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

COUSINS, Ms Stephanie, Advocacy and External Affairs Manager, Amnesty International Australia

HUNYOR, Mr Jonathon, Chief Executive Officer, Public Interest Advocacy Centre

MOORE, Ms Roxanne, Indigenous Rights Campaigner, Amnesty International Australia

O'CONNOR, Mr Tim, Acting Chief Executive Officer, Refugee Council of Australia

OKHOVAT, Ms Sahar, Policy Officer, Refugee Council of Australia

TALBOT, Ms Anna, Legal and Policy Adviser, Australian Lawyers Alliance

ZANGANA, Mr Burhan, Member, Refugee Communities Advocacy Network, Refugee Council of Australia

[11:25]

CHAIR: I now welcome representatives from Amnesty International, the Australian Lawyers Alliance, the Public Interest Advocacy Centre, and the Refugee Council of Australia.

Mr LEESER: Chair, before we start, I should declare that prior to my election to parliament I was a board member of the Public Interest Advocacy Centre. But I have not met Mr Hunyor yet.

CHAIR: Thank you, Mr Leeser. Do any witnesses have comments to make on the capacity in which they appear?

Ms Moore : I am a Noongar woman.

CHAIR: I invite you all to make a brief opening statement. Given the time constraints, could you please keep it brief?

Ms Cousins : Absolutely. Thank you for the opportunity to give evidence to this inquiry. I would like to begin by acknowledging the traditional owners of the lands that we are meeting on today, the Eora nation, and paying respect to elders past, present and emerging. To make efficient use of time, I am making the opening statement on behalf of all of the organisations represented here today: Amnesty International, the Australian Lawyers Alliance, the Public Interest Advocacy Centre and the Refugee Council of Australia. Each of our organisations represents different stakeholders and we have each addressed the terms of reference of this inquiry in slightly different ways.

Several of our submissions note that there are serious threats to freedom of expression in Australia, but they do not come from the much debated sections 18C and 18D of the Racial Discrimination Act. Numerous laws in Australia criminalise speech that ought to be protected in the public interest. The Border Force Act, section 35P of the ASIO Act and several pieces of counterterror legislation curtail free speech in ways that are concerning and were highlighted as such by the Australian Law Reform Commission in its 'Freedom of speech' chapter in its final report of Traditional rights and freedoms, which is noted in the terms of reference. But it seems that these laws are conspicuous in their absence from the terms of reference of the inquiry. We have addressed a number of these laws in our submissions anyway and we welcome discussion of these matters today.

Our submissions all highlight the importance of balancing the right to freedom of expression in Australia with the right to be free from racial discrimination and racist hate speech. For over 20 years part IIA of the Racial Discrimination Act has struck this balance well, we believe. The courts have interpreted violations of section 18C to require a high threshold of harm, in light of the general presumption of freedom of expression. There are strong free speech protections contained in 18D. We are satisfied that the balance struck by the RDA is consistent with the Australia's international human rights obligations and we do not see a reasonable justification for amending the legislation. Indeed, to do so could have profound and serious consequences for those in our community who experience racism. To embolden those who would seek to denigrate others on the basis of their race would be a reckless move for this parliament, in our view, and we urge the committee not to go down that road.

We are fully supportive of the Human Rights Commission's complaints-handling procedures and conciliation role. While we welcome questions on ways this process could be further improved, we note that, in 2015 and 2016, 98 per cent complainants and respondents surveyed by the commission after conciliation reported that they were satisfied with the process.

Racial discrimination or racist hate speech is not about hurt feelings. It can cause significant psychological and physical harm and flow-on effects in terms of poor employment and education outcomes, and it can hinder community participation. It can undermine settlement outcomes for new migrants and refugees, many of whom are all too familiar with racial vilification and had to flee in the first place because of their race. It can also open the door to more severe acts of intimidation and violence. So while 18C plays a vital role in protecting people in Australia from these negative impacts, it is not a panacea for addressing racism in our community, and nor should it be. The Australian government and all parliamentarians have a critical role to play in leading by example to promote inclusion and denounce racism in all its forms.

I believe my colleague Burhan Zangana, representing the Refugee Council's Refugee Communities Advocacy Network, also wants to give a short introductory statement from his personal perspective.

CHAIR: Thank you. Please proceed.

Mr Zangana : Thank you for the opportunity to give evidence at this inquiry. I arrived in Australia as a Kurdish refugee from Iraq 22 years ago, the exact same year that part 2A of the Racial Discrimination Act was introduced.

