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

EDRIES, Mr Zaahir, President, Muslim Legal Network (NSW)

RACHWANI, Mr Mostafa, President, Project Manager and Media Officer, Lebanese Muslim Association

SHELLY, Mrs Lydia, Legal Officer, Lebanese Muslim Association

[10:03]

CHAIR: Welcome. I note that Mr Edries is also appearing on behalf of the Grand Mufti of Australia Office. I invite you to make a brief opening statement and then members of the committee may ask some questions.

Mr Rachwani : Thank you for the opportunity to speak here today and to represent the LMA. Firstly, I would like to acknowledge the traditional owners of the land on which we are gathered here today and to pay my respects to elders past, present and future. I also acknowledge that the first nation's people are facing and have faced racial discrimination and vilification for over 229 years.

I want you to imagine for a moment that you receive a package at your workplace. You go down to open it, along with your colleague. Inside is a card that looks rather bulky. You open it and find there is a small machine and three wires sticking out. What do you do? Do you throw it away? Run for cover? Push your colleague away? What would you do in the split second you have in the moment you recognise that you are looking at a bomb?

This is the reality for Australian Muslims now. The card was real, and the LMA did receive one like that last year. Fortunately, it was only a musical card with the face ripped off, but its intention was clear: our lives were, and are, in danger. To deny that would be folly.

The Lebanese Muslim Association, or the LMA, has been in operation since 1962 and is one of Australia's largest and most well established Islamic organisations. The LMA represents a diverse cohort of members and undertakes projects to build social capital, community resilience, cohesion and support, as well as highlighting the positive contribution that the Australian Muslim community has made, and continues to make, to Australian society. In this time the LMA, along with multiple community organisations and individuals, have faced a growing number of insults and death threats, with exponential growth in the past three years. I cannot emphasise enough just how vitriolic, how disgusting and how shocking these instances have become and, unfortunately, how common and unremarkable they have also become.

We have had men call the office and masturbate over the phone to our female secretary. We have had cards smeared with bacon and pig's fat sent to the office. We have had calls for massacres and genocide on our Facebook page. We have had emails from people insulting and demeaning us. We have had bomb threats, threats to protest and riot and threats of sexual violence. All of these moments, fleeting as they may be for the perpetrators, have lasting impacts on the staff and stakeholders of the LMA. I cannot count the times I have had to console shaken and traumatised staff who have had to face barrages of racial vilification. We have spent hours upon hours deleting threatening, disgusting comments on pictures of people praying on our Facebook page, having to read each and every single one.

All of these circumstances, all of these threats and messages, do not emerge out of a political and cultural vacuum. This is why I am here today—to shed some light on the experiences of the Muslim community in Australia and to draw a link between the rhetoric that we are exposed to and the violence in all its forms enacted against our community. There should be no doubt that what is said in the public space, as well as the framing of discussions, can have lasting impacts on the impressions people have of minority communities, and the same goes for this very discussion here today. In a sense we cannot have a discussion on the legal implications of section 18C without reference to the political context in which it exists. There are deep-seated implications that come with this inquiry, largely rooted in a fantasy of what the process and number of complaints made actually are, as well as the place that minority communities have in Australia.

Let us be real for a moment. There are Muslims in Australia who feel obliged to change their names on their resumes so that they can get a job. There are Muslims who feel obliged to remove their headscarves for fear of violent retribution. There are Muslims who actually feel the need to hide their ethnicity, their beliefs and their culture in a nation that supposedly upholds their freedoms. This reality is reflected in the latest Mapping Social Cohesion survey by the Scanlon Foundation that found that racial discrimination based on skin colour, ethnic origin or religion increased significantly, rising from 15 per cent to 20 per cent between 2015 and 2016. The report also found that verbal discrimination and being made to feel like they do not belong were the highest reported experiences of discrimination.

These are essential coordinates around which we must have this discussion. We must accept that racial discrimination and abuse is currently rife, underscoring much of public discourse on many issues. That, in turn, has grave consequences on the state of our freedom of speech. This abuse results in the silencing of the victims, creating echo chambers around those who are yelling the loudest. There is an inherent denial of humanity that comes with these attacks. As per the submission made by the Executive Council of Australian Jewry, no community, no single person, should ever have to have their humanity questioned, to have their essence debased by abuse and vilification. But yet, here we are discussing whether or not people have the right to be bigots.

