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

HUGGINS, Dr Jackie, Co-Chair, National Congress of Australia's First Peoples

LITTLE, Mr Rodney, Co-Chair, National Congress of Australia's First Peoples

SAUERMAN, Ms Sophie, Policy Officer, National Congress of Australia's First Peoples

[14:13]

CHAIR: I welcome representatives from the National Congress of Australia's First Peoples. I invite you to make a brief opening statement and then members of the committee will ask some questions.

Mr Little : Thank you very much. First of all, I acknowledge the support of the congress people and also the alliance whom we have been working with in terms of our resistance, I guess, to changes to the Racial Discrimination Act.

As an Aboriginal person who has suffered from racial discrimination pretty much most of my life I will draw from personal experience—and even as recently as in the last few weeks being addressed like this. Could I just, in my opening, highlight the few points that we think are most important in our contribution today. The three most prominent cases today involve Aboriginal people, and it is of grave concern for us that an inquiry be instigated to address things predominantly against Aboriginal people. You know very well the three cases that I mean, and they are Bolt, QUT and Bill Leak's cartoon. We are here to be a voice for those people who are unable to speak for themselves, who are more vulnerable, and are the most likely victims of racial hatred. We are also here on the basis of our key points about human rights. We acknowledge there are freedoms of speech but there is also freedom from racial vilification. We want to make those points very clear.

We also want to raise the point that the exemptions contained in 18C are broad enough and more than adequate to protect freedom of speech. Obviously, particularly with the adversarial legal system as a cornerstone of our society, the system has several advantages, particularly for a process to enable the disadvantaged to have the courage and grow the confidence to be able to make complaints. I think I will leave it with those few key points.

CHAIR: We will start with Mr Perrett.

Mr PERRETT: Thank you, Chair. I have a question to Dr Huggins. I think last year on Remembrance Day you spoke at the Australian War Memorial.

Dr Huggins : I did.

Mr PERRETT: It was a very good speech. You talked about your dad and how things have changed for Indigenous Australians. So I have a question about racism. Could you give some concrete examples of the harm that racism causes in your community or among the people you represent here as the national congress, but also could you talk perhaps about how things have changed, because 18C has been around for 20 or 21 years. In your speech about your dad you talked about his service—how he was treated after coming back from the war and things like that. Could you talk particularly about how 18C has perhaps changed things or not changed things.

Dr Huggins : Thanks very much, Mr Perrett. And thank you as well to the committee for being here. Yes, I did do the Remembrance Day speech in 2015 and spoke about my father's and my grandfather's war service as not yet citizens of their own country. They came back very shattered, as most soldiers did. Of course, post-traumatic stress was never diagnosed at that time. My father died when he was 38 and left a very young family.

Racism is still endemic in our communities. Every day we will hear of a family member or a member of our community being subjected to racism. In terms of how it has changed, I think that it has—

Mr PERRETT: If we think of '67 and then the Racial Discrimination Act and then 18C, I am hoping there is a better place being crafted, but it is obviously not perfect from what you are saying.

Dr Huggins : One would hope so, but it is still very much in communities and individuals to hurt and denounce Aboriginal and Torres Strait Islander peoples. Even my own family is subjected to it every day. Nineteen sixty-seven, of course, was the referendum that—

Mr PERRETT: I should declare that I think I taught some of your nephews.

Dr Huggins : You did indeed, at a school in Brisbane. We would have liked to have seen the racism factor dissipate for my nephews and for my son, children and grandchildren but, unfortunately, it is still very much in the minds of people who prefer to slight us and to hurt us. It is a pain, I guess, that you cannot acknowledge or know unless you are of that heritage.

Particularly for Aboriginal people since the 1967 referendum right through to the Racial Discrimination Act, there have been some protections around the call out of racism. We have felt very much that section 18C should not be changed or tampered with, because it is very much speech and beliefs and opinions that are quite hateful and unfounded, and it does hurt very deeply. It can scar people for the rest of their lives, and sometimes Aboriginal people just wear it as a second skin because we are so used to it—so used to the call out and what we are being subjected to. Unfortunately, it is just one of those things we live with, like chronic diseases and dying 10 years earlier than other Australians et cetera. But, for a very small minority group, we still believe that we are here and we have survived, and we just live every day with racism.

Mr LEESER: Mr Little, in your opening remarks you noted that some of the more controversial cases of recent times have involved Indigenous complainants, particularly the QUT case and the Bill Leak case. To what extent is there an understanding in Indigenous communities of the limited nature of the right in section 18C, and to what extent are bodies in Indigenous communities that are providing legal advice to potential complainants making people aware that the right is pretty limited? There has obviously been a number of highly successful cases for Indigenous plaintiffs in this particular area; I think of Campbell and Kirstenfeldt as probably being one of the high-water marks for that. I want to explore that question of the understanding of the more limited nature of the right.

