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

OZDOWSKI, Dr Sev, Private capacity

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

Dr Ozdowski : Thank you. I would like to say a few words about my credentials. I am a former Australian Human Rights Commissioner and also Disability Discrimination Commissioner. I have a firsthand knowledge of the workings of the Human Rights Commission and of the Racial Discrimination Act. I have handled complaints, and I know the complaints procedures. I am also a sociologist by training, specialising in the impact of legislation on human behaviour and attitudes. My PhD was on the impact of the Family Law Act on marital stability. I have played and play a continuous role in advancement of Australian multicultural policies. Currently I am chair of the Australian Multicultural Council, but I am not representing the council here. I was also, on a personal level, born and educated in Communist Poland, so I would have a tendency to advocate for universal civil liberties and freedoms before advocating claims against others based on identity.

In terms of general comments, racism exists in Australia. I feel certain you are aware of Scanlon Foundation research and other research which indicates that, depending on the indicator used, between 13 and 17 per cent of Australians hold racist views. This pattern has been stable over the years, although one could say there was an increase in anti-Muslim attitudes in recent years.

There is no doubt in my mind that racism needs to be curtailed, but I am yet to see solid empirical evidence that the insertion of section 18C into the act in 1995 diminished racism. I believe it is a blunt instrument which has many unforeseen side effects. So I support changes to 18C to restore balance between freedom of expression and protection from racial vilification. In an ideal world, I would argue for the use of article 20(2) of the ICCPR, which states:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

So I am very much for banning hatred and incitement to violence, but I believe that 18C goes well beyond the quoted article from the ICCPR.

I also doubt that legislation is a proper and effective mechanism to regulate people's feelings. If we could do it, we could put into the Family Law Act that marriage is based on love, and we would not have divorces. Legislation is an instrument which, I believe, deals with certain behaviours that go under the threshold of tolerance and there is room for the law to interfere. With any act likely to offend, insult, humiliate or intimidate a person because of race, I believe the bar is high and we need to look at it. In particular, I believe this because I have seen the chilling effects of that legislation on the discussion of any cultural characteristics. Questions about cultural practices are risky to ask. It also builds resentment and distrust. It creates a 'them and us' attitude. In my view, it may put multiculturalism at risk. It also creates enormous repercussions that damage the respondent to a complaint, regardless of whether the allegation is proved or not. Being accused of racism is a similar thing to being accused of sexual violence. It is having a very negative impact on people who are accused of racism. It also uses a subjective group feeling as the standard, not a community standard. I certainly would prefer that community standards are used. Adding to it are the reversal of the onus of proof and procedural issues.

Allow me to say only a few things about procedural issues. I think the system and set up of complaint handling at the Human Rights Commission is biased in favour of the person making the complaint. There are a number of reasons for that. First, the Human Rights Commission staff are highly motivated and highly committed to certain ideals of social justice. They are in the vanguard of our society. They would like to enforce their vision of the world. They quite often see punishing the offender and using some complaints as having educational value in society. To summarise, maybe one would think the issue of complaint-handling procedures belongs to the President. Traditionally, the conciliation role was done by the President. The current President has moved more into an advocacy role. When I worked with Alice Tay or John von Doussa, there was no conflict. There was no idea that the legislation should be changed to adjust the procedures. At the moment, clearly there is a problem between the President as a conciliator and the President as an advocate, and the process is messy. Consequently, I believe the process needs to be changed as well.

In summary, I advocate for four things. The first thing is a better balance between freedom of expression and protection from racial vilification. Second, I believe the Racial Discrimination Act should continue to prohibit any calls to violence against Australians on the basis of race and racial vilification—and, I would add, religion. The third is that complaint-handling processes should be significantly reformed. Finally, we need to have more resources going to schools—in particular, high schools—to deal with issues of multicultural Australia and human rights. Thank you.

Mr PERRETT: Thank you for your submission, Dr Ozdowski. Your submission says:

… 18C deals only with a very subjective feeling of offence and there is no linkage established between such subjective feeling and emergence of hostility or violence.

We have heard significant evidence from many submitters who say they consider the meaning of section 18C to be now settled, as per Justice Kiefel's interpretation in Creek v Cairns Post—that is, profound and serious effects not to be likened to mere slights. You disagree with that?