The effects of racism, the lasting impacts, reveal a danger that trauma becomes normalised amongst Australian communities. To propose watering down the Racial Discrimination Act would be to attack a key protection against hatred and violence. Our freedoms exist within our context, and their integrity is dependent on the platforms upon which they are expressed. Without adequate representation on these platforms, without a system that encourages diversity and promotes tolerance and acceptance and without a language that gives fair opportunities to all and does not inherently call into question our humanity, we cannot entertain a discussion on 18C without the promotion of bigotry. Thank you.

Mr Edries : I just wish to acknowledge the Gadigal people of the Eora nation, on whose land we meet today. I pay my respects to their elders past, present and future. Honourable members and senators, we are grateful for the opportunity to address you and to provide our written submissions, which you hold before you. The Muslim Legal Network of New South Wales consists of a group of legal practitioners practising secular Australian law. We identify with the Muslim faith. We are a group committed to the rule of law and the protection of civil liberties in this country. As an organisation, we appreciate and support the need for Australia to have effective measures in legislation to ensure protection from discrimination for all of our citizens. It follows that any such laws should be reasonable, effective, proportionate and consistent with our values as a society. Our submissions have addressed the first question raised in the terms of reference, being:

Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss. 18C and 18D should be reformed.

Australia is a richly diverse and vibrant society, with our Indigenous Australians at the core of our identity. We are a nation that has built itself from the many cultures and people that inhabit it. As a result, it is pluralism that defines who we are. Freedom of speech has been of particular media interest recently. It is also important to note that incidents of racial vilification and abuse have increased significantly. Racial vilification and abuse has, unfortunately, become an experience that Indigenous and multicultural Australians are very familiar with.

Considering this context, we did not support any weakening of part IIA of the RDA. We also stressed the need for government representatives to ensure that any language used discussing these groups is inclusive and not socially divisive, because such language directly impacts Indigenous and multicultural Australians. We support the need to protect freedom of speech, including the constitutionally implied freedom of political communication. However, it is a well-established principle that no right is absolute and it must be balanced with the protection of the community. We support the following aspects of the submission by the Victorian Multicultural, Faith and Community Organisations:

… any watering down or perceived dilution of the RDA would send the wrong message to potential offenders that hate speech was becoming more acceptable in our society …

Any watering down or perceived dilution of the RDA also sends the wrong message to potential victims—that the law does not protect their right to live free from racial vilification or abuse. The submission goes on:

Just as freedom of speech should be valued, so should the right of people to be part of a free and fair society without suffering the emotional and mental harm caused by hate speech …

…   …   …

This is not an issue specific to any one race or religion, but an issue for all members of society.

…   …   …

Our efforts to create an enriched society requires legislative protection, and our diverse communities should feel supported and guarded by the support of our Commonwealth Parliament.

We are also concerned at the limited scope of this inquiry, which is framed in terms of freedom of speech only. The issue of racial vilification and discrimination is a much broader concept, and such an inquiry should, in our view, consider whether the legislation fulfils its purpose in adequately protecting victims of such conduct. We consider that this narrow framing of freedom of speech under the RDA, in isolation from other laws that impact freedom of speech, such as defamation and counterterrorism laws, does not allow for a complete discussion of the issue of freedom of speech in Australia.

We hope that our submissions and appearance here today, along with submissions from Indigenous, multicultural and faith groups in respect of the inquiry, are given adequate consideration, as it is these groups that will be the most affected by the potential changes to RDA. Again, we thank you for your time and consideration in allowing us to appear today. We are ready to answer any questions you may have in relation to our submissions and acknowledge that the office of the Grand Mufti of Australia has requested we carry any questions you may have for them on notice to respond to when appropriate. Thank you.

CHAIR: We will now proceed to questions. Can you please keep your questions and answers brief, in the interests of time, so that everyone has a go.

Mr PERRETT: Thanks for appearing for today and thanks for the good work you do for your communities. No-one should be suffering that sort of abuse in their workplaces. We heard from some other people, in Tasmania, on Monday who had had some similar types of circumstances. The submission from the Lebanese Muslim Association says:

… from a community perspective, these efforts made to make alterations to the RDA are only exacerbating a debilitating distrust of Government and authorities amongst the Muslim community.

