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

SACKVILLE, Justice Ronald, AO, Private capacity

[12:36]

CHAIR: Welcome. Is there anything you wish to add about the capacity in which you appear today?

Justice Sackville : I do not speak on behalf of the judiciary or any section of the judiciary.

CHAIR: Justice Sackville is tabling a copy of his opening statement. May I have a member of the committee move that it be accepted.

Mr BROADBENT: So moved.

CHAIR: Are there any objections? There being none, it is approved for tabling.

Justice Sackville : Thank you. Can I just add, very briefly, that I have received an invitation but actually received it only very shortly before this meeting, so I would have provided a statement a little earlier. The statement summarises what is in a much longer article of which I have provided copies, and I assume that the reason that I was invited to come before the committee is that in that article I attempted to set out my views on issues that happen to be before the committee.

The background to that paper is that it was prepared not for the purposes of enlivening or informing any political debate about the operation of part IIA; it was, in fact, in its origins a presentation to an audience at the Jewish Museum in Sydney. Because of the views that I expressed, it should not be assumed that the audience at the Jewish Museum was necessarily wholly in favour of what I had to say. Indeed, you would have already heard from the Executive Council of Australian Jewry, whose views on many of the issues are somewhat different.

But I think it is important to stress, because I do propose some changes to the operation of the legislation, that anybody who has lived as a Jewish person in this country for as long as I have, which is now into its eighth decade, cannot have avoided experiencing anti-Semitism in one form or another—and the consequences of anti-Semitism will have been outlined to you by the Executive Council of Australian Jewry, if not by other groups, and of course the consequences that flow from anti-Semitism have been experienced by many other groups in the community, as the committee has heard. But I do want to make it clear that, although I favour changes in the legislation and I attempt to explain in that article and I summarise the issues in this statement, I do think it is of profound importance that Australia has a national law that provides protection not only against anti-Semitic speech but against other forms of hate speech that are directed at vulnerable groups and individuals. In the article, I attempt to provide what might be described as a philosophical or policy justification for taking that approach. Other submissions that this committee has received make the same point and, if I may say so, some of them seem to me to be of very high quality indeed.

The only other point that I would add is that I think you have heard or will hear today from the Gilbert + Tobin Centre of Public Law. That, I think, is a particularly valuable submission, and I think you will find that there is a surprising degree of common ground among submissions that on their face seem to take a different view as to whether there should be changes made to the legislation.

Thank you for that opportunity.

CHAIR: We will go to Mr Perrett first.

Mr PERRETT: Thank you for appearing. At the moment, you could argue, we have heard suggestions saying the law is settled.

Justice Sackville : Yes, I am not sure that is right.

Mr PERRETT: Would you like to expand on that?

Justice Sackville : People often say that, and they are not often right, actually.

Mr PERRETT: So you do not believe that in Australia at the moment it is settled as the current Chief Justice of the High Court has indicated in her comments earlier.

Justice Sackville : No. She was not a justice of the High Court when she made those comments.

Mr PERRETT: I understand. She has got a little bit of weight behind her at the moment.

Justice Sackville : Yes, she has a little weight behind her, and so do six other members of the High Court. The Executive Council of Australian Jewry's submission is predicated on the basis, for example, that the interpretation is settled, that 18C incorporates an objective test. I do not believe that is correct—at least not entirely correct. The language of section 18C incorporates subjective elements. The courts, including the decision of Justice Kiefel, have been at some pains to try and introduce objective elements into the interpretation which in fact do not sit very well with the language. If that language were to be interpreted by the High Court afresh, bearing in mind that the High Court in recent years has taken a somewhat literalist approach to statutory interpretation, I would not be at all surprised if there were a somewhat different approach taken to the interpretation of the legislation. One of the problems with the legislation in its present drafting is a lack of coherence, because there are inconsistent concepts embodied within the legislation that I think do need to be clarified and made consistent.

Mr PERRETT: My second question goes to your opening statement in a way. Taking off your judicial hat—

Justice Sackville : I haven't got it on!

Mr PERRETT: Sorry; putting aside your judicial expertise, as a Jewish Australian—and I am not sure you were here for the questioning of the panel before you—

Justice Sackville : I was here for part of it.

Mr PERRETT: Senator Reynolds stated that the amendments to the Racial Discrimination Act have failed, because there is ongoing racism—in fact, we heard, there has been an escalation of ongoing racism. Could you, as a Jewish Australian—

Justice Sackville : I did hear that exchange, yes.

Mr PERRETT: comment on your own experience of pre-'96 or even growing up and how things have changed? Are we becoming a more tolerant Australia?