Dr Ozdowski : It is certainly not reflected in complaints which are received by the commission and what the commission does with it.

Mr PERRETT: But in terms of it being settled in law?

Dr Ozdowski : Most likely, the legal issues are a different level. I can agree that they are better defined.

Mr PERRETT: So simply offending someone on the basis of their race would be a slight, wouldn't it? Do you accept that it would not be caught under the section as it has been judicially interpreted?

Dr Ozdowski : I would agree, yes.

Mr PERRETT: And your submission calls for the removal of three of the words currently in section 18C, but until there has been sufficient judicial consideration of those changes there would be more uncertainty about the limits of the provision, wouldn't there?

Dr Ozdowski : I believe we need to have a change in legislation and in judicial interpretation of legislation.

Mr PERRETT: You also say, as I quoted at the start, that there is no linkage between feelings of offence from racial abuse and the emergence of hostility and violence. We have heard different evidence this morning.

Dr Ozdowski : I do not understand. Could you please repeat it, Mr Perrett?

Mr PERRETT: I can quote your words back again if you want. You say that there is no linkage between feelings of offence from racial abuse and the emergence of hostility and violence.

Dr Ozdowski : I am not sure in what context you are talking there.

Mr PERRETT: Your quote says:

Clearly, 18C deals only with a very subjective feeling of offence and there is no linkage established between such subjective feeling and emergence of hostility or violence.

I think that is an accurate quote of your submission.

Dr Ozdowski : Yes, that is correct. I do not see a linkage between section 18C and modification of behaviour in the broader population.

Mr PERRETT: I am not sure if you heard the evidence this morning from the Muslim legal representatives and other submissions. Would you accept that everyday racism provides a fertile ground for more extreme forms of racism? That once the door is opened it can be opened further?

Dr Ozdowski : It depends on what kind of legislation you have in place. If you have legislation which is prohibiting extreme forms of racism then of course it would be influential and it would stop the racist violence. If you have legislation dealing only with feelings I do not think it is having an impact.

Mr PERRETT: If 18C were amended as per your recommendations or in some other way by the parliament, what message do you think it would send to the community at large about currently prohibited behaviour no longer being prohibited?

Dr Ozdowski : Racism is a very serious issue which needs to be dealt with and the legislation deals with the most serious racial offences. It does not deal with allegations which are frivolous or not substantiated.

Senator PATERSON: Dr Ozdowski, defenders of the existing law—some of whom acknowledge that the QUT case is a troubling case—have nonetheless said that we should not change the law based on just one case and that although it might be unfortunate for those students, it is only one case, and the law otherwise works well. I would be interested in your comment on that view.

Dr Ozdowski : Well, to start with, it is not unfortunate. You have several young people who have been accused of racism. It is a very serious accusation. Some of them had to change their career path. Some of them paid a significant amount of money to clear their names, if one could ever clear their name. I think it is a very significant issue. What are you trying to say? Okay, it is one of few cases which emerge. Since Bolt we did not have much for a long time, but it has started to happen now. It has started to happen now because the procedures of complaint handling became lax at the commission. It may change again with a change of personnel over there and we will return to a relative period of stability. But the fact that it could be used in the way it was used and that it created so much damage which is seen by a vast majority of Australians as unjust, I think is adding to the changing attitudes and adding also to negative attitudes towards multiculturalism, racial minorities and so on.

Senator PATERSON: If we made no change to the law and it stayed exactly as it is, do you think that there is a risk that there will be more cases like QUT?

Dr Ozdowski : I think so. There will be more cases coming.

Senator PATERSON: Thank you.

Ms MADELEINE KING: Thanks for coming in today and thanks for your current work and also the work you have done for the commission in the past. I just want to clear up a theme that was coming through in your submission to the committee. You mentioned in a few different sentences about the 'criminalisation' of—

Dr Ozdowski : I used the wrong word.

Ms MADELEINE KING: Right. I just wanted to make sure we are clear that there is no proposal to do that.

Dr Ozdowski : It was my mistake.

Ms MADELEINE KING: Okay. I am glad to have cleared that up. Just a moment ago you made an allegation about the current complaints handling process of the Australian Human Rights Commission. I am wondering: is that just what you have read in the papers, or do you have particular knowledge of the process?