What message would it send to your communities if the protections in section 18C were watered down or repealed? How would it have an impact on individuals in your communities? Do you think that they would be more reluctant to engage in the community for fear of experiencing racism?

Mr Rachwani : From an experiential perspective, I stand by what the submission has said—that it would have an enormously exacerbating impact on the relationship that is currently falling apart between, especially, young Australian Muslims and the wider Australian society and, specifically, with the Australian government. In our personal experience as a community organisation, we have found it extremely difficult to engage with young people on these discussions, mainly due to some of the discrimination that they face in their workplaces, in their lives, personally, professionally—however you like to see it. And currently this discussion, mainly to my community, and to young people specifically, is not necessarily a discussion on processes or legal definitions and so on. This is a discussion on whether or not they should be protected from hatred, and this is how they see it, and they believe that a discussion on watering down 18C is an enablement of hatred against them; it would exacerbate the feelings of alienation that the Scanlon Foundation was speaking about that they feel from our wider society. So I think that currently we are on a course towards a relationship that is worsening. There is further marginalisation. There is further distance between these young people and wider Australian society, and so these discussions are only making it worse, let alone actually taking action and watering down the act.

Mr PERRETT: We had representatives from the Jewish community yesterday talking about this, and I think they used the term 'floodgates', so your comments are interesting. I want to go to the submission from the Muslim Legal Network. It says that they 'would support protections extending to religious minorities (subject to additional investigation and consultation)'. Can you detail what investigation and consultation you would expect the government to undertake before any consideration was given to extend the protection to religious minorities?

Mr Edries : I think this sort of discussion has been had over the last 10 to 15 years in multiple jurisdictions. I know in New South Wales there was some discussion about religious vilification laws that would protect people from suffering religious vilification specifically, and—I will just say where for one moment—that relates somewhat to the wording within the New South Wales act, which speaks about 'ethno-religious' origin, where in 1996 the Hansard record shows that it was actually originally supposed to cover religious vilification as well. For some reason, it—

Mr PERRETT: I know Muslims and Sikhs and Jews were mentioned.

Mr Edries : In the original Hansard, correct, yes. It has somewhat developed into a situation where that does not necessarily provide that protection, so the call for protection, be it quiet or ongoing, is something that is necessary. Back to your question about how we would do that, we say 'subject to additional investigation and consultation' is a kind of wording that obviously we need to be protective off. The last thing we want to do is put religious organisations in a position—for example, we do not want sermons to be the subject of calls for religious vilification. Education, things that should be subject to scrutiny are how we would go about this process. So an inquiry, not—

Mr PERRETT: Are you familiar with the Queensland legislation, where we have got religious discrimination?

Mr Edries : I am, and I have yet to see how it acts specifically.

Mr PERRETT: There is—

Mr Edries : Correct, yes, but—

Mr PERRETT: People can discriminate for religious institutions if it is within the tenets of the faith.

Mr Edries : Indeed. We allow that also in New South Wales with a number of different things. The ADA allows positive discrimination with respect to schooling and teaching and providing particular services. That is not something that is unusual to legislation generally. With respect to our submission, I think the important thing is to understand that, if we backtrack to the early part where we said this inquiry could be assisted by broadening the breadth of what the inquiry is actually looking for and not look at freedom of speech in a very isolated fashion, it is in this same vein that we say: if there were an inquiry or if it was minded that suggestions would be made that religious protections be provided, they would be provided subject to additional inquiries.

Senator REYNOLDS: First of all, thank you very much for your submission today and for sharing some of those horrendous stories and experiences that you now have. What I want to do a bit further at the moment is not so much explore 18C and 18D but just come back to the concept of freedom of speech, because they do sometimes get a bit conflated. Freedom of speech now seems to be synonymous in some people's minds with hate speech, but of course that is not the case.

Mr Perrett and I have just come back from a human rights meeting in London where a lot of Muslim countries were there with us sharing their experiences. One of the key messages I got from many nations is that freedom of speech is actually their greatest protection, particularly for minority groups and organisations—to preserve their ability to speak freely against hatred and potential suppression. I have had cause to reflect on that, particularly now in relation to your comments about the appalling behaviour that you are subject to. It just made me wonder how we can preserve freedom of speech for everybody here to have the robust discussions we need to have to get rid a lot of those hateful things that are going on underground. It is a challenging issue. I could not find any country where reducing freedom of speech looks after minority interests. Forgetting 18C and D for a minute, how do you see your freedom of speech and other democratic freedoms being preserved?