Justice Sackville : If I may say so, I think it is a very considerable mistake to say that because things are not perfect, they have not been improved by legislation.

Senator Reynolds interjecting

Mr PERRETT: I could not remember your exact words.

Senator REYNOLDS: It is not what I said.

Justice Sackville : That, I think, is my characterisation of my understanding of what you said. The interaction between legislation and social change and attitude is a complex one. I have written about it in the past. The exemplar is Brown v Board of Education in the United States—the school desegregation case. Was that case a product of changing social attitudes in the United States or did it introduce major changes in social attitudes towards race relations? The answer, I think, is both. I think that you only have to consider attitudes towards women, towards integration of groups in this country that are not Caucasian. I grew up at a time when I was 13 years old before I saw a black person, because there was a White Australia policy. There have been profound changes in Australian society, some of which are very recent. In many cases they have been influenced—not necessarily entirely caused—by legislation, because, of course, you cannot have legislation until a democratically elected parliament introduces the legislation, so there has to be a certain degree of public support for it. But, speaking for myself, I have no doubt that, as far as race relations or toleration of minority groups, as examples, are concerned, this country has been astonishingly successful. It has problems, and there are serious pockets of racism in this country still, but legislation has played a major role, and I would include in that part IIA of the Racial Discrimination Act, because norms, as somebody said in that session, are enormously important in shaping social attitudes.

Mr PERRETT: Thank you. I am sorry, Senator Reynolds, if I misrepresented what you said. That was my understanding of the line of questioning.

Mr LEESER: I would like to test your two propositions if I may, particularly in the context of the law as it stands. First, you suggested that 'offend, insult, humiliate or intimidate' be replaced with 'degrade, intimidate or incite hatred or contempt'. Effectively, what you are trying to do, if I am not wrong here, is to substitute a different form of words that perhaps better reflects the judicial interpretation thus far. I wondered: given the strong support for the maintenance of section 18C of the Racial Discrimination Act with the current language, would it not be better to codify Justice Kiefel's words in the Creek and Cairns Post case about 'profound and serious effects, not to be likened to mere slights' on the basis that, although it is fair to say no law is potentially ever settled, there has been reasonably consistent application of that test since 2001?

Justice Sackville : I do not think it is quite as simple as that, if I may say so. The reason is that the subjective element in 18C introduces the opportunity for evidence from people or groups that have been affected and, in practice, the evidence of subjective reactions to the hate speech has been of very great importance in determining whether there has been a contravention of 18C and, indeed, whether the exemption in 18D applies. I think that there are difficulties in just incorporating a particular interpretation of language. In my view—and it is, of course, a respectful view—I think there are difficulties in reconciling what Justice Kiefel said in that case with the actual language that is there at present.

Mr LEESER: I do not disagree with that, and that is perhaps why I would be more in favour, at least, of codifying the language. I worry that, if we put in a new set of language of this sort, we actually increase the level of uncertainty rather than decrease the level of uncertainty. 'Degrade' is a new word in this context.

Justice Sackville : There will always be uncertainty with any legislation, and there will be a process of interpretation until one can say that the principles are finally settled as far as they can be. Often that requires the High Court to have a say in how they will be interpreted. But I think the difficulties actually go a little further than just incorporating the interpretation of Justice Kiefel, because one has to address whether it is really genuinely an objective test that you are applying or whether you are just saying, 'Subjectively, was this really, really serious?'

Mr LEESER: I want to come to that because you mentioned it in the earlier answer. The question as to whether it should be an objective test, and it is an objective test based on a smaller group—in other words, a reasonable member of the relevant group that is affected—or whether it should be an objective test relating to the broader Australian community is one that you spent quite some time talking about. Yesterday we had Professor Adrienne Stone speak to us and give us her submission, and I tested this particular proposition with her. She said that one of the key objects of this piece of legislation—part of the legislation—is actually the protection of minority groups and minority groups are likely to be affected by these sorts of matters differently from the broader Australian community. I see the logic, if I may say, in what you propose, but I worry that it might actually undermine the efficacy of the legislation if we were to adopt a broader test. You can think of examples—for instance, during the Second World War, Japanese and German Australians may have been held in a lower level by the rest of the population. Attacks on them on the basis of their national origin would have had a different import for the ordinary Australian than it would for the German or the Japanese Australian.

Justice Sackville :  I do not think that a test that focuses upon what a reasonable member of the community would think requires you to consider how that reasonable member of the community would react to the particular slight. The test would be: how would a reasonable member of the community view this particular attack on this particular minority group, having regard to the characteristics of that minority group and the nature of the speech or even actions that are directed towards that group? I think that distinction is actually quite important.

