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Parliamentary Joint Committee on Human Rights
Freedom of speech in Australia

WERTHEIM, Mr Peter, Executive Director, Executive Council of Australian Jewry


CHAIR: I now welcome Mr Peter Wertheim from the Executive Council of Australian Jewry.

Mr LEESER: Mr Chair, I should note that prior to my election to parliament I was a councillor of the Executive Council of Australian Jewry.

CHAIR: Thank you. Mr Wertheim, I invite you to make a brief opening statement, after which members of the committee may ask some questions.

Mr Wertheim : Thank you. I would also like to acknowledge the presence in the audience of my colleagues, who are leaders of organisations representing the Indigenous, Greek, Chinese, Armenian, Vietnamese, Lebanese and Indian communities. Despite our very diverse backgrounds, we are all proud Australians and want what is best for Australia. We do not approach this issue from a narrow sectional viewpoint or from the perspective of partisan politics. Many of these organisations have made their own submissions to this inquiry and have appeared or are due to appear before it.

At the outset, let me say that the ECAJ would welcome any reforms to the Australian Human Rights Act 1986 (Commonwealth) or to the practices and procedures of the Australian Human Rights Commission which would help to screen out manifestly unmeritorious complaints in a timely manner before conciliation occurs and which would strongly discourage such complaints from proceeding to court.

But any deficiencies in the process should not be relied upon to alter the existing important substantive protections under part IIA of the Racial Discrimination Act—the RDA. All of the community organisations represented here today believe that the provisions of part IIA of the RDA should at the very least be left in their current form or, if anything, should be strengthened to include protections in addition to those already provided, especially during troubled times like now, when political developments in Europe and the US are fanning the flames of extremism in Australia.

The contentions about political theory which are put forward by critics of part IIA, and of section 18C in particular, do not resonate with the lived experience of most members of communities like ours. From the Jewish people's own long and painful historical experience, we have learned that acts of racially motivated violence invariably begin with racist words. As Professor Greg Barton, a counterterrorism expert at Deakin University, was recently quoted as saying:

One of the things you want Australians to pay attention to is recognising that hateful speech and incitement to hatred in the political field is not just something that remains a political play. It has the potential to give people a sense of a green light to be more outrageous in their opinions and eventually those individuals have some sort of social license to try some sort of attack.

That is from Rachel Olding's article 'White supremacist threatened to shoot up Central Coast shopping centre', from TheSydney Morning Herald of 28 January 2017.

Even when Australia had no state or federal anti-racism laws at all, fully one quarter of all complaints received by the then Human Rights Commission under the RDA concerned racist statements, according to a report it published in 1983. Nothing could better illustrate the need for a peaceful legal mechanism to deal with such complaints and the danger that would be posed to social cohesion if such a mechanism and the laws that support it did not exist.

The demonstrated ineffectiveness of federal and state criminal provisions which are intended to proscribe the urging of violence on the basis of race further underlines the need for strong and effective civil remedies. Despite repeated assertions in the media that the words offend and insult in section 18C set the bar too low, the courts have consistently found that section 18C applies only if the offence and insult occurs because of the complaint's racial, ethnic or national background and only if it has 'profound and serious effects, not to be likened to trivial slights'.

The harms against which section 18C are directed involve a profoundly and seriously adverse impact on the complainant's quality of life. Even then, the conduct might be exempted under section 18D—something which critics of section 18C frequently overlook or downplay. Finally, we are not aware of any evidence whatsoever that the percentage of vexatious or manifestly unmeritorious complaints under section 18C of the RDA is higher than under any other statutory regime for relief such as the laws of defamation, copyright, consumer protection and trade practices.

Mr PERRETT: Thank you for your submission and for the good work you do for your community. Your submission mentions some of the harms that people targeted by racism experience. This is not a new question—I think you have heard me ask it already today. Could you expand on that and give me some concrete examples of the harm experienced by your community? What message would a change to the current provisions send to the community about the way racial minorities are treated in Australia?

