that it represents what happens in cases. That is why we have the system that allows people, with merit or not, to invoke the power of the courts. So it was unremarkable in that sense. It is, however, representative of something anomalous in the commission's procedure.

As you know from submissions, fewer than two per cent of vilification cases go to court. The QUT case does not represent the way things might go wrong in the commission processes with all the other complaints. It really does distort an understanding of how the commission exercises its powers.

Senator PATERSON: So if this committee forms the view that we did not like what happened in the QUT case and that we wanted to seek to prevent cases like that from proceeding in the future, what would your advice be as to how we could achieve that?

Prof. Rice : In our view, you so rarely get a QUT case that to hang public policy on it would be, with respect, a huge mistake because it does not represent a problem that needs to be addressed.

Senator PATERSON: I think it was a problem for the students!

Prof. Rice : As it is a problem for every respondent to a case, that they ultimately win and withstand. As defendants in commercial tax, environmental and sale-of-goods cases, when you run a case—

Senator PATERSON: These students were not running a business in a risky environmental area, they were expressing their views on Facebook at university.

Prof. Rice : No. People will lose a case, and that is the price we pay for having an accessible legal system. The QUT case, as I said, in some way represents what happens in court.

Dr O'Connell : Yes, I completely agree with Professor Rice. I think it is dangerous to look at one specific case, where there may be a natural feeling of sympathy, and then try to amend law motivated by that case. You can have all the sympathy in the world for people in individual cases, but the reason we support a rule of law is so that people can access legal remedies when that is appropriate.

Senator PATERSON: It is quite a utilitarian view of it, though; that as long as we get it right most of the time, if there is an instance where it is not quite right that is just the price we have to pay.

Prof. Rice : No—and if it were possible to refine the legislation to minimise that we certainly would. But in our submission it is not—

Senator PATERSON: You do not think there is any way we could refine it to protect the bulk of the cases that you think do have merit but eliminate cases like this, which do not have merit?

Prof. Rice : Not without treating, for some unspecified reason, racial vilification cases as warranting some special and harsher treatment—categorising them differently. We do not accept that there is any reason for treating them differently from any other statutory right.

Senator PATERSON: Fair enough. Just briefly, Ms Eastman: if I understand you correctly, you suggested a greater power for the Federal Court to dismiss cases. Could you just expand briefly on how that would work?

Ms Eastman : I will use the questions that you have just asked. If, for example, the Human Rights Commission had terminated, or the president had terminated, the complaint immediately when the complaint had been received then those respondents may never have known that a complaint had been made. They would then know about it for the first time when they were served with legal process, and the allegations put in an application to the court might be very slim. Unless those students, in that case, or a respondent says, 'I don't think there's a case against me,' the onus is then on those respondents to have to persuade the court that the matter should be summarily dismissed. If the respondents are unsuccessful in achieving a dismissal then the matter will run to trial. So the parties then have to put on their evidence, incur their costs and attend a hearing, and that is all done in a very public way.

My suggestion is that if the commission takes the time to attempt a conciliation, the respective parties will have a clearer understanding of the strengths and weaknesses of their own cases before the proceedings commence—and respondents will not hear about it for the first time at the court application. If the president forms a view that the complaint is lacking in substance, she could terminate on that ground and the court could then have regard to the reasons why she terminated. In that case, an applicant could then seek leave from the court to be able to proceed. That is what happens in New South Wales.

If the president terminates the complaint because the matter cannot be conciliated, and expresses no view whatsoever on the substance of the complaint, then it is business as usual. But the court needs some filtering process to streamline complaints that would otherwise continue, because the test that is presently in the court on summary dismissal is a very difficult test and it requires the respondents to initiate that application. So my suggestion is that the onus rests on the person wanting to bring the proceeding to demonstrate that they should be allowed to proceed.

Senator PATERSON: Thank you. I did have questions for other witnesses but, given time, I will put them—

Mr BROADBENT: I have one on exactly the same subject. It was reported in The Australian today—and I am not pushing The Australian's point of view on this whole issue—that the respondents did not know for a long time that there was an action being taken against them. And it was being dealt with by the body that happened to be a university at the time. How is it that someone could have a complaint against me, or anybody else, and me not know about it for a very long time?