I do not think that there is as much difficulty as many people consider in interposing that kind of objective test. What it does is to move away from regarding the subjective impact upon the group as more or less determinative of the outcome, at least where the subjective impact can be regarded as serious or some other adjective being satisfied. So I think that the objective test, in the sense that I have put it, would not undermine the objectives of the legislation—not at all.

Mr LEESER:   Like you, I am a member of the Jewish community. A reasonable member of the Jewish community might have a different reaction to holocaust denial than—

Justice Sackville :  They would.

Mr LEESER:   say, an ordinary member of the Australian community.

Justice Sackville :  Yes, and one of the problems, as I try and outline in the paper, is that you get to a point which can almost be regarded as improbable, difficult to apply, as when Justice Branson in Jones v Toben said that she was applying a test of what a reasonable member of a particularly vulnerable subgroup, which happened to be young, impressionable Jewish people faced with holocaust denial. Once you get to that kind of level, I think you are dealing with concepts that are, in fact, extraordinarily difficult to apply and will not work. The reason they will not work is that you cannot impose bounds or limitations. Of course, people will feel very strongly about a whole range of issues. Some people in the Jewish community react extremely strongly and with great fervour to any attack on Israel or to the policies of the current government of Israel, but that does not mean that section 18C or part II A of the Racial Discrimination Act should be invoked to curtail that kind of criticism.

Mr LEESER:   You have 18D there to help you out.

Justice Sackville :  I am not even sure about that.

Ms MADELEINE KING:   Thanks very much for appearing today, Justice, and for your contributions over many years. Many groups have come before this committee expressing their concern. It is also in the submissions that any changes at all to this act will send a negative message out to the wider community and perhaps—this is their contention—encourage different forms of racist behaviour or there will be more. Regardless of what anyone on this committee thinks of that and that it might be stating the case too far, we have to take seriously the very real emotion behind what these people who are coming to this committee are saying to us. It appears to be quite genuine concern. So while we are speaking about a codification of certain parts of the case law and your suggestions that we are seeking to perfect a law, this law, I wonder—and I would like your comments on this—whether there might be groups and communities that will pay a heavy price for a perfection of the Racial Discrimination Act. That is a high burden for these communities to bear for us to have a more perfect law. I would just like your comments on that.

Justice Sackville : You are turning back on me the idea that perfection is the enemy of the good. I think there is something in that and I think it is a legitimate consideration to take into account. However, I also think that what encourages racism, hate speech, is very much more complicated and deep-seated than amendments to the Racial Discrimination Act.

Ms MADELEINE KING: I entirely agree.

Justice Sackville : The election of Donald Trump in the United States and the reaction to that is a very good example. I think we are only beginning to see the consequences of that, and those consequences may well be felt in Australia. There are all sorts of things that affect whether we have racism or hate speech. It would depend to a considerable extent upon how the changes were presented—and I go back to the Gilbert + Tobin submission, which I think sets this out very well. It explains, in a way that I have not, how important it is that the legislation actually reflect what it is intended to do. If there is a disparity, as I discussed with Mr Leeser, between the way in which the legislation is interpreted and the language, which ordinary people ought to be able to read and have a fair grasp of, that is a very legitimate reason for changing the legislation so that the interpretation accords with the statutory language. In other words, I think this is a problem that is manageable, but I recognise that it would require careful management, as does any area of the law where reform is involved.

Ms MADELEINE KING: You point out that part of the problem is the times that we are living in as well. Another witness, I think yesterday, said that there is a rise of xenophobia in Europe and America at the moment and different things are happening, so it might not necessarily be the best time to be re-examining this in the greater context.

Justice Sackville : That, if I may say so, is why we have an elected parliament and democratic principles.

Ms MADELEINE KING: Indeed. Thank you so much.

Mr BROADBENT: Thank you for your faith!

Justice Sackville : I did not say that!

Senator PATERSON: Thank you for your contribution to this debate. I particularly appreciate the way in which you are trying to find the path that better protects freedom of speech than the status quo but still has robust protections against hate speech. Despite what is said about advocates of change, I completely share your objective in that. I would like to ascertain exactly what your proposal seeks to achieve. By that I mean: are you seeking to bring the application of the law as it is today in line with the legislation as it is read? Or do you believe that the law as applied also needs the bar to be lifted? Does that make sense?