Mr Little : Predominantly, the National Congress is an organisation that has been established for the pursuit of the status and the rights of First Peoples in the nation. Through our almost 9,000 individual members and our 180 organisations, we have an educational role where we educate and inform people that there is this legislation. If I reflect back on those 20 years of its existence, Aboriginal people were not complaining then but, since then, there has been an opportunity for them to take advantage of a process that is afforded to all Australians, particularly multicultural communities that experience racial discrimination and so on. Certainly we have an obligation to our membership and our communities to inform people; that is why we see more and more of our peoples using the process of 18C and being more informed about the legislation. But through reports like the Reconciliation Barometer we also see there are Aboriginal people who declare that they have been discriminated against but have not necessarily taken the approach of using 18C or the processes with lodging a complaint. There are many reasons why that has happened. One might be that they do not have confidence in the system, or they are confronted with the burden of following through a process when they just want to be able to verbally make these complaints.

It has taken a long time for people to have the confidence, particularly when you have been abused or other things are happening in your life. Making a formal complaint may be the last thing on your mind where survival might be the priority.

I think that we all in our society have an obligation to inform our brothers and sisters and our families. I also think that all Australians have that obligation to inform all Australians of the process that is available to all Australians when they feel as though they have been discriminated against or they have been hurt—and of the views of some that may be called the 'privileged' against others who are different.

Mr LEESER: I suppose I asked the question, in part, because you had raised it—those issues of the controversial cases—but also because we have had plenty of evidence in the last three days from Indigenous bodies of the level of racial discrimination and racial vilification against Indigenous peoples. There seems to be a large amount of that, and yet this right is a very limited, narrow right too. I just wanted to ask about the understanding of that.

In your submission, you note that the commission's power to dismiss complaints, with hindsight, should have been exercised in the QUT case. I wonder whether you would support a proposal to amend the Human Rights Commission Act to change discretionary powers to terminate cases, where the act says that the president 'may' terminate, to an obligation on the president to terminate cases that are trivial, frivolous, vexatious or misconceived? And I have added the idea of cases that have no reasonable prospect of success.

Mr Little : I think the idea, or the description or the determination, of what those kinds of vexatious or unreasoned sorts of things actually mean needs some consistency to enable one to dismiss a case because, as you go to the next step, it is virtually the same place for an individual to make an interpretation about whether they are vexatious or reasonable. I think it is probably worth exploring that, but I do not think so—we certainly object to the changes as they are because we see that many cases get through to a point of conciliation before they go to the next stage.

If I were to look at a balance between those which are determined as vexatious or whatever compared with those that get through conciliation, it is far greater and there is resolve in those things. So I think it might be worth it if we turn our minds to it, but we certainly would say that there should not be any action taken in this step.

Ms MADELEINE KING: Thank you for your submission and for coming in today, and for the service to your communities. It is a great service to the country and to your peoples.

Dr Huggins mentioned about a second skin that you develop, given the nature of your experience. Other groups have come here to this committee in the last few days, and I am also thinking of Mr Zaahir Edries from the Muslim Legal Network, who explained that for him as an individual and also for his community members, that because of the systemic racism they suffer there is a self-imposed higher bar that as individuals they have to overcome before they will complain—not only under 18C, but anyway. That second skin is water off a duck's back—which it should not be, but it is, because that is their everyday lived experience.

Given that that is the case—and I know that I am asking you to speak on behalf of your communities—what do you think of 18C and the Racial Discrimination Act and its effectiveness? Has it been worth it, if this is still the case?

Mr Little : I certainly believe that it is. It is a sign of a changing nation, when we know we are an evolving nation, that there is consideration for the people who make up society and what hurts them—what enables them to participate in society freely and without harm just because of their difference. I think it has been useful; it has very much served this nation quite well. I think the nation has been served and that serving has been internationally recognised. I think that it provides, particularly, for the first peoples of this nation to be duly recognised because we know what the history has been like. We have suffered those hard things from day one in this nation. As I said, I still continue to say, and Jackie has said also, that family today still feel that discrimination. We feel as though this has gone on long enough.

Where there is something that has served us, and will continue to grow, it is not because it is to do something different to others who have assumed privilege whereas the less privileged have an opportunity to participate equally in society. I think it has served us well. It probably will demonstrate much higher levels of complaints. Once people get used to the system and the procedures, from my perspective, that is a good thing.

Ms MADELEINE KING: Personally, it has been very revealing for me—I am a relatively new parliamentarian—in a committee like this to hear stories such as yours, and the young women and men that have appeared before us. I shudder to think what our country might be like without provisions like 18C if this is what it is like with it. Thank you very much for your answers.

Mr BROADBENT: Your organisation is also part of a broader coalition. Would you like to explain why you are part of that broader coalition and what brought you together over this issue, particularly?

Mr Little : The broader coalition—some of the members are here and you will probably hear from them today—

Mr BROADBENT: I noticed there are a few faces in the room.