Today I represent Refugee Communities Advocacy Network. I and many of my fellow community members have experienced racism and hate speech in Australia. We have been subjected to name-calling and racial slurs while we were waiting for the bus, while we were walking in the streets, in workplaces and in many other public places. We were told to go back to where we came from and labelled as terrorists. These incidents can shake you and are hard to forget. After 16 years I very clearly remember the racist behaviour directed at me by two men shortly after the September 11 attacks. I remember clearly another incident that happened a couple of years ago in another workplace where I was told I am black haired and a wog and was laughed at. Knowing that a law exists that supports you can act as a good psychological support. I always choose to let those incidents pass, but it is good for me to know that I am protected by the law, even if I may never consider using it to make a complaint.

I and many of my fellow community members have experienced years of discrimination in our home countries. As Kurdish persons, we are discriminated against in many countries. For example, we were unable to learn to read and write in our own language, and as a result we highly value the freedoms that Australia offers. We respect freedom of speech, but it should not be at the expense of protection from hate speech. Changing the law can lead to more serious incidents. It opens Pandora's box. In Iraq, Kurdish people did not know their rights and they did not know where they stood. In Australia, I know I can stand up for myself and my community, and this is what I am doing today. I am standing in front of the honourable members of this committee and the public asking you to recommend that this law, which provides safety and protection from racist speech, remains in its current form.

Whenever I arrive at the airport and see the 'Welcome to Australia' signs it gives me a sense of belonging and makes me proud. This is what I want our Australia to continue to be: welcoming to all and protecting all from racism. Thank you.

CHAIR: Thank you. We will proceed to questions.

Mr PERRETT: The Australian Lawyers Alliance submission says about the process of the AHRC:

Complaints were finalised within 12 months in 98 per cent of cases. This indicates that unreasonable delay is not a concern of either respondents or complainants in nearly every case.

And I think Ms Cousins said that 98 per cent of respondents and complainants were happy with the process?

Ms Cousins : Those who have been through conciliation and completed surveys afterwards, yes.

Mr PERRETT: With 98 per cent of cases being completed within 12 months, surely that is excellent compared to some other jurisdictions? I am not sure if you are familiar with other jurisdictions, such as applications to the Federal Circuit Court, for example. I just wondered if you would like to talk about the overall process, because we might hear from a senator from Victoria, who might talk about the QUT case in his questions.

Ms Talbot : From our point of view, the process that exists at the commission to conciliate complaints of discrimination on the basis of race and other bases is a really important process in terms of enhancing community cohesion.

A number of complaints that get to the commission might not meet the threshold that the court would impose, were those complaints to make it to court, and there is no finding at the commission as to whether there was a breach of the legislation or not. That is not the role the commission plays. Obviously, a number of the complaints that go to the commission would also reach the threshold of the courts, so there is no finding there either way.

But the important role the commission plays is to bring the parties together and allow them to learn from each other about what their experiences have been of feeling discriminated against and being accused of discrimination. Clearly, that is why the satisfaction rates are so high.

Mr PERRETT: So if there were an accept-or-reject power given to the Australian Human Rights Commission so that they could terminate complaints on the basis of no real prospect of success, would that extend the time frame of 12 months for some complaints—for example, where the complaint has been terminated but a party has sought judicial review?

Ms Talbot : I am not in a position to respond to that. I think that one of the main concerns from the point of view of the commission—I cannot speak for the commission, obviously, but from things that I have read—is resourcing of the commission. Without the resources that they detail in their submission it is hard for them to deal with things more quickly.

Mr PERRETT: Would anyone else like to talk about judicial review?

Mr Hunyor : From PIAC's perspective, we think that there is some merit in the idea that having implemented a statutory conciliation process as something of a filtering mechanism prior to having to go to court, then if a complaint is terminated as being, for example, vexatious or lacking in substance, that would be a basis upon which someone would need leave to then take the case to court. We have addressed that in our submission. We think the Human Rights Commission's submission there makes sense, but we are careful to make sure that the bar is set at the right place. So our submission is slightly different, but for technical reasons I will not take the committee to what is in our submission. Effectively, where a complaint is vexatious or lacking in substance, we think the better mechanism is for someone to have to seek leave to get access to court. That is a much simpler process.

I know that Mr Leeser has dealt with a different mechanism to achieve a similar result. With respect, our position on that would be that that is somewhat more complicated and likely to raise its own issues, and to be more costly. We think the process of leave probably achieves that purpose in a much simpler way. We think the appropriate balance is that there is a reasonably low threshold to get the complaint into the commission to allow that educative process to take place. But then obviously there needs to be a higher bar and there needs to be a way to filter out cases that are unmeritorious to get that balance right.

Mr PERRETT: Mr Hunyor, I was going to ask you about the impacts that racism has on individuals in your community, but I think, Mr Zangana, that your statement as a Kurdish Australian speaks loudly and clearly so I will not ask that question.