Mr Wertheim : Some of the harms have been outlined in the annexure to our submission, and will give you some examples of quite virulent anti-Semitic hate speech which appeared in the media and social media. The effect that it has on our community is or should be obvious. The Australian Jewish community has the highest proportion, in percentage terms, of Holocaust survivors of any Jewish community in the world outside of Israel, so, typically, when something of a virulently anti-Semitic nature appears prominently in the media, I receive calls from members of my community, including Holocaust survivors or their descendants, complaining about it. It is hard to put this into words, but the general sentiment conveyed is: 'We thought we had left all of this behind in Europe. Australia has always been such a benign and tolerant country, and we have standards against racism. How can this happen? It has made us feel—'

Mr PERRETT: I have had it put to me once that suicide rates for Holocaust survivors and their children is significantly higher than the rest of the Australian community. I do not know where that data came from, but could I extrapolate then and say that if people were making racist comments about the Jewish community there could be more serious consequences?

Mr Wertheim : I have not heard that statistic before, to be honest—I do not know. I think that Holocaust survivors responded to their experiences in a variety of ways, but overwhelmingly in Australia they responded by starting new lives and making successes of their lives and relatively few of them lapsed into antisocial conduct, although one could hardly blame them if they did. I could not answer your question directly; I had not heard that statistic before.

Mr PERRETT: I think it was in the context of an article about Primo Levi, from memory, but my memory is not great.

Mr Wertheim : It is certainly not unknown in our community, as it is in other communities. To come back to your original question about the effect, you do get complaints of that nature and very emotional appeals to the ECAJ to do something about it, because people are hurting and they have an overwhelming recollection of some nasty experiences that occurred and that they experienced in their youth and which should really be no part of life in a free and just society like Australia. There was a second question you had?

Mr PERRETT: What message, then, would it be for your community? You have already covered it.

Mr Wertheim : It has already been canvassed in abundant detail.

Mr LEESER: For the benefit of the committee, your organisation is the peak federal representative body of the Jewish community in Australia and it is effectively elected, either directly or indirectly, by all the state bodies, which comprise every communal organisation in that state plus additional members of the community. That is fair to say, isn't it?

Mr Wertheim : That is correct and I should also say that the largest communities of Jews are in Sydney and Melbourne, so the New South Wales and Victorian state bodies are our biggest constituents. Each of those bodies between them would account for all of the major organisations in those states. That would be about 115 major Jewish organisations such as synagogues, Jewish schools, women's organisations, sporting organisations and cultural organisations. They all come under their umbrella and in turn come under the umbrella of the ECAJ. All of them have passed unanimous resolutions to say that sections 18C and 18D should be left intact.

Mr LEESER: Although you appear here today as a communal leader, your background is as a lawyer who specialises in discrimination law among other things, isn't it?

Mr Wertheim : Discrimination law was certainly one of the areas in which I practised.

Mr LEESER: It is true to say as well that you appeared in many of the successful cases involving 18C as the solicitor on record?

Mr Wertheim : Yes, I was the instructing solicitor on behalf of the complainant in the case of Jones v Scully and Jones v Toben. I acted for Mr Jones.

Mr LEESER: And cases in the commission when the commission used to determine matters as well?

Mr Wertheim : I had a number of cases which were successfully conciliated in the commission and also in the New South Wales Anti-Discrimination Board under equivalent state legislation.

Mr LEESER: Can I ask you about proposals, therefore, to remove the words 'offend' and 'insult' from section 18C and the effect that they would have on dealing with issues like holocaust denial and racist statements that have been the subject of those cases like Jones v Toben and Jones v Scully?