Mrs Shelly : I think that is a really an interesting question. In relation to your comment, 'Let's just forget about section 18C and 18D,' for me that is quite concerning in the split when we are talking about freedom of speech. There can be no doubt that freedom of speech is not absolute for starters. Secondly, we are at an inquiry where we are facing the watering down from the community perspective of the very limited protections. When you say that you are concerned about the lived everyday experiences of Australian Muslims, that is occurring in the context where we have section 18C.

Senator REYNOLDS: That is my point: 18C and 18D have been in place for nearly 20 years. If you look at some of the cases that have forward, they really do not address or deal with the situations that you are now facing. Listening to your story this morning, it makes me wonder whether 18C and 18D are providing you the protections that you rightly deserve in this country, and whether we should look at how we can better protect your freedoms.

Mrs Shelly : In our submission, we have made specific references to supporting the Muslim Legal Network's comments about having an investigation into broadening the protection for religious minorities in this country. It is staggering that when we talk about freedom of speech, we really forget about the issue of social cohesion. Social cohesion should always be in the public interest. It should always be at the forefront in our opinion. With respect to our submission, there seems to be a very big split in government policy. For example, when they talk to us or engage with us about, say, countering violent extremism, social cohesion seems to be at the heart of that, but when we talk about other areas that impact the lives of Australian Muslims such as protections under the RDA, everyone forgets about social cohesion. It really does concern me that 51 per cent of Muslims born in Australia have faced discrimination and feel like they do not belong.

Senator REYNOLDS: The awful acts that you have described here do not reflect social cohesion in society. You cannot mandate. You cannot just—

Mrs Shelly : It does for us, with all due respect.

Senator REYNOLDS: I agree with social cohesion but there are people who are doing all those horrible things to you who are not feeling very socially cohesive. How do we address that? Clearly, 18C and D do not create social cohesion in and of itself.

Mrs Shelly : It is a fallacy that we can engage with the racism as well. I think the Australian Jewish submissions have really hit the nail on the head in that respect.

Senator REYNOLDS: How do you defeat it then?

Mr Rachwani : If I could step in on that question you asked beforehand. I think the important factor here to consider is that, as I said in my opening statement, no conversation happens outside of a political vacuum. So although the legal realities or the realities of the processes around 18C would align with what you are saying, unfortunately the symbolism of that discussion amongst communities has that deteriorating impact. Although 18C does not play a part in the everyday lives of Muslims on the street, for example, or other people that are facing this kind of racial vilification, it is about their comfort and their confidence in their government. Their government is there to protect them against such things. At the end of the day, if we consider social cohesion to be a factor in this discussion, which of course it should be—it is a discussion about dissolving hatred—then we must also consider the symbolism that comes with both this discussion and the watering-down, as well as what 18C represents to communities.

Senator REYNOLDS: Are you saying—I do not think you are saying this, but I just want to clarify—that all of these incidents and the attitudes you get, the horrible things that happen to you on a daily basis, are because of the public discussion on 18C and 18D and they were not evident before this discussion?

Mr Rachwani : Right.

Senator REYNOLDS: So you are saying having a public discussion about freedom of speech has caused this?

Mr Rachwani : Correct. There are two things. Firstly, it has exacerbated the situation, I would say. Secondly, the focus of our submission has been on the impacts on the community that is receiving the abuse and the impacts that this discussion has on that community, not necessarily on putting a halt to the abuse itself, because, as you mentioned, it is a much larger discussion about where minorities fit in Australia—that kind of conversation. I agree with you; it is a much larger discussion. But, at the same time, the lasting impacts on the receivers of the abuse need to be considered in this conversation.