Senator PATERSON: Well, I was not going to raise it, but since Mr Perrett is inviting me to, I might direct my questions to you, Ms Cousins. If others want to add to these, please feel free.

You spoke about a significant number of people who had been through the conciliation process and who had expressed satisfaction with it. Obviously, students in the QUT case were not satisfied with it, and we actually heard very strong evidence from Dr Sev Ozdowski, a former Human Rights Commissioner, which was pretty damning about how the commission handled that case. I should say that I suspect, without having spoken to them, that the applicant in that case might not be very satisfied with the 3½-year process and where it has got to. Do you think that that is a cause for concern, the QUT case and how it was handled?

Ms Cousins : I will hand that question to my colleague, Roxanne, who is working on this.

Ms Moore : Thanks for your question. I think it is pretty clear that the QUT case was an outlier in the range of cases that the Human Rights Commission deals with. As the Human Rights Commission submitted to this inquiry, on average, complaints are finalised within 3.8 months. It seems that in this QUT case they made efforts to conciliate the complaint for between 12 and 14 months, which is obviously outside of that usual time frame. And as—

Senator PATERSON: Just on that, sorry, just before we get any further—I think that is a relevant point. I do not think it is fair to say that they made efforts to conciliate the case for that period because the students did not find out about the complaint until the end of the period. So they could not have been participating in a conciliation process; they actually found out at the end of that 12-month limit that there was a complaint against them.

Ms Moore : Most cases, as I mentioned, actually dealt with the complaint in 3.8 months on average, and 98 per cent, as the ALA has pointed out, are completed within one year. Of course when a case goes to court, which is a choice that people in that process make, that takes longer to resolve. But as people have mentioned already, the high satisfaction rate of people surveyed who have completed conciliation in the Human Rights Commission goes against this one particular high-profile case.

I would also make the point that Cindy Prior was not a vexatious litigant; that is not what the court found in that case. The court considered that case on its merits and actually found that some of the statements that were made, the content—the idea of white supremacy, for example—are quite offensive ideas to the reasonable person. I just wanted to make the point that although those statements did not reach the threshold of section 18C, it is clear that they do have a broader impact of racism on the community.

In terms of timing, coming back to that point, it was clearly an outlier and it does not seem justifiable to amend an entire system which has been working well for 20 years on the basis of one case that, for reasons which are not clear to us because it is a confidential process, took a longer time.

Senator PATERSON: I hear all that you say and many others have said it, that this is an outlier and it is unusual, but I have not heard you express an opinion on whether or not this unusual outlier case is troublesome.

Ms Moore : We believe that, according to our international rights obligations, it is very important that people who have potentially had their rights violated by racial discrimination have access to a cost-effective, timely process. On the most part, that is what the Human Rights Commission is providing through its conciliation process. Conciliation in this form to deal with specifically racial discrimination matters is something that has been recommended by the Royal Commission into Aboriginal Deaths in Custody. It is part of the Paris Principles, which is a part of Australia's international obligation.

Senator PATERSON: So is your evidence: as long as we get it right generally and as long as there are not many cases like QT, where we did not quite get it right, it is okay?

Ms Moore : It seems that if the process is working well for 98 per cent of people who are going through that process, it is an effective alternative dispute mechanism.

Senator PATERSON: So is there any other area of human rights law—let's say, the ban on torture—where if you said in 98 per cent of cases torture does not take place but in two per cent of two per cent of cases it does take place so therefore you think it is generally getting the balance right and it is not affecting anyone's human rights?

Ms Moore : This is only a framework that is set up to deal with these cases. How individuals are dealing in that process will differ case to case. All we can say is that it seems that almost all people who are going through this process are very satisfied with the process, with the outcomes. It is clearly cost-effective, it is timely, it is in line with our international obligations; and we think that, just on the basis of a couple of high-profile cases which took longer than the others, it is not necessarily reasonable.

Senator PATERSON: I hear you and completely understand that. I will try one more time. Is there any other area of human rights law where if we generally got it right but sometimes got it wrong you would be satisfied? Apply it to any other area that Amnesty works on—let's say, refugee rights. If we got it right 98 per cent of the time but two per cent of the time we did not, would that be okay?

Ms Cousins : If we got it right in 98 per cent of the time in Australia, I would be very excited. Our submission is not actually not that the Human Rights Commission's complaints process is perfect in every respect and in every case. As I said in the opening statement, we welcome questions on how the process could be tweaked, improved in some ways. The Human Rights Commission has already made recommendations to this committee that we think have merit. PIAC also talked about potential ways regarding leave that the process could be streamlined. So, no, it is not perfect and it could be improved. But I think there has been so much focus on what is wrong with 18C and what is wrong with the Australian Human Rights Commission from only one case that went to court. Last year the complaints that did result in conciliation had a 98 per cent success rate, not just for the complainants but for the respondents. This is not a system that is broken; this is a system that could be slightly tweaked and improved. We just have to have a reasonable expectation of what change is required and not throw the baby out with the bathwater with the changes to the act.