Ms Eastman : I do not know the details of that particular complaint, but, in talking from general experience, it is possible for a couple of reasons. Firstly, a complaint may come into the commission and the commission needs time to clarify exactly who the complaint is being made about. Often complaints are just against a trading name or is a fairly diffuse type of complaint that does not identify a respondent. So the commission needs to take time to identify who the respondent is. Secondly, sometimes, in engaging with a complainant and taking more information, the complainant might say, 'I don't want to take it any further,' and withdraw their complaint at that time. In those circumstances there is no reason for a respondent to ever know that a complaint had been made about them. The process—and one of the great benefits of the commission—is it is all confidential. So no-one would ever need to know about that. But in some cases it is important for respondents to know about the complaints early because they need to protect their rights as well. They need to ensure that they have kept their relevant evidence and that they have kept track of the things that they need to keep track of to defend themselves as the matter goes on.

Mr PERRETT: Especially if their account has been hacked.

Ms Eastman : That is right. In this era of social media and fast-moving change respondents also need to have the opportunity to protect their rights and interests as well. That is very important. It is ultimately a question for the skill and the expertise of the investigators and conciliators at the Human Rights Commission to make a decision as to when they will notify a respondent. But in some cases the complaints are amended well into the process, and new respondents might be added. So there will be a whole range of practical reasons why a respondent might not know immediately. And, in some cases, that is a very good thing.

Dr Allen : I want to add something to that which we have not mentioned. This process is applying to all complaints being brought before the commission, and the vast majority of those are employment complaints. So, while this process is being undergone and the complaints are being investigated, it might be necessary to maintain that confidentiality because the person bringing the complaint might still be in the workplace and needs to be protected in some way while they are formulating whether they have a complaint or not.

Mr LEESER: There is no reason why it has to apply to all the complaints brought before the commission. In my proposal, for instance, you could have a slightly different process just applying to part 2A complaints. I know you would say there is no public controversy here. I would strongly disagree with that. We have this inquiry because there is a public controversy and there is a lack of public confidence in both the operation of the section and the administration of the commission in relation to this. We need to consider a different process, potentially, for these sorts of complaints.

Senator McKIM: Ms Eastman, I would just like to address your opening comments in regards to your suggestion that amendments be made so the Federal Court has a greater capacity to dismiss unmeritorious complaints. I am sorry if I have paraphrased that inaccurately. Firstly, I just wanted to clarify: are you only suggesting that that change be made in relation to RDA?

Ms Eastman : No, across the board.

Senator McKIM: So you would argue that, on every matter that comes to the Federal Court, that amendment should be made.

Ms Eastman : No. What I am saying is: if the president terminates a complaint on the basis that it is trivial, misconceived or lacking in substance, or not unlawful—if those are the grounds on which the complaint is terminated then the complainant would need the court's leave to proceed. If she terminated because it could not be conciliated, no, I am not suggesting that be the case—but just an added filter for particular types of cases.

Senator McKIM: Thank you. I phrased my question poorly, so I will rephrase it. Are you suggesting that that change only apply to matters that come through the Human Rights Commission?

Ms Eastman : Yes—any complaint to the Human Rights Commission, but not limited to racial discrimination. For fairness, I think it has to be across the board.

Senator McKIM: I understand that. In that case, how would you respond to Professor Rice's and Dr O'Connell's view that they do not think there is an argument that the Federal Court has different capacity in different areas of law?

Ms Eastman : Mine comes from a practical perspective. I often appear for respondents in matters of that kind, and it is the respondent who has to incur the cost of taking the step to seek a strike out application. These can be very costly matters, and if a respondent is ultimately successful then they are not always able to recover all of their costs. There can be a lot of damage to people's reputations by the public nature of a hearing in the Federal Court, even with respect to a summary dismissal application, and it also takes a very long time. At the moment there are delays in the Federal Circuit Court. For example, I have one matter at the moment where the judge has reserved for 14 months on an interlocutory strike out application, and the clients I represent are not wealthy people. They are nervous and anxious as to what is going to happen to the claim. Likewise, on the other side, the complainant is probably feeling the same. If there was a streamlined approach where people could know where they stood in terms of the court process and that their costs would be contained, I would strongly recommend that from both the complainant's and respondent's perspective.

Senator McKIM: Thank you. That is clear. I am not trying to start an argument here between the panel, but could I give Professor Rice and Dr O'Connell an opportunity, perhaps, to respond to that.

Prof. Rice : I will just volunteer a consideration for the committee if it looks at this option in more detail, and that is the often unintended consequences of law reform. I spent some years as a judicial member of the New South Wales tribunal where this mechanism operates, although it did not come in until towards the end of my term. I sat on those matters and I sat on appeals from those matters, so I decided them. Can I say that an unintended consequence of the reform was that it operates as an opportunity for the inquiry body, in this case the New South Wales anti-discrimination commission but in your circumstance a commission, to give a very light touch to its complaints and to allow the matter to move on to the tribunal, which then makes the decision that the commission, or the board, itself could have made. There was a shifting of the work because now the readily accessible means of dealing with the merits of the matter are available through the judicial office. An underresourced board was much more readily sending its files down the road to be dealt with, so we were often allowing matters to proceed because we found that they had merit that had not been properly identified in an investigation that was not done by an underresourced board. So it is part of a larger network of levers and buttons in the system, rather than a simple fix.