Mr Wertheim : It would basically mean that we would have to relitigate those cases or cases very similar to them. It took us years of legal action in the court to establish the legal parameters for the interpretation and application of sections 18C and 18D in those cases. Both of them were landmark cases: they are frequently cited in discussion about this whole area of the law and a great deal of time, effort and resources had to be put into pursuing those cases. Part of it was due to the fact that the initial cases had to be heard in the Australian Human Rights Commission at a time when it was thought to have jurisdiction to hear such cases and then had to be relitigated in the Federal Court when it turned out, due to a High Court decision, that the Australian Human Rights Commission did not have such jurisdiction after all. So that accounts for part of the delay, but these two cases where in many ways exceptional in our experience. Most of the time when we need to resort to part IIA of the RDA, it is in direct discussions with publishers or in rare cases it will be elevated to the status of a complaint to the Australian Human Rights Commission. Our experience has been that when there have been conciliations of that sort we have been successful and we have got a successful outcome, which has actually been a win-win for both parties.

Mr LEESER: Prior to the enactment of part IIA of the Racial Discrimination Act, what did your organisation do if it had complaints about matters like holocaust denial or racial vilification? What was available to it?

Mr Wertheim : All that could be done would be to approach the publishers of those statements, cap in hand as it were, and explain to them why what they had published was racist, why it was wrong and appeal to them to do the right thing. Now, in many cases that was effective but obviously in many other cases it was not, and it was done from a point of view where the balance of bargaining power, as it were, was very much against us and in favour of the publisher.

That is still the case, by the way, even with section 18C in place. Contrary to public perception, the balance of power is not with the complainant at all. In most cases complainants are just individuals who are motivated to act against racist conduct that has affected them. The respondents are not always but very often well-resourced media corporations, social media companies and so on. That was certainly my experience in the most recent conciliation that we concluded for a complaint against a major global social media platform company. Again, it was successfully concluded, but they had batteries of lawyers and we just had us.

Mr LEESER: Despite being a proponent of section 18C as it currently stands, I want to ask you a couple of things about some suggestions about the section 18D tests that have been made by witnesses who were here earlier today, some of which I think you were in the room for. I wondered if you had a view about former Justice Sackville's view about the test of the reasonable person—the reasonable Australian test as opposed to the reasonable subgroup test—and also Jonathan Holmes's view about the test being reasonable and in good faith and not the test that was applied in Bolt.

Mr Wertheim : As I understood them both, they were saying that there should be some truth type defence for a section 18C complaint and that that should be incorporated somewhere in section 18D. I think what they fail to appreciate is that, if you make truth a prerequisite for a defence under section 18D, you would be setting the bar impossibly high for the respondent.

Mr LEESER: I think their idea was more to do with fair comment as it applies in defamation more than truth.

Mr Wertheim : I think there is very little difference. I am not fully across all the technicalities of the fair comment defence but, if something would pass a fair-comment test, generally my understanding is that that would go a long way towards satisfying the 'reasonable and in good faith' test as well. The elements of honesty and honest belief that are part of the fair-comment test are also incorporated in the jurisprudence about what 'reasonable and in good faith' means. There is both a subjective and an objective element to the 'reasonable and in good faith' requirement. I think that is a fair balance. The fact that somebody subjectively believes, for example, that Jews control the media and the banks—say they genuinely believe that out of paranoia or for any other reason—does not necessarily mean that they hold that belief reasonably and in good faith. There has to be an objective element as well.

Mr LEESER: What about the application of the test—whether it should be the reasonable person in the Australian community or whether it should be the reasonable person in the relevant community affected by the particular act?

Mr Wertheim : I have to confess my own thinking on this has evolved over time. I am concerned that having a more general test is not justified by the decided cases. Firstly, I do not think there has been any decided case that would have been decided differently if there had been a more general standard as compared to the standard that has been applied. But, more generally, I am concerned that a general community standard test might inadvertently import prevailing prejudices in the community into the test so that one of the protective functions of 18C would be abrogated. One of those protective functions is to protect vulnerable and, in particular, unpopular minorities. So if there is prevailing prejudice against a minority community which happens at the time to be unpopular—and many of our communities that I mentioned earlier have been, at various stages of Australian history, in that category—then there is a danger that the application of a more general community standard test will undermine the basic protective function of the legislation.