Mr Hunyor : If we look at something like what happened to Lindy Chamberlain, that was a gross miscarriage of justice yet our criminal justice system continues—we have not taken murder off the books. We have to recognise that any legal system sometimes gets it wrong—that is why we have appeals. We would like it to be right all the time. Let us accept that what happened in the Prior case was the system not working well. I am not saying I do accept that, but if we accept that for the purposes of the argument then we still have a system that is working overwhelmingly well, and in fact in that case the complaint was unsuccessful.

Senator PATERSON: So that is just the price that we have to pay to have a system?

Mr Hunyor : With any law you are always going to have cases where it does not work. That is the price you pay for having any law on our books at all.

Mr PERRETT: We do not want to put appeal judges out of a job, do we!

Mr Hunyor : Indeed.

Senator McKIM: I want to address my first question to the representatives of the Refugee Council. Thank you, Mr Zangana, for your opening statement. We have heard about some of your lived experiences of racism in Australia. Based on any personal experiences you have had or the experiences of the people you represent, refugees in Australia, in your view would watering down or abolishing section 18C lead to an increase in racism towards the people you represent?

Mr Zangana : I believe yes.

Mr O'Connor : The Refugee Council has 180 organisational members across the country who work with refugees and asylum seekers day in day out, all the way from service delivery to advocacy and legal work. What we are hearing from our members and the people they work with is that there is great concern in the community about the signal that this does send to people who are prone to racist comments. We have regular contact from refugees and former refugees in the community, and asylum seekers, raising specific issues with us around the sorts of abuse they receive, often on a daily basis. I think the Scanlon Foundation found the majority of people on a monthly basis who came here as refugees were receiving racist abuse, were being vilified. I think Burhan in his opening statement today pointed out the very important psychological aspect this law has for people who come here as refugees and people who come seeking asylum. For them it is a bulwark against what they do face every day and, as Burhan also pointed out, they rarely bring it to attention but they know that it is there and the confidence that gives them is incredibly important.

CHAIR: If any other panellists would like to respond I am happy for them to do so.

Mr Zangana : I do not have anything to add.

Senator McKIM: Can you outline for the committee some of the lived experiences of racism faced by refugees and people seeking asylum in Australia. We have heard lots of evidence already, even in the relatively early stages of this committee, that many people from minority racial groups in Australia feel that their freedom of speech is being compromised because they are basically afraid to speak out and make themselves targets for what they believe will be the likelihood of verbal or physical violence towards them.

Ms Okhovat : Definitely I want to echo what our colleagues have said—for many people we spoke to the impact of racist speech was quite profound. It impacted on their mental health and social participation, on settlement outcomes and on employment outcomes, and in our national consultations many examples were shared with us. We have some examples here, and I can read some of them. They also shed some light on what you said about the freedom of speech and people not being able to speak after they are subjected to racist speech.

We spoke to a young gentleman from Iran last year, and he shared this with us: 'One day I was on a train from Sydney to Newcastle and the guy I was sitting next to started asking me questions like "Where are you from?" I told him "I'm from Iran." He asked me, "How did you come here?" I said, "I came here by boat." He said, "You are a refugee! You are refugee!" and then started yelling, "Go away!" I was really shocked. I didn't know what to do. I was by myself. People were looking at me. I felt very embarrassed. Since that day, every time I board a train that incident replays in my head. I think the way they are showing the refugees influences people, so you just have to lie: just say, "I came here to study," and then everything is fine.'

That was one example. Another example is: 'I was in an elevator with my parents, then this guy came in and started asking my dad where he was from. My dad doesn't live in Australia, so it looked like he was thinking for a few seconds. Then he said where he was from, and the man started laughing and saying, "So you were embarrassed to tell me because you are all terrorists." We all felt so shocked and couldn't answer. The confined space of the elevator made us all feel very unsafe, and then he left. It was more than six years ago, and I still think about it and feel angry at myself. Why I didn't say anything back? Why I didn't call out his racism? This stuff can stay with you forever.'

They were just two of the examples that they shared with us in the context now that we have the law in its current form. As Tim mentioned, we are more worried about the impact of watering down and the escalation in the racist speech or the escalation in terms of the violence that could occur as a result of that speech.

Mr O'Connor : Fundamentally, what we are hearing back from refugee communities is that they want to integrate. They need those social supports, such as 18C, that exist to be able to allow them to do that—to ensure that they are not discriminated against at work or on public transport or in an elevator. Those things are crucial for integration. We take a very conservative view, like many of our members, on this that 18C at the moment should be kept as it is.