Senator McKIM: Thank you.

Mr LEESER: I would just like to say that I broadly support Professor Appleby's and Ms McKinnon's submissions here both in terms of what they have suggested for process clarification and also the codification, although my preference is as close to the language of the judgement as possible to avoid some of the unidentified consequences. I wondered if I might ask Ms Eastman and Professor Appleby a little bit about the precourt procedures of the commission and to what extent there might be some scope for the alteration of those, perhaps just to explain very briefly what I was trying to do with the part-time judicial officer determining matters.

My view was not that there be an additional person above the commission or below the commission but indeed that the part-time judicial member of the commission replace the president for the purpose of dealing with the matters that the act be amended. From time to time presidents of the commission have been judges or retired judges. There also have been periods, as is now the case, where they have not been. I thought that that might help in making some of the commission's terminations more appeal proof—that that was the purpose of that. To what extent is the president able, prior to making a decision about a termination on a matter, to assess both arguments from the complainant and also the respondent in a quick manner and able to make a determination as to whether the matter has any reasonable prospects of success?

Ms Eastman : It will depend on the particular circumstances, but what may happen is that the information that comes in the originating complaint is very thin on the ground, so there needs to be some clarification of that. Lawyers often call it 'asking for further particulars', so when, where and who. The commission might then ask the respondent to respond to those allegations and say: 'What's your side of the story? What do you want to say about that? Is there information that we need to consider?'

So the way in which the commission deals with the complaint is to try to get both sides of the story, which starts to look at the merits of the case, identify whether it is a very subjective response to the issues or whether there are some objective factors that should be taken into account. The commission uses that information in the process of conciliation to try to help the parties reach some sort of resolution—in effect, the usual testing that a mediator or said it does, which is to try to help the parties identify their respective strengths and weaknesses.

The commission has a firm view that the parties themselves should be resolving their matters, rather than the commission giving some advice along the way. If the matters cannot be conciliated, the process requires the president to take into account the recommendations and all of the work prepared by the conciliators so that the merits can be considered at that point, but the merits are only considered for the president to identify under what grounds she might terminate the complaint.

Mr LEESER: Obviously the president is considering the substance of the matters in some of the current grounds under which she can terminate matters.

Ms Eastman : Yes.

Mr LEESER: Would there be a problem with adding an additional ground of 'no reasonable prospect of success' and, if there is a problem, what problem would it be?

Ms Eastman : You could, but what you would need to do is say, 'What does "no reasonable prospect of success" mean?' because that is a phrase and language is that is much more familiar with a court process and it is the type of language that the Federal Court judges are looking at on a summary dismissal application. The matter that you would need to take into account there is: do you have sufficient material to form a view about the prospects of success from an evidentiary point of view? A very fundamental difference between the commission process and the court process is that the commission is not working on the rules of evidence—you can say whatever you like in whatever form. The court, though, will only make a determination by reference to evidence that is admissible and that complies with the Evidence Act, so an assessment of prospects of success against the Evidence Act is a very different thing from the president looking at the overall case and saying, 'Is this a case that might be lacking in substance, trivial and not unlawful?' It is an entirely different exercise, and my concern would be importing a test that applies where rules of evidence apply into a process which has nothing to do with the rules of evidence or court documents being prepared in a particular formal way that the court requires.

Mr LEESER: If the complainant were to commence their complaint in the Federal Court or the Federal Circuit Court and then the court were to remit the matter for conciliation as a process, would change the nature of the way complaints were brought? Would it require complaints to be more specific? Would it perhaps help us match the conciliation process more clearly with the court process?

Ms Eastman : That already happens now. The Federal Court and the Federal Circuit Court have exceptionally good registrars who are exceptionally good mediators, and it is very common for a Federal Court judge to refer a matter to conciliation with the court registrars. That process often achieves some clarity.

Mr LEESER: But am I wrong in saying that if you commence a proceeding in the Federal Circuit Court or the Federal Court, particularly if you are a solicitor, you would need to certify that the matter had reasonable prospects of success?

Ms Eastman : Yes, you would.

Mr LEESER: Would not that be a better process in terms of perhaps clarifying issues for the parties? If we are to get all matters, for instance, to commence in the Federal Court or the Federal Circuit Court, would that not provide greater clarity and would that not see the commission's actions be more aligned with the outcomes that could be achieved in court?