Mrs Shelly : I hope I am wrong, but in a way you have implied that, just because we are having a robust discussion about freedom of speech, somehow we are not on board with that. That is not the case whatsoever. The Racial Discrimination Act, as well as a whole other body of legislation, exists. It has not dampened the criticism of religions in any way, shape or form. It has not called into line the Australian Muslim's place in this society. It has not called into line, for example, what food I serve my child at home. It has not called into line what I choose to wear as an Australian woman in this country. None of these things have been off the table for discussion by our political leadership, by the media or by anybody else. So, do I think that this will inhibit a discussion, a very frank discussion? No. I do not think that is the case whatsoever.

Senator REYNOLDS: Thank you.

Ms MADELEINE KING: Thank you all for coming in and for sharing your very personal, private, shocking and also quite depressing stories. I hope this will not always continue. This is to both groups: would you say members of your associations, and minority communities more widely, are aware of their rights under the Racial Discrimination Act and of the complaints process; and—this is a second part to the question—in your experience, do your communities exercise their right to live free from racial discrimination and seek the assistance of the Australian Human Rights Commission?

Mr Edries : I will address the first portion of your question. Being a legal body, most of our members obviously would be aware of those rights, whether or not that extends to their families being aware of it or actively seeking out those remedies available to them. This, to a degree, links back to the discussion around Senator Reynolds' question, and that was more about whether or not people feel empowered that they can trust the system—my colleague spoke about being able to trust the system—and whether or not it is going to work for you. That probably then delves into a whole other discussion about whether or not access to justice is equal with respect to all different communities, because we know minority communities' access to justice is a giant thing. This is a reason the commission exists in the structure that it does—one of the reasons. We know that, to enable someone to have access to justice, we need to make that justice system less daunting, less difficult to attend to and less costly. This is why we have conciliation processes. This is why the forms are really easy to read.

To come back to your question, yes, our community would be aware of it; from my experience, we would be aware of it. But again, within our community and within our organisation and its body, there are probably more middle-class Muslims who have access to these sorts of things already, and, had they not been lawyers, potentially they may have been able to engage lawyers.

Ms MADELEINE KING: [inaudible]

Mr Edries : Yes. From a broader perspective, the Muslim community is quite spread out in its demographics. It is a reasonably young community as well, in terms of age. We have a greater number of people within the age bracket of, I think it is, 15 to 40 than the rest of the country. What that means for us is that we are getting people who are not in the maturity of their lives, so they may not be willing to take on those sorts of things.

In my experience as a practitioner, we would get a number of people emailing us through our organisation or to me personally saying: 'I have been discriminated against, or I suspect I have been discriminated against. It's in this particular jurisdiction or it's in this state. What do I do?' In terms of do we get the questions and do we think they are accessing them, yes. The commission will probably have better statistics around who the people are who are accessing their services, but more than likely they will seek out information from community organisations like the Muslim Legal Network or LMA or the Grand Mufti's office even. They seek out where they would find that assistance. So whilst they are aware of it, it tends to be a communication or a seeking out that goes through a body that they trust. Unfortunately, I cannot say equivocally the Muslim community completely trusts how the legal system works.

Mr Rachwani : I think my colleague covered a majority of that, and we probably agree with him. We do come from another end of the spectrum, which is the coalface. Our experiences are that in most cases communities, especially young communities, do not actually know their rights. We have been working towards that [inaudible]. But, yes, unfortunately they do not. What is underscoring that discussion is that a lot of the discrimination, a lot of the vilification and the feeling of alienation, has largely become normalised amongst young Muslims, amongst young Muslim communities. So they are not necessarily things that they can actually do anything about because they feel like it is normal, it is the usual circumstance to feel that way or to face those kinds of vilification—all of the kinds of things that I was speaking about in my opening statement. In that sense, the discussion is twofold: (1) knowing your rights and understanding how to go about it; and (2) understanding that we do not necessarily live in a society that upholds that kind of hatred.

Mrs Shelly : I just want to make it clear though: a large part of the normalised behaviour that we are talking about is not actually covered anyway by section 18C, so that is also a concern. Just to put it into perspective: if an incident occurs either in Australia or overseas, the first thing I do as an educated Muslim woman is I modify—and I have just been conditioned to do it—my behaviour and modify where my children go; I modify my involvement in public life. That is automatic; I do not even have to think about it any more. So if I, as an educated Muslim woman, go through this automatically, then I am very concerned about that area of the community, that section of the community, that does not have the resources or the privilege that I have in order to make sense of it all.