Mr LEESER: I want to put a question to Mr Hunyor, Ms Talbot and Ms Cousins. While, I think in response to Senator Paterson, you were saying hard cases make bad law effectively, there seems to be, on the basis of the submissions that have been put to us and the evidence that has been given to us, at least among the ethnic communities across Australia, a sense that while they want to preserve section 18C in its current form there is a desire to change the process. That is quite common among many of the submissions we had from ethnic communities because of a need to restore public confidence in the commission's handling of these cases following QUT and following some of the public controversy that has arisen around the Bill Leak matter.

I want to go to Mr Hunyor's submission on page 4, where he talks about the nature of the recommendation that has come forward from the commission and says that he thinks that leave is enough, from a matter where the commission has effectively terminated it, if you were going to apply to the Federal Court after that. Given that when you go to court, unlike in the commission, costs usually follow the event—indeed, some complainants in this area who have taken matters to court have actually used costs in order to effectively be the punishment when they have been successful—would not a provision that provided security for costs for a complainant taking the matter to court, having had that matter being terminated, be a reasonable thing to put in place in addition to the recommendation that you and the commission have made?

Mr Hunyor : The concern that I have in relation to security for costs is just that that places a significant barrier in people's way that does not exist in other jurisdictions. Security for costs against individuals is very, very rare, whereas in relation to organisations it is more common. I think it depends on where the bar is placed. If you were going to have a security for costs situation, I think in principal PIAC would say that is not the appropriate mechanism. You are much, much better to have a process of seeking leave, which would be an appropriate and reasonably cost-effective filter. But you would need to make sure, if you are going to have security for costs, that it has already been through a reasonably robust process to get there; otherwise, you may have the commission getting it wrong—as any commission will—and then someone has to risk not only having to pay their own costs but having to provide the security for the other side to be able to get off the ground. I think that gets the balance wrong. I think PIAC's position is that we agree that there is a case for doing something there as a filtering mechanism, but it is a matter of getting the balance right so that people's rights are accessible to them.

Mr LEESER: What about extending the range of reasons for which a president can terminate matters or, as I suggested, having a part-time judicial member of the commission who would replace the president's functions and can terminate matters to include no reasonable prospects of success? Do you have a view on that?

Mr Hunyor : That probably sets the bar, but I am not sure if it is too low or too high. I think that that probably does not get it quite right in that the lacking in substance test is probably better than it needs to be, even less than lacking in merit with no reasonable prospects of success, which I think is a much higher bar for the person to have to clear. Having said that, again, it comes down to how we want to structure it. If it is going to be harder to get through that initial gate but easier to get leave then that may work better. Alternatively, it has to be vexatious, and not even lacking in substance, to be chucked out at that early stage. That means that a stronger mechanism to filter at the other end might be appropriate. But, as I said, our preferred model—and I accept it is a matter of getting the balance right—is that it is simply a matter that being vexatious and lacking in substance is the termination ground, and then leave is required after that stage. But if the commission, for example, decides that a complaint is not unlawful discrimination then we would say that that in itself should not be a bar because that is really getting much too close to what the court should determine. I think that is really where we would draw the line.

Ms Talbot : Just briefly, I think ALA would echo those comments. I do not think it is appropriate to be putting a barrier to accessing justice, in terms of security of costs, in as an automatic or even a presumption. If, for any reason, it seems that this is a particularly vexatious matter that a litigant wants to pursue on an exceptional circumstance it might be appropriate, but it would not be appropriate to have a presumption that that be the case. You have to ensure that justice is accessible for people who feel like they have been discriminated against.

Mr LEESER: What about justice for the respondents? I am taking Senator Paterson's example that he put to you of the QUT case. It may be that the complainant is unable to pay the costs. The students in that case were being represented pro bono, but, in a situation where that is not the case, that is not particularly fair for the respondents.

Ms Talbot : I certainly agree it is a balancing exercise. Given the experiences that we have heard about today that are not even reaching the commission because people choose not to raise those complaints for their own personal reasons, I think it is really important that we ensure that people who are feeling discriminated against feel like they have access to help when they feel like they need it. If we start putting barriers in place then that support that was heard about earlier—that the law provides—will be reduced.

Ms Cousins : I might just add to that. From Amnesty International Australia's perspective, and looking at the international best practice around national human rights institutions, the Paris principles that Australia is signed up to around national human rights institutions does set out that all national human rights institutions should have a complaints process that is essentially geared towards reaching amicable settlement of a complaint. It is not an adversarial process. It is about trying to reach settlement—reach resolution of the issue. It can be called 'remedy', but it is also just about negotiating and saying, 'This is what happens, this is what you said and this is the impact it had on me.' It is providing a space where people can come together, see the hurt in each other's eyes and resolve it. That really goes to the purpose of this act, which is to ultimately reduce and, in the long term, eradicate racial discrimination. So that process of conciliation, getting people around the table, is very important.