Ms Eastman : From a practical perspective and respectfully, no, because what it would do would be to move down to the commission process a very legalistic process where the burden on complainants and respondents to have legal representation to craft their claims from a very legal perspective would be very costly for people working with the commission process, and there is no guarantee that a Federal Court judge or Federal Circuit Court judge would take the advice, the suggestion or the recommendation of the president. They would not be bound by that in any way. It would end up being slower and far more costly and it would make it a very technical process which really should be for a court and not for the commission.

Ms MADELEINE KING: Thank you all for coming in today and thank you for your submissions. I would like to point out that I respectfully disagree with my colleague, Mr Leeser; I do not know if there is a lack of public confidence in the Racial Discrimination Act and 18C. I think there might be in some circles, and certainly the evidence before this committee is that people really value it. On that basis I want to talk about the conciliation process that the commission itself goes through. We have heard evidence from both the commission and other organisations that are supportive of it that it is quite successful in resolving complaints made to it. Across thousands of complaints, across all of the discrimination areas, so to speak, it manages an average of 3.8 months to resolve the vast majority of the cases that are before the commission. My understanding of the conciliation process, which is confidential and private, is there have been calls and submissions made to this committee that it should be a more open process from the beginning of complaints and, as I understand it, through the conciliation process. I would like your comments on how opening up that kind of process might affect the success of the commission resolving such complaints.

Dr O'Connell : That is not something that we considered in the submission.

Ms MADELEINE KING: No, I realise that. First thoughts, I suppose.

Dr O'Connell : Yes. The confidentiality of the conciliation process has enormous benefits. There are some concerns that we have as researchers because often it can be difficult to understand what is actually happening in that process and, therefore, it is difficult to see trends and see what is actually happening to people who are bringing complaints or responding to complaints. That aside, the confidentiality of that process does mean that people do not have to suffer the sorts of responses that people are clearly concerned about in the public, which includes having claims that are not yet substantiated, or maybe conciliated, aired in public. On balance, the confidentiality of that process has more benefits than drawbacks.

Dr Allen : I would like to add to that. I have done a lot of empirical work in Victoria where we have a very similar system about what takes place in these conciliations, and confidentiality is one of the things both sides value the most, particularly employers. They want to know that when they come to conciliation they are protected by that as well. Remember that this applies across the range of discrimination claims, including sexual harassment, sex discrimination—

Ms MADELEINE KING: Disability.

Dr Allen : Disability discrimination—which is the majority of them in employment.

Dr O'Connell : Could I add to that comment. Many discrimination complaints involve situations of intimacy and closeness and issues of a very personal nature. In order to retain relationships in the workplace, in public and in private, it can be very important that that not be messed with, especially at an early stage, in order to protect those.

Ms Eastman : I agree 100 per cent. Confidentiality is absolutely critical to the integrity of the commission's process and the confidence that we as members of the public using the system have in the commission, but also for us as lawyers working with that process. It is invaluable for having the best prospect of getting some effective resolution of a complaint.

Prof. Appleby : I would simply add that I agree with the submissions. It is unlikely that individuals are going to come to that conciliation process in the good faith that is required if there is publicity accompanying it. I really think it is an important point that Dr Allen made earlier about it applying across the board, particularly in employment contexts. I pick up the point that Mr Leeser made as well. Perhaps any changes could be directed to simply 18C complaints. We considered this option when we put our submission together and we ultimately rejected this as the best way forward because we thought that there would have to be a very good, strong public policy reason to limit any change in the procedure of the Human Rights Commission or the procedure as it goes through to the courts, otherwise it is going to send a message that these particular types of complaints have a higher procedural burden than other discrimination complaints, and we were not satisfied that there was a strong public policy reason that could justify that public message that would accompany just directing a complaint.

Senator REYNOLDS: Good morning, and thank you very much for your submissions. I want to pick up one point in relation to the process. There have been a number of discussions here and in other hearings about the process itself. Listening to you this morning, you were very much talking about the process as if it was executed as it was supposed to be in the legislation. What concerns me, amongst a number of things, is that clearly, with the QUT case and, I suspect, other cases, the procedure as it was supposed to be in the legislation was not followed, and we just discussed some of those issues about notifications and about that.

When we had a hearing in December, I asked the Human Rights Commission and the Attorney-General's Department about the detail of when 18D kicks in. The Human Rights Commission gave us a table, 101, and nowhere in there was where 18D is considered. At a hearing, they were unable to exactly explain how and when they take 18D into consideration, so I asked the Attorney-General's Department. Mr Walter from the Attorney-General's Department could not even answer me; he had to take it on notice. Mr Walter said:

It has been a while since I looked at Bropho. I think the temporal element here is just slightly confusing. Essentially we have got two things happening. We have got a complaint procedure and then we have got to slot 18C and 18D into that.