Mr LEESER: In the submission you have endorsed the proposals that I put forward in my speech to the Chinese Australian Services Society around security for costs for people taking the decision of the commission to terminate a matter to court and having a 'no reasonable prospect of success' test. A number of witnesses who have appeared before us have made comments about those things and have been questioning some of those things. I wondered if you might explain why you support those particular measures.

Mr Wertheim : I think the test should be whether the complaint is manifestly unmeritorious. Reasonable minds can differ about whether any kind of legal complaint is meritorious or unmeritorious, but if it is manifestly unmeritorious and there is a considered legal opinion to that effect then I think that should be grounds for terminating the complaint before the commission. Obviously, as has been pointed out by other witnesses, that cannot stop a determined complainant from proceeding to court nonethelessm, because any measure that purported to do that would probably amount to an exercise of judicial power and therefore be unconstitutional.

However, if there was a procedure in place whereby a complainant with a manifestly unmeritorious complaint was advised early on in the process that that was the case—that it did not meet the stringent legal requirements set out by Justice Kiefel in Creek v Cairns Post, for example—I think that, in the vast majority of cases where you have a complainant with limited resources, that would be a deterrent to proceeding further with the claim. If they were nonetheless determined to do so, one could then invest the Federal Court or the Federal Circuit Court with a discretion to order security for costs in those circumstances to protect respondents, such as the students in the QUT case, from being left in the position where they are being unfairly pursued in the courts and have no remedy.

Ms MADELEINE KING: Thank you, Mr Wertheim. Thank you for your service to your community and to the Australian community at large. We met Mr Jeremy Jones yesterday, who I think you have acted for, and it was very good to hear from him and Dr Colin Rubenstein. I would reiterate your point that you made following Mr Leeser's question about codification—that when we change the law it means we start again, and this is exactly what Mr Jones said yesterday. I imagine that that is one of the very real risks of codification. Would you agree with that?

Mr Wertheim : I do. I would add this point: codification is usually used when there is an ambiguity or a gap in the law or some conflict in the judicial opinions. That is not the case with regard to part IIA. The judicial decisions are remarkably consistent, so I do not see the need for codification. The other danger I see in proceeding down that path is that what may begin as an intention to codify existing case law does not actually get translated as such by the parliamentary drafts person and you end up with a de facto amendment with unintended consequences. So I would voice those two additional caveats.

Ms MADELEINE KING: I know my concern is that if we put in a definition of 'offend' and 'insult', and include the words 'mere slights', we would be no doubt having competitions over how to define 'mere slights' and 'profound'. It goes on and on. My other question is much more general. This came up in 2014—the bill that the Attorney-General put forward. I know that Joseph Camilleri in Victoria expressed quite strident surprise that this debate over 18C and the Racial Discrimination Act has come up yet again. Could you provide an insight into the effect that that debate in 2014 and this debate now has had on the community in which you live?

Mr Wertheim : We are surprised that we have to have this debate at this time. Australia has evolved very much for the better in most ways as a community over the last 20 or 30 years. There are not only legal standards against racism that are enshrined in legislation but also, I think more importantly, a better understanding in the community, particularly in younger age groups, about the very real harms—the demonstrable harms that have been supported by solid evidence—that flow from racist speech. So it is a disappointment to a lot of us that we yet again have to go through this exercise and explain why these laws are necessary, why they are not an unreasonable impingement on free speech and what effect they really have.

Nonetheless, one of the benefits of those debates, I think, has been that the public has become a little bit more aware not only of the laws themselves but of just how reasonable and moderate they are, and that the balance between 18C and 18D is probably as good a balance as has been achieved anywhere in the world. I think that process of education is the one bright spot in the whole thing. But it is a shame that this has become—and I agree with the previous witness when he says that this has become—a partisan issue. This is far too important an issue for the future of Australia to be the subject of base party political rivalry.