It is very difficult to get a really good outcome out of an adversarial process, I would suggest, and that is where increasing the bar and tipping the emphasis of the Human Rights Commission towards actually adjudicating whether a complaint reaches that threshold, rather than just getting people in the room trying to work it out in a confidential manner, which is what the process is set up to do, potentially takes the emphasis and the purpose away from the object of the act.

Mr LEESER: Do you support an amendment to, effectively, codify the case law on 18C to make it clear that offend and insult means a substantial offence and not mere slights?

Ms Cousins : Our view is that the courts in Australia—we have heard this many times in the hearings so far—have struck the balance correctly. They have maintained a high threshold for 18C cases and the free-speech protections offered by 18D are appropriate and are consistent with Australia's international human rights obligations. We have stipulated in our submission that, if the parliament does decide to make any amendments to 18C, it should merely be to codify what is the current standard. That is a legal position. That said, we completely agree with others on this panel about the signal that changing 18C would send to the community. One thing is a pure legal technical argument. To be honest, given the way the courts have been managing this balancing act, we do not really gain anything by changing the law.

Mr LEESER: As Professor Stone pointed out to us yesterday, there is a real rule of law problem that we have where the public interprets it as meaning one thing, given its natural and ordinary meeting, and the courts are determining it is something else, and that is undermining confidence in the law, as she put it to us. Her view had at least some weight with me.

Ms Cousins : I think part of that as well is about leadership—leadership amongst political leaders, amongst the Human Rights Commission itself, amongst the community sector. The Racial Discrimination Act and the Human Rights Commission Act are not a panacea for resolving all of these issues, and we do need leadership to call-out racism, say its racism, denounce it, say it is not acceptable. I think perhaps we cannot resolve all these issues through just 18C and the wording of that.

Mr Hunyor : It is obviously a good point made by Professor Stone about the disconnect between the statutory language and the case law, but I think, with respect, your submission, Mr Leeser, makes the point very well that those terms—offend, insult and so on—are used in a variety of legislation and there are many cases where that rule of law exists.

Mr LEESER: No-one is arguing about insulting behaviour, for instance, towards commissioners of the Fair Work Commission. Public controversy is about this particular—

Mr Hunyor : There is reams of case law on what offensive language means and how that needs to be read, and the principle of legality requires courts to do exactly this sort of work all the time. I accept that there is an issue there, and there is one compelling reason why you would say, 'Let's line up the legislation with the case law', but there is also very compelling counterargument that we do know what it means, that the courts have said what it means, that we are debating at length what it means and that there is a significant cost that the community says it will have to pay if we make that change.

Ms Moore : I think also, Mr Leeser, going to your point about the community not understanding what the courts have interpreted, it comes back to this idea of human rights education and the very important role that organisations like the Human Rights Commission have to educate people about their rights and about when they can access remedies under the Racial Discrimination Act. Also, organisations like Aboriginal legal services, for example—whose funding has been cut in recent years—provide important advocacy services to Aboriginal and Torres Strait Islander people, many of whom do not understand their rights and remedies available under the Racial Discrimination Act. I think that human rights education element goes to both making sure that people who have had their rights violated know about the process to begin with and then also that they are able to access it as well.

Ms Talbot : Going back to what Ms Cousins was saying, it is very much a matter of leadership. These issues are not coming to the fore because your average member of the population is reading through the Racial Discrimination Act or any other piece of legislation. There has been, in some quarters, a clear misrepresentation—whether it was deliberate or accidental—as to what these sections actually mean. There have been representations that these sections relate to people's feelings being hurt. It is very clear that that is not the case. That has never been the case. So it goes back to leadership—making sure that people who are in positions of leadership are being accurate in the way that they represent what is the law in the country.

Ms MADELEINE KING: Thank you all for coming in and for your statements and submissions and also to Mr Zangana for your personal story earlier today. I just wanted to state my rare agreement with Senator Paterson that—

Mr PERRETT: Hansard will take note.

Ms MADELEINE KING: Yes. I agree that the complaints process in our legal system should aspire to a 100 per cent satisfaction and success rate, however you judge success. But I do have to acknowledge that the difficulty is that humans are involved and therefore I would contest that is never going to happen no matter what complaints process we are in; nonetheless, we should strive to do better at all times. I know the Human Rights Commission itself has learned from the situation that emerged in the Queensland university case and I commend them for it and I hope the processes will work better in the future.