Dr Ozdowski : As I said, I handled complaints before under two other presidents. I know how—after the change to the human rights legislation after the High Court case—the changes emerged and how presidents were handling the complaints. In a way, part of the job of John von Doussa or Alice Tay was to keep controversy out of advocacy, to remain an independent arbiter when complaints arose and to be able to chair the conciliation processes.

I did act in the first Human Rights Commission on a few complaints, including racial discrimination complaints. I travelled to Woolgoolga, for example, to deal with complaints by the Indian community, and to other places. I also handled some complaints in the commission when I was a commissioner. But I also spoke quite often with my staff, and the staff were quite open to the view: 'Let's go and find the complaint which would help us to change the system.'

Ms MADELEINE KING: The regulations.

Dr Ozdowski : Yes. I do not like to mention names and so on, but it is how the staff saw it. Maybe it was okay. Maybe, at that stage, I thought it was good because I also saw myself in the role of bringing about change and improving society. But even if we brought a complaint which could achieve what we wanted to achieve it was handled by an independent president. There was no linkage from the moment the complaint was lodged with me as a commissioner and through all the advocacy. It was handled independently.

The current president, in my view, got a bit confused between the roles of the president and the Human Rights Commissioner. As you know, she also called for the abolition of the function of the Human Rights Commissioner and, for some time, was using the title of Human Rights Commissioner. They are two very different roles.

What was also quite interesting for me, when the commission asked me to do the various inquiries, was that I had to withdraw from an advocacy role because, as a commissioner doing an inquiry—for example, into children in immigration detention—I would be viewed by the department of immigration, service providers and the ACM as a person who was biased, and rightfully so, and they would have challenged my appointment in a court. So, in a way, it is very important, if the commission is to handle the complaint, to ensure that it is handled by somebody who is neutral.

Ms MADELEINE KING: Certainly. We have heard evidence from the commission—I have mentioned this before, and my colleagues would be aware of this—and from other supporters of the commission's work that their complaints resolution process is, by and large, in the vast majority of cases, very successful, quite timely, and it generally deals with things well and there is a high level of satisfaction. That is detailed in their submissions, so I will not go into it. I wanted to let you know that, and you might reflect on that.

Dr Ozdowski : I think there is a problem with that statement—

Ms MADELEINE KING: But I also just want to ask you a quick question about the conciliation process, which is confidential, as you know. Others have called for it to be a bit more open. Do you have any comments to make on the value of a conciliation process remaining confidential, for both parties—complainant and respondent?

Dr Ozdowski : I think it should stay confidential, otherwise people will not be able to discuss various issues between themselves. We always, when we handle complaints, focus on ensuring that there is a balance of power between the person who made the complaint and the respondent. I would say that sometimes it works to the advantage of the person who made the complaint, because usually the weaker people make the complaint through the commission. Overall, if it aims at conciliation, it could be a good process, providing most people are willing to participate in it.

Senator REYNOLDS: Yes, I agree. Thank you very much.

Mr LEESER: You made the comment that the commission's process for dealing with complaints needs to be improved. Do you have any recommendations as to how we might improve that process? Have you had a look at the recommendations I put together?

Dr Ozdowski : Yes, I read your paper, and congratulations. I do not have a problem with what you are proposing. I would possibly only add that it worked in the past under the current legislation. It stopped working for some reason over the last few years. Perhaps, as you are suggesting, some changes to legislation need to be made. To have a judge doing it, I am not sure. The president was usually a judge or a professor of law, jurisprudence and so on, and they have been able to handle it.

Mr LEESER: You have seen the operation of the complaints handling processes under President von Doussa, who was a federal court judge, and under Professor Tay, who was an academic.

Dr Ozdowski : Yes, and Dame Roma Mitchell.

Mr LEESER: And Dame Roma Mitchell as well, who was a judge. Do you feel that having a person who is or was a judge increases the standing of the commission, makes it less likely for people to appeal decisions and helps quieten the public controversy around some of the decisions? That was part of the purpose of my—

Dr Ozdowski : It could, but it puts the role of presidents very much in question if you remove it, because effectively you would be removing complaints from the president's responsibility. Then you would need to see what role you would give to the president. Maybe it would make sense to merge the Human Rights Commissioner with the president's role, as it was under Labor some time ago, or maybe presidents should simply be chairs of the board, part time, because the other role the president has is to look after the commission's budget and staffing matters, but staffing matters and the budget are usually delegated to the chief executive officer. I do not have a problem with what you are proposing, but the question I will pose to you is: what do you do with the president's position?