And then, at the end, as you are talking about this morning, 'therefore, in practice, it is unlikely that a complaint would be terminated prior to seeking submissions from the respondent to the complainant.'

That greatly worried me: the two people whom you would expect could clearly articulate how the process should work in terms of protecting people under 18D could not do it. They had to take it on notice and still said it was a bit confusing—they were not really sure of how and when it is considered. I am wondering: being an expert in the process and understanding how it should work and having a look at the QUT case, where there are comprehensive failures about where the process as it should have worked did not work, do you have any thoughts about how we could improve, if we took your recommendations, the process for people like the QUT students? They were ordinary Australians who, as you said, we could have educated, but it would not have helped them, because they were not even notified. How do we protect them from nonapplication of the process?

Mr PERRETT: Professor Rice's opening comments did address some of these.

Prof. Rice : In relation to 18D, can I recommend to the committee the full federal court decision in Bropho, which is a very useful and readable account of how 18D works.

Senator REYNOLDS: I have read that and, in fact, I have discussed that at some length with the Attorney-General's Department. In fact, even the Attorney-General's Department said, 'It has been a while since I have looked at Bropho.' And the Human Rights Commission said the same thing. My point with that is that it took five years. Under the current processes in legislation, Dean Alston went through this for five years, and surely that is not fair. It is not right.

Prof. Rice : I think none of us would want to take that on notice. We all have a response for you. Bropho shows us how 18D works as a legal defence requiring evidence—it is matters that arise in court—which is where it happens in a temporal sense, in a formal sense. But back in the commission's process, the commission will take account of a whole range of factors. If, for example, somebody comes along, as they have come to me, saying, 'I've been discriminated against because of the football team I support,' you say, 'Well, actually, that's not covered by the act.' So there is a range of factors that has to be taken into account in the president forming a view of the complaint—one of which will be the matters covered by 18D. The president is not making a judicial decision under 18D. I am surprised that the commission could not say to you in evidence that the factors that are covered by 18D are matters that the president weighs up along with a whole range of other matters in exercising her powers. That is when it comes in as far as the matters it addresses are concerned, but when it comes to matters of formal proof, it cannot come in until you get to the court.

Senator REYNOLDS: And, hence, my point is that you would have thought the Human Rights Commission could have actually explained the process that they are supposed to follow as articulately as you have just done then.

Prof. Rice : With respect, that is a different matter.

Senator REYNOLDS: It is actually not. I think it is quite on point—the fact that the organisation that is supposed to be delivering a process that you have so clearly articulated here today and in your submissions is not doing that. And you said the president should make those determinations through that process. With the QUT case, it never went to the president. You have a look at the testimony from that. The legislation was not followed even at that early point, so, if you have got a commission that is not consistently following the legislative procedure—

Prof. Rice : I think you might have heard us say before, Senator, that to hang policy change on what by consensus is an anomalous case—and I think you said in passing after mentioning QUT 'and I know there are other cases' but I can say that I am unaware of any other case that has attracted concerns that the QUT case has attracted on following of process.

Senator REYNOLDS: What case do you mean though? It is one case too many.

CHAIR: In the interests of time, are the witnesses happy to submit their responses to Senator Reynolds' question in writing?

Ms Eastman : Certainly.

CHAIR: That would be great.

Prof. Appleby : I think, Senator Reynolds, in our submission that we made to suggested changes to the Human Rights Commission's procedures that we believe would address some of our concerns, and so we will not make a written submission but we draw your attention to those. Thank you.

Ms Eastman : I am happy to make a submission as well but I can say representing respondents in these matters, you can be sure that those who instruct me in my submissions always address 18D. So, if there is effective legal representation, and that may be where the gap was in this case to represent the students—I do not know; I was not involved in that at all——but those issues should be addressed by lawyers and those who represent parties properly identifying the issues. It should not just be up to the commission to have to do it.

Senator PATERSON: With respect, 18D was not the relevant consideration in the case. The judge did not even consider 18D.

Senator REYNOLDS: It wasn't a consideration at all.

Ms Eastman : No, it never got there.

Senator REYNOLDS: But it is a bit hard to have representation, if you have not actually been advised that the matter is ongoing—

Ms Eastman : That is true.

Senator REYNOLDS: and that you are being investigated.

Ms Eastman : I am happy to talk to you about that separately or to prepare a further submission.

CHAIR: I thank representatives for appearing on the panel today and for giving your time. Thank you.