My original question was to codification but I think you have answered that so I will not rehash it. I want to instead reflect on what Mr Zangana said in your opening statement. You mentioned that—and I am paraphrasing—'It is good to know that 18C is there. It is a show of support from the Australian community to minorities and a protection from racist behaviour even though you might choose not to make a complaint under it.' You said you have been subject to racism. Do you think, firstly, it is a widespread feeling amongst minority communities? I do not mind who wants to answer this. And secondly, do you think minority communities are necessarily aware of their rights to live free from rational discrimination which is embodied in 18C?

Mr Zangana : I believe so. Multicultural communities may not know the legal terms of section 18C or 18D, but they know that there is a law protecting them. I have an example. A few years ago I was in Iraq and I was sitting among my siblings and my cousins and my neighbours, and I told them I did not understand this. I do know what my rights are here. I was born in Iraq mean, but do you know what are your rights? I do not understand it. I do not know. In Australia, in the morning when I open my eyes I know that I am protected. I know I have a right. At the same time I have a duty and a responsibility. I know that no-one can hurt me, can hurt my feelings, physically or racially or in any way. At the same time, I know my limits as well. I know that there is a law. I do not know the terms and the words that are in the law, but I believe that the multicultural communities and the minorities know that. It is the feeling that they get. It is the warmth that they get from the people. Not everyone is racist out there, but they know that the law is there. When something happens, before the police arrive you will have many people standing up for you saying: 'Hey, wait. That is racist what you are doing to that person.' So the multicultural communities know that there is a law, there are people out there standing up for them.

But I believe if a change occurs, then those people may back off if there is no law to protect us backing them up. So the idea is there; people know that they are protected but they do not know the legality of it. That is a good feeling. If anything happens, if there are any changes, I believe that trauma will occur among the people, depression or post-traumatic stress disorder. These things will appear because they have not experienced it before—someone like me. When I came here in 1995, I did not know about section 18C or 18D but from the first day in Australia I knew that I had all the rights like an Australian person. As for any changes, I do not need more rights and I do not need fewer. Thank you.

Senator REYNOLDS: Thank you very much for all of your submissions and your testimony here today. I have one general question, perhaps for all of you. This legislation was introduced in 1994 for criminal and civil sanctions to create social cohesion. It was very specifically stated by the cabinet that this was designed to engineer social cohesion. I think, on that basis, from some of your testimony and the testimony of others, this legislation has been a monumental disaster in terms of social engineering and social cohesion, because it clearly has not resulted, from what you are saying, in social cohesion. Do you think that legislation in itself can ever result in social engineering and change in this area?

Mr Hunyor : Can I jump in first. Firstly, this is not criminal. You mentioned criminal and civil.

Senator REYNOLDS: No, the bill that introduced this also introduced racial vilification crimes into the Criminal Code. It introduced both at the same time.

Mr Hunyor : Sure. I just think it is often raised, in this context, that it involves an element of criminal law, and it is important that when we are talking about 18C it does not.

Senator REYNOLDS: No, no. I did say that bill, the 1994 bill, introduced both criminal sanctions and civil sanctions. It amended two acts.

Mr Hunyor : Sure. In answer to the question of whether or not it has been successful, I guess we do not know what would have happened if it was not there, obviously, and the fact that it has not eliminated racism and has not been a panacea does not mean that it has not been successful. Part of PIAC's submission is to say, simply, 'Let's look at the evidence,' and overwhelmingly the evidence is that this regime has worked very successfully and very effectively. However, the studies on it also show that it has not achieved quite the results that we might have liked. I do not think that means that it is not something that has been worthwhile or made a contribution. But it reflects, as we have heard, the fact that there is a need for leadership and there is a need for us all to recognise the values that are set out in legislation; and, to come back to the point that Burhan made, the importance of having a normative statement.

That is something that PIAC touches on in our submission: in the American context, Mari Matsuda writes of the aloneness of being subject to racism and how that aloneness comes not only from the racist message but also from a government response of tolerance. We think it is important that there is no message of tolerance from government and the parliament through part IIA has said that this is not okay. Obviously, there is always going to be a legitimate discussion about where we draw the line and how we balance those rights, but to have that strong, normative statement that racial hatred is not something that can be expressed in a public place, we think, remains a very important thing and does play a role in social cohesion, if not necessarily creating exactly the world we might all hope for.

Senator REYNOLDS: So is that a yes or a no in answer to my question!

Mr Hunyor : I do not accept that it has been a monumental failure. I completely accept that it has not fixed the problem.

Senator REYNOLDS: So it is a yes and a no?

Mr Hunyor : Yes.