Ms MADELEINE KING: This is just a comment: there has been a lot of evidence where minority groups, Indigenous and cultural and religious groups, are themselves silenced by the racism and not exercising either right—either the right to freedom of speech or the right to be free from discrimination—because they want to remain small targets and get on with their lives with a little dignity.

Mr Edries : I acknowledge the time, but what is important to understand from a marginalised community perspective is that we are born into this. This is a reality we face; this is our daily, lived experience—and I cannot emphasise that enough. When your daily, lived experience is to accept that you are going to be vilified, your measure—what your measure might be for racism or discrimination might be here. Mine is up here. I will let it get to here before I do anything about it. Like Lydia said, we are privileged, well-educated people. So in the context of how the RDA functions and whether or not it has enough protections and all of those sorts of things, we cannot forget that when you are talking about people who have been subject—and the reality is that many Muslim organisations will tell you that post 9/11 it has been difficult. It has been more difficult than any other community around the world, I do not think anyone will argue with that, to be able to just live peacefully. We had an example of that in Quebec just recently. You just cannot exist. As much as we would love to exist without that reality, it is very difficult to be able to live in an environment where you are not subject to that. It is really hard.

Mr LEESER: I have a very quick question, given the time. This is a question to Mr Edries: have you had any experience or are you aware of any Muslim lawyers, or people representing Muslims, having experience of bringing matters before the commission and the commission refusing to entertain them because they are brought by Muslims?

Mr Edries : No; I am not aware of that at all. The commission is very good at engaging with people. It is getting people to the door that is the difficult part.

Senator McKIM: Thank you for your submissions and particularly the powerful testimony that you have presented to the committee today. It is very much appreciated. My question is this: if section 18C were to be either weakened or abolished, as many submitters have called for, do you believe that the people you represent, your community, would experience an increase in racism?

Mr Edries : Yes.

Mr Rachwani : Yes, absolutely.

Mrs Shelly : Without a doubt. And there have been times with section 18C existing that I have been fearful of what is going to happen to me in public or fearful for my children. I have had to notify their school and say, 'This has happened,' or 'I have received this in the mail at my work and I'm just putting you on notice.' It is really concerning to me that if these laws are weakened down and if we as a minority group do not have the full protections it is going to put especially Muslim women in a very, very difficult and unsafe situation.

Senator McKIM: I would like to attempt to tease something out. You have all said yes in answer to that question. Therefore, will the freedom-of-speech capacity of the people you represent be further negatively impacted because of an increase in racism against them?

Mrs Shelly : Yes.

Mr Rachwani : What usually happens is that communities feel silenced when they face racism, whether it be through having to lay low to avoid some of the spotlight or because at times you do not want to poke the beast. I do want to mention one thing. What happens in governmental discussions and in discussions in these kinds of rooms have enormous impacts outside. You only need to look at the empowerment that Donald Trump has provided to racists around the world, not just in Australia and not just in America. It has been all over the planet. That is just from a president speaking, let alone a discussion on freedom of speech. I think an element of emboldenment has to be considered, as we said earlier, in terms of the symbolism of this discussion when discussing whether or not 18C needs to be watered down or not.

Mrs Shelly : The rising right has been acknowledged as a threat by our security agencies as well. I think that needs to be firmly put into focus.

Senator PATERSON: Just to clarify something from your opening statement, are you happy to take questions on the Grand Mufti's submission?

Mr Edries : I am.

Senator PATERSON: Great. I am interested in a proposal he has made—and I guess you have backed it in a more cautious way—to include religion as a protected attribute in 18C. Are you concerned, as some have said, that if we include religion in 18C that it would amount in some way in effect to a blasphemy law? That would mean that offending someone's religious beliefs or practices could be against the law.

Mr Edries : I think that is really a step too far. People who have made that comment are obviously not educated as to what blasphemy laws actually are and how they work. I think an educated assumption is that a protection around religious vilification will include tests that are not dissimilar to those which are included with racial discrimination and vilification. So what we are talking about is inciting someone to do something against another person. That is a test well established within our legal framework. We need to be able to work within that framework and understand how that might apply to a religious context. Again, I do not think the mufti's office provided any particular example of how this should be done. He is a theological body, for the most part, and he looks after the theological interests of the Muslim community in Australia, but he sees it as something that is a complaints ready position within our community. So I think caution needs to be had when making these potential inquiries into how we protect people's religious rights or their right to be of a particular faith. I could not put it any further than that, to be honest.