Mr Little : We formed the alliance last time. We support one another because we feel the same sorts of hurts as each other when these kinds of things happen to us in terms of racial vilification and so on. A level of acceptance by a certain segment of society, or several segments of society, is pretty much what we all strive for in this nation: getting on and the freedom to enjoy what each other has—the equality. We have had similar experiences, as we have mentioned to you. Many of the different societies have felt and have lived experiences that are different to others. We support one another and that is the beauty of these guys that sit here with me today. You heard from them when we came to see you. It is pleasing that you have that kind of support from fellow Australians, and that you are able to stand with one another when you believe that there is inequality and there is freedom in this country that enables us to enjoy the same as others. We felt that that is really what this nation should be about: us joining together and supporting one another.

Mr BROADBENT: Yes, there is a place for us all. If 18C and 18D as they stand were removed or altered substantially would you feel, and would your alliance feel, like something is being removed from you that is a benefit to your organisation and to your people?

Mr Little : We feel that if it is removed it will take us back to square one where we may not have had the opportunities. Previously, the opportunities were there but maybe people did not have the confidence or the knowledge or were not educated about the process. We have to understand that people are more educated these days. I think I made that point earlier. We are more educated these days. Using my own personal example, I recall my teacher slapping me with a great big blackboard ruler and saying, 'You're a little black B, you'll never amount to anything so I don't know why you bother coming to school.'

Mr BROADBENT: I think I had the same teacher.

Mr Little : I do not think he said, 'You little black'—

Mr BROADBENT: No, but similar.

Mr Little : That has helped me from 1967 through to where we are now, with my own children growing up and my grandchildren experiencing racism on a daily basis. All my children now are going through a schooling system. It inspired me to stand up, be strong and speak up. But, as I said, today I still experience racism. It is one of those things. You all know the experiences—the good and the bad—that you have, and you feel quite nervous about going into an environment where you may be hurt, so you try to manage your risks in those certain circumstances. It is so difficult if you have a range of other things going on in your life, whether it is that you cannot get a job, you have a disability or alcohol or drug issues or a whole range of things. How difficult it is for someone who is being abused or who is not being provided or afforded equal service or equal opportunity. It makes it extremely difficult for people to live normal lives. That is the sort of impact.

If those sections of the act are removed it limits or shortens the numbers of educative processes that I can inform people of or that national congress can inform people of. The more knowledgeable and the more educated people are about processes—I think that is what has happened with RDA. When it came about 20 years ago people became educated and said, 'Okay, this is for me and I will use this because I feel strong enough that I have been discriminated against.' As I pointed out, with Reconciliation Australia's barometer, there are a huge number of people who have made statements or responded to surveys to say that they have been discriminated against but that they have not used the process or that they think that they may not, for various reasons, have confidence in the process.

Senator McKIM: Thank you very much for your very comprehensive submission to this inquiry and also for coming here today. You have spoken a little bit about your lived experience of racism. I have no doubt that you could sit here for weeks and go through, on behalf of your people, the lived experience of your people with regard to the impacts of racist behaviour on them. I wanted to ask you this: if section 18C were to be either weakened or removed from the Racial Discrimination Act, do you believe that incidents of racism against Aboriginal and Torres Strait Islander people in Australia would increase?

Mr Little : The short answer is yes.

Senator McKIM: Thank you. Dr Huggins, do you?

Dr Huggins : Yes, I do. We see it as a protection and as something we can go to in terms of receiving justice when we are discriminated against. If it is taken away from us I fear that the very massive under-reporting that goes on presently around racial discrimination will increase and we will have no recourse to be able to have any protections.

Ms Sauerman : If I could just add something to that, at the congress we are very concerned about the symbolic effect that weakening or removing 18C would have because we think that will send a message to the community that it is okay to be racist publicly, and that is what our communities have reported back to us.

Senator McKIM: That has been a consistent response right through all of the multicultural groups we have heard from. This is my last question because we are very short of time. We have heard evidence from a number of people representing minority groups in Australia that there are actually two sides to the freedom of speech argument here. I wanted to put to you the second side and just ask for your response. We have heard a lot of evidence from people experiencing racist behaviour against them that it actually acts to infringe on their freedom of speech and freedom of expression because they feel too scared and afraid to speak their minds and, if you like, put their heads up over the parapet because they are afraid that verbal or physical violence will be perpetrated against them as a result. Would that be an accurate statement coming from you? Would you just like to respond to that, in terms of freedom of speech of your people?

Mr Little : Yes. In our submission, I think we talked about the intent of those comments and whether those comments are well informed and accurate and are to stimulate a discussion. There are many different means to have a discussion or a public debate. Certainly, when people know that the national congress is around—or many other organisations—there are opportunities to have a reasonable discussion about raising a matter to be explored and/or to be brought to the attention of people who might need to be involved to change things in this process. But I think that, fundamentally, it comes down to the interpretation of the person making the statements or the comments, the assumptions they make of the environment, and the intent of what the comments are meant to do. Certainly, if it has an intention to harm somebody then, in all reasonableness, they should not say that.

CHAIR: Thank you for appearing before the hearing today.

Mr Little : Thank you for your questions.