Ms Cousins : I would add that I really do agree that political leadership is absolutely vital. Any act like the Racial Discrimination Act cannot fix racism. It is just not going to, when there are so many components to that, and a very big part of it is political leadership. And a very big part of building confidence in the law is political backing for the law, so those two things are connected.

But I wanted to point out to you that the primary recommendation Amnesty made to this inquiry was that, given there are questions about where the balance sits between freedom of speech and other rights—particularly the right to be free from racial discrimination and racist hate speech—parliament needs to re-engage in this discussion about a human rights act for Australia. That is because looking at individual rights and trying to develop legislation around individual rights, not looking at how they sit alongside other rights, is actually part of the problem here and has led to issues around confidence in, say, the Racial Discrimination Act, because we do not have, for example, a complementary act on freedom of speech. We have an implied right to political communication in the Constitution and we have a number of elements of protection of free speech in this country, but they are not in the form of an act that sits alongside and demonstrates how that right is balanced with other rights that it potentially does come into conflict with.

So, to answer your question in terms of the efficacy of the Racial Discrimination Act and this particular bill, we think one of the ways it could be made more effective in the future is actually to have a better overarching framework for human rights legislation in Australia.

Ms Talbot : I would support those statements as well. I think a human rights act would be a really valuable tool to balance the different rights that clearly conflict from time to time. I would also agree with PIAC—not to put words in your mouth—that the Racial Discrimination Act is not a failure. I think it is a really important tool in the toolbox that is available to help to eradicate racial discrimination, with other tools being education and leadership. But I would point to what we said at the beginning about the satisfaction rates with the commission, to say that actually it really has enhanced community cohesion. Those statistics show that people are being informed about experiences of racism and people have a space to air their grievances about having experienced racism and that means that the community are able to learn from one another about what racism means, in a safe space that is confidential. Unless people choose to break confidentiality, nobody actually has to hear about it. It is helping our community to understand what racism is and eradicate it.

Senator REYNOLDS: That is great theory, and I understand the theory of it, but again to me it is directly contradictory to some of the evidence that we have heard even here today from the Muslim community, for example, where they cite a whole range of issues where they are subject to terrible racial discrimination, if not vilification, and none of that has been dealt with by the Human Rights Commission. In fact they are saying it is getting worse, not better.

Mr PERRETT: We do not get rid of murder laws because people get killed.

Senator REYNOLDS: So on the one hand we have a rosy picture for the few people who do go through that process, but what are 18C or 18D doing for those people who do not have access to it?

Ms Talbot : I am not sure that you can blame 18C for that. As I just said, there is a toolbox here. Part of it is the legislation, part of it is the public commentary and part of it is leadership. To put all of those experiences down to two sections of legislation is not reflective of the circumstance.

Senator REYNOLDS: Coming back to my original question: if you go back and look at the intent—the explanatory memorandum, the cabinet documents—those changes plus the Criminal Code amendments were designed to create social cohesion and eliminate, as much as possible, racial violence and discrimination and vilification.

Mr O'Connor : It is certainly an admirable aspiration and I think it is something we all should be aspiring to as a community. But, as my colleagues have said, there are many elements associated with social cohesion. It is a very rich tapestry. We see 18C as a very important element of that. Of course we need strong political leadership, we need a welcoming community, we need a strong education system and we need a good health system. As we have heard from Burhan today, though, the psychological impact that is provided by 18C is a huge boon to the community coming into Australia and beginning to integrate, beginning to resettle successfully, as many of our constituents do at the Refugee Council.

Mr BROADBENT: I am not speaking on behalf of all of the committee, but the presentation we have had from just about all of the representatives the committee has seen has been most impressive. You are very good. Burhan, when you have been attacked racially, did they know you are a Kurd—or were you a Frenchman, an Englishman, an American, an Italian or a Greek? Who did they think you were? You are likely to get attacked for being a Greek more than a Kurd, I dare say.

Mr Zangana : Racism is racism, no matter where you are from. I feel for someone out there being attacked, not just myself, because I grew up in a country where we did not have any rights. When I came to Australia and I experienced all the rights that I have—as I said before, I do not need more rights, but I do not want less anymore, because I have got used to it now in Australia. But for anyone out there, because of my looks, my accent and maybe my hairstyle—sometimes I dye my hair black and I have curly hair—

Mr BROADBENT: So you are French!

Mr Zangana : You can tell that I am not, let's say, from Europe. I am a migrant or a refugee. You see people out there who look like me, and they can become a target. I feel for them too. I feel for everyone out there because I lived the experience in the past, and I do not want that experience to happen in the future for other people.

CHAIR: I thank representatives from Amnesty International Australia, the Australian Lawyers Alliance, the Public Interest Advocacy Centre and the Refugee Council of Australia.