Justice Sackville : Yes, it does and the answer is the latter. I think that the changes that I am suggesting would involve a higher bar before the law becomes involved. I do not think that would undercut the fundamental objectives of the legislation—in other words, the philosophy that underlies it. I think that there is a great danger that, if the bar is set too low, the legislation comes into discredit, and that is exactly what has happened. Of course, that discredit has been exacerbated by consistent and, to some extent, powerful criticisms in the media that have taken a particular line and, therefore, shed a certain light upon the legislation. One way you can make the legislation more immune to that kind of criticism, some of which, in my opinion, is ill founded, is to ensure that the bar is at a level that can be justified on philosophical grounds and on policy grounds and can be consistently applied in a manner that members of the community who are interested enough to understand what is going on can follow and sympathise with.

Senator PATERSON: As you may be aware, a number of our witnesses have said, yes, on a plain-English reading of the legislation, it seems too broad but the application of the law by the courts has lifted the bar a bit and that is why it is okay. So that is not your view. Why is it that you think there is a problem with the law as applied? Why is the bar too low, in your view?

Justice Sackville : Because it brings within the net too many cases. Remember—and this goes back to the question I was asked about Senator Reynolds's comments—the law operates not just as a mechanism for resolving disputes, whether in litigation or in proceedings undertaken before the Human Rights Commission, which, of course, is not a court and constitutionally cannot be a court; legislation is important because it sets normative standards. It explains to people, in a way, what is permissible and what is not permissible. It also acts as a disincentive. I have no doubt that the controversy concerning part IIA has had a chilling effect in some quarters—not, I think, perhaps as much as has been portrayed in some quarters, but nonetheless a chilling effect, that is because some people would be deterred from saying things that otherwise they might by the possibility of being embroiled in a complaint or even in litigation, or because they feel that what they might otherwise wish to say would fall foul of the normative principles that have been embodied. So I think we do have to understand that legislation has a much greater force and effect than simply as a dispute-resolving mechanism.

Senator PATERSON: If the parliament makes no changes to this law and it proceeds as it is, are you concerned that there will be more cases that will bring the law into disrepute and that there may be a call for even greater changes further down the track?

Justice Sackville : I think there is a risk of that. I think that that, too, is probably manageable. I am a proponent of early termination of cases that are without merit. I am a proponent of that within the courts and, unfortunately, in my view, courts are hampered in the extent to which they can terminate unworthy cases at an early stage. There are technical reasons for that that I do not need to go into. But, if the mechanisms within the Human Rights Commission, for example, were changed so as to allow early termination much more readily or to compel it much more readily, that would mitigate the risk, but there would still be some risk of that, yes.

If I can mention something that I think you raised in an earlier session—perhaps it was your colleague—you cannot keep the courts out of it. If the Human Rights Commission determines that a complaint is ill founded because the High Court has said that the jurisdiction to correct what is called jurisdictional error cannot be excluded by legislation, there is no way you can prevent a well-resourced litigant from pursuing his or her or its claim in the court.

Senator PATERSON: In fact, that is not my view and I do agree with you, and that is why I think changes to process alone are not sufficient; changes to law are also necessary.

Justice Sackville : I do not mean to say that that would happen as of course, but there cannot be a complete barrier to litigation.

Senator PATERSON: Agreed.

Mr BROADBENT: And so there should not be.

Justice Sackville : That is a different issue. You could have legislation which says, if a matter is resolved by the commission on the basis that it is without merit, there can be no claim in the court. That would then leave open a challenge to the commission's decision on the basis that it had committed a jurisdictional error. That is not the same as merits review in the court.

Senator McKIM: Thank you for coming in, Your Honour. Just because I have copped a mention in passing from you, I will just be clear that my line of questioning should not be taken to suggest that it is my position that such barriers should be erected. It was simply to draw out—

Justice Sackville : No, I did not—

Senator McKIM: the opinion of the witness. I want to firstly go to the point Ms King raised with you about, I guess, the symbolism and the messaging and the signals that law sends out into our community. Ms King is right: we have heard a lot of evidence of people who have said that they think it is likely that weakening or watering down the legislation, even if it was just a perceived weakening or watering down, could lead to an increase in racism. In fact, the evidence we have had is probably understated. Some people have said they have no doubt that in fact we would see an increase in racism. You have said that you think any change would require careful management. If you will indulge me, I am just going to go on a flight of fancy here. What will happen if we, even in perceived terms, water down 18C? You will get a range of politicians coming out and saying, 'This is a great victory for freedom of speech in Australia and we can now say more than we were previously able to,' and people in Australia will take that as a green light for more racist behaviour. Are you suggesting that this matter can be carefully managed by the broad body politic in this country? I am deeply pessimistic about that.