Senator PATERSON: One of the people who made this comment is Jim Spigelman. He is the former Chief Justice of the Supreme Court of New South Wales. So I think it would be fair to say he is fairly educated about the law.

Mr Edries : I think if Mr Spigelman—and I am well aware of his abilities—were to say, 'It would be tantamount to a blasphemy law,' he would have to show the degree as to how that test would function. I doubt that he would be the kind of person who would say, 'Any piece of legislation would be a blasphemy law.'

Senator PATERSON: No, he just said it was a risk.

Mr Edries : Correct. I accept that there is a risk—

Senator PATERSON: That is what I was trying—

Mr Edries : if you take it to the nth degree. We have to accept that. We have to accept that there is risk in every piece of legislation. That is why in our submission—and I suspect, without speaking directly on his behalf, the Grand Mufti's office would agree—we have said that some investigations and tests need to be made to be able to make sure any protections are relevant and proportionate. I think that is a good way of putting it.

Senator PATERSON: Following the attacks on Charlie Hebdo in France, there was a debate in Australia about whether the publication of that magazine in Australia would be lawful or not. People had a range of different views on that. But some of the people who are defending the existing law in Australia said that Charlie Hebdo could be published in Australia. One of the reasons that they mounted was that section 18C did not include a protection against religion. They said, given that a very big focus of Charlie Hebdo's offensive cartoons was religion, that the absence of a religious protection in 18C meant it would be fine to be published here. Again, do you think if we add a religious protection to 18C there is a risk that a publication like Charlie Hebdo would be unlawful to publish in Australia?

Mr Edries : I think, again, it would have to speak to the degree of the protection. It is difficult for me to speculate on a piece of legislation that we have not yet discussed, thoroughly vetted and drafted in accordance with what the intent is. This is the way, as I understand it, that legislation functions.

Senator PATERSON: My understanding is the proposal is just to amend 18C by adding religion as a protected attribute. Currently it says:

… race, colour or national or ethnic origin …

You could add religion to that. It would not change it in any way except that.

Mr Edries : I think 18D would be able to obviate us of any of those frivolous claims. There is a reason we have 18D. It is for that reason. It protects and provides for political discussion, satire and artistic works.

Senator PATERSON: When it comes to cartoons, though, it is a little bit untested. Obviously we have had the Bill Leak complaint. The complaint was withdrawn. We do not know whether 18D would have protected Bill Leak or not. It may have, but it is not clear.

Mr Edries : I think the protections of 18D have been well thrashed out in a couple of cases. We know that more recently with Mr Bolt's case the court spoke about the degrees and the manner in which protections were not available for particular reasons. I know that is a negative test, but we can only work backwards from what the court will not accept to be able to know what they will accept. Again, we are talking a little bit in the abstract here as to whether or not those cartoons would have been protected. I do not know the answer. I think 18D might work. But, again, with all legislation we need a test case and we need to be able to understand how it is going to function, how it is going to work and how the court is going to interpret it.

Senator PATERSON: That is a fair summary. I think it is uncertain.

Mr BROADBENT: Mr Edries, are you saying that communities with a high racism pain threshold actually will not use this law anyway?

Mr Edries : No. I am saying that when you are subjected to extreme levels of racism for the existence of your life your ability to make complaints is heavily lowered. Then you couple that with marginalised communities traditionally having lower access to justice, not because there is no justice out there but because they cannot afford it. There have been some big reports about that and how that functions from the Australian Law Reform Commission. If you combine an ongoing feeling of racism, be it from individuals or perhaps institutionalised—this is why we had an inquiry into Indigenous deaths in custody in 1995—those combinations will invariably makes people feel they will not be treated fairly and therefore they may not seek out those remedies that are justly available to them.

Mrs Shelly : And once you get to that point we are still stuck with the fact that large parts of what would probably be the basis of their complaint does not fit into that neat box of what section 18C offers in terms of protection.

CHAIR: I thank representatives from the Muslim Legal Network and the Lebanese Muslim Association.

Pr oceedings suspended from 10:43 to 10:55