Mr LEESER: One of the people who are appearing before us in Perth on Friday has made the suggestion that the conciliation should effectively be done by independent conciliators rather than by the commission. Do you have a view on that?

Dr Ozdowski : Technically conciliators in the commission are independent because they form the judgement. I have never heard of a commissioner or president interfering with the way things are handled. It is possibly a strengthening of the processes, so there are no process failures, as has happened with the university of technology students. If there is never an independent body; they need to work to somebody. So I would leave it with the commission, but I would look seriously at changes to procedures.

Mr LEESER: Thanks, Dr Ozdowski.

Senator McKIM: Good morning, Dr Ozdowski, thank you for your submission and for your appearance here today. You said in your evidence that 18C only deals with very subjective feelings of offence, as Mr Perrett quoted to you. Your submission says that the legislation is not a proper or effective mechanism to regulate people's feelings. Do you accept that the way the courts have interpreted the Racial Discrimination Act actually sets a far higher bar than just someone feeling—

Dr Ozdowski : Yes, that is what I responded before.

Senator McKIM: I am sorry, I was out of the room. So you do accept that?

Dr Ozdowski : Yes, I do accept it.

Senator McKIM: Is your submission therefore that we should change the legislation in order to better reflect the position that the courts have taken so there is more consistency there?

Dr Ozdowski : Yes. I really do believe that the legislation should deal with real issues of substance. I think it will work better for everyone—and, believe me, I am very strongly opposed to any racial vilification. I believe that the cases that we see sometimes on Australian transport should be covered by it, and so on. But, at the moment, especially in the context of public debate about the Queensland University of Technology students and Bill Leak and so on, public opinions change, and I do not really believe that it is very helpful for the cause.

Senator McKIM: Thank you. I just make the point that neither of those cases were successful, ultimately— both QUT and Mr Leak's case. One was found against and the other was withdrawn. We have heard evidence from many people representing minority racial groups in Australia that they have no doubt that any perceived weakening of the protections in 18C would lead to an increase in racist behaviour towards those minority groups. Do you share that concern?

Dr Ozdowski : No, I do not. I did not see any evidence that the current legislation impacts on the levels of racism in Australia and I did not see any evidence that, with the removal of it, it may increase. I saw evidence that, for example, I think Andrew Jakubowicz provided, that various ethnic communities—and I am part of it—would like to protect the existing status quo, and if it is not protected all hell will break loose. I do not believe that.

Senator McKIM: Okay, that is very different from what we have heard from a number of other people. Your submission calls for a better balance between rights that at times conflict—the right to freedom of expression and the right to be free from racial abuse and vilification or racist behaviour. We have heard a lot of evidence that racist behaviour towards minority groups in Australia actually compromises their freedom of speech, because people feel afraid to fully express themselves because they are in fear of verbal or physical violence as a response. Do you accept that there are two sides to the freedom of speech argument here and that in fact many minority groups in Australia are scared to fully express themselves because of those well-founded fears?

Dr Ozdowski : The same goes for non-minority members who are afraid to express themselves. I can give you an example from my personal life. I had been managing staff for a long time and I had people who were of different ethnic or racial backgrounds. Believe me, it is much more difficult to discuss with them if there is non-performance than with any other staff, because you have the threat that you could be accused of racism, that you do not understand the person, that you do not understand motivation because you are a racist. In my case, if I would be accused of racism, it is a career change—I need to do something else. Consequently, I and a whole range of other people on the other side need to limit what they are saying, and sometimes it is to the detriment of people, for example, who work for us because we believe it is too high risk to manage it properly.

Senator McKIM: I hear that argument, but the question was: do you accept that there are two sides to freedom of speech argument here and that some members of minority groups in this country are currently afraid to speak out because they are in fear of verbal or physical violence as a result, and therefore their freedom of speech is compromised?

Dr Ozdowski : Of course, I do accept it and therefore I argue to set the bar a bit higher, at the level that all of us really well understand what can be done and what cannot be done.

CHAIR: Thank you, Dr Ozdowski.