Justice Sackville : I am not as pessimistic as you are. Of course there can always be an exacerbation of racism, and as a Jew I am deeply conscious of that. I have seen, of course, what has happened in Europe recently, and we know how easily that can happen. Nonetheless, there are ways in which change can be presented that make it abundantly clear that the elected representatives are not doing this in order to allow racism and hate speech; they are doing it in order to achieve a balance and, as I tried to stress in that paper, to reinforce the fundamental values of dignity, of respect and of avoidance of harm to people that underlie the legislation. It is just designed to achieve a better balance and is not an opening of the door to racism. I think that that is, again, if I may say so, what politics is meant to be about.

Senator McKIM: No disagreement there.

Justice Sackville : Judges are not very good at it.

Senator McKIM: Neither are many politicians.

CHAIR: One final question.

Senator McKIM: Sorry, I know we are just running a little bit late, but I do want to ask you this, considering that you have raised the balance between potentially conflicting rights. We are talking here, obviously, about the right to freedom of expression and also the right to live free from racial vilification and racism. We have heard a lot of evidence that, for people who experience racism, one of the effects of that is to make them more scared to speak out and share their views. Do you accept that there are two sides to the freedom of speech argument here, and the side that we often do not hear about—but we have heard significant evidence at this committee—is that, for people who experience racism, the effect of that is that they withdraw, they do not speak out as loudly as they previously did, because they are afraid of verbal or physical violence towards them?

Justice Sackville : I am not sure I have expertise to say how widespread that is. You have heard the evidence and I have not. I do not doubt that that is a response on some occasions. One of the justifications for free speech is of course that the free interchange of ideas leads to the truth coming out. That is one of the fundamental principles that is used in the First Amendment jurisprudence in the United States. I think that benefit is overstated, in fact, because we know that free speech, particularly in the age of the internet and instant communications, post truth and all that, puts the lie to some of that. So, yes, I think there is a risk of that, but, equally, part of the process is to provide the opportunity to people, and the education and everything else that goes with it, to exercise their rights and to respond in the vigorous way that critics do. It is not just racist speech that might discourage people. Concerted attacks, whether in the media or whatever, even well within the bounds of the law, may discourage people. There is nothing, I think, unique about the issue that you are raising.

Mr PERRETT: This is resubmitting a question that I do not think my colleagues asked. I know you have covered it in your speech and in your submission. The Castan Centre for Human Rights Law submission says, about removing 'offend' and 'insult':

… the removal of those words could send a much more dangerous message than it would actually convey in law. The political context and impact of the debate cannot be ignored.

The rolling back of a law sends a message, as does the passage of one. It can send the message that it is acceptable to offend and insult another person on the basis of their race.

I just want you to reconsider that. Would this change be worthy of doing, with all of the inherent dangers associated with it?

Justice Sackville : I think that is a consideration to take into account. My own assessment of it is that, although there would be some quarters that would see that as a victory for the opportunity to engage in offensive speech, that is not something that would outweigh the advantages of setting up the legislation on a sound basis for the reasons that I have put. It could be mitigated readily—well, perhaps not readily, but it could be mitigated—by the way in which the legislation is presented and by the way in which it is enforced, which would make it clear that any serious acts of hate speech and racism are well and truly covered by the legislation, with the consequences that follow.

Mr PERRETT: With an education campaign—

Justice Sackville : All of it.

Mr PERRETT: which is part of the commission's duties as well.

Justice Sackville : All of that, yes.

Senator PATERSON: I have one very quick final question. Comparing your proposal to remove 'offend' and 'insult', why do you feel that your proposal better achieves these balancing aims than removing 'offend' and 'insult' and leaving 'humiliate' and 'intimidate'?

Justice Sackville : It is a matter of judgement as to the wording. Parliamentary counsel have a very difficult job, and there is always an issue as to the precise language. What I have suggested, I think, is language that makes sense and is consistent within its own terms. If you just simply remove 'offend' or 'insult', I am not sure you quite capture the barrier that ought to be imposed, which is slightly different from what would result from the removal simply of 'offend' and 'insult'. What you need is language that is consistent in itself and capable of application. So, if you are going to amend, you may as well do it in a way that produces legislation that is consistent, coherent and readily understandable.

Senator PATERSON: Thank you.

CHAIR: Thank you, Justice Sackville, for appearing before us today and for your time.

Justice Sackville : Thank you very much for listening to me.

Proceedings suspended from 13:09 to 13:41