Ms MADELEINE KING: Thank you very much.

Senator PATERSON: Thank you, Mr Wertheim. I completely understand why, even in as you say a quite harmonious, tolerant society in Australia, given the unique history of the Jewish people, many Jews feel that they need the protections of a law like 18C. What I am interested in exploring though is that, after Israel, the country in the world that more Jews have gone to and feel most safe in is the United States. Between five million and six million have done so, depending on which measure you take—and the United States, by virtue of the first amendment, has no laws like 18C. Indeed, any law like 18C, were it proposed in America, would very likely be unconstitutional. Why is the United States able to be such a safe haven for Jews without a law like that while Australia is not and requires a law like this?

Mr Wertheim : The United States has, I think, a very large Jewish population. At the last count, it was something between 5½ million and six million people, which is about three per cent of the population, or very close to it. In Australia, the Jewish community amounts to 0.5 per cent of the overall population. That is one aspect. I guess the other is that in the United States most of the Jews who arrived there in the late 19th century or early 20th century have now produced children and grandchildren and great-grandchildren and so on, so they are now into their fifth or sixth post-immigrant generation, whereas here in Australia we are still in our first or second, with maybe the third coming along. So it is a very different milieu, a very different political climate. In the United States the civic culture against certain forms of racism is very, very strong. For example, if you say the 'n' word over there, that is universally regarded as almost provocative of a criminal response. Of course, it is also viewed in a very negative light in Australia now, but that has only just recently started to develop.

I cannot explain to you in detail why the difference in political cultures results in different feelings of security or different levels of hate speech. All I can say is that the Jewish community in the United States is much more powerful, more well organised, better resourced and better able to defend itself in other ways than the Jewish community in Australia. We are not completely defenceless in Australia, and we do have some levels of organisation—

Mr PERRETT: You are doing okay with political representation.

Mr Wertheim : Yes, we do okay sometimes, and we are generally, as a community, regarded as well established. There have been Jews in Australia since 26 January 1788, so I cannot complain about that. We have had two Jewish governors-general, an Australian overall military commander in World War I who was Jewish and many other—

Senator PATERSON: And a High Court justice, and the only other country which is—

Mr Wertheim : Yes, we now have a High Court judge—

Senator PATERSON: I believe that is rare in itself.

Mr Wertheim : for the first time since Sir Isaac Isaacs. So, overall, the Australian Jewish community is well integrated and does regard Australia as a very benign environment and a very good country to live in. We are very grateful for that and we try to give back as much as we can. Overall, however, there is no comparison between us and the Jewish community in the United States, and I think that is probably the answer to your question.

Senator PATERSON: I really appreciate you making the point about civil censure, and the role it plays in shutting down these kinds of attitudes and values. Do you think the combination of civil censure in Australia and an amended 18C, which would still go far beyond any protection that exists in the United States, would be sufficient?

Mr Wertheim : No, I do not. And the evidence of that is the fact that we still have to sometimes take on even mainstream media organisations and explain to them not only that what they have published is anti-Semitic but why it is, and sometimes they are very slow to understand that. In the United States, I think the understanding would be there all along. It would be almost instantaneous.

A few years ago, during the last hostilities in the Middle East, there was a cartoon published by Le Lievre in The Sydney Morning Herald which—putting to one side the political message of the cartoon, which I will not go into—portrayed one of the characters in a stereotypically anti-Jewish, anti-Semitic fashion. It took 10 days for the senior editorial writers and journalists at the Herald to finally acknowledge that this had crossed the line. So I do not believe our civic culture is mature enough to automatically say that you can always rely on people to do the right thing.

Senator PATERSON: You have my entire agreement and sympathy on those issues. I think another very good example is the Leunig cartoon that compared the Holocaust to what happens in the West Bank and the Gaza Strip in Israel. Nonetheless, there was social censure on those things and they were withdrawn and apologies were made. I appreciate your perspective that we are not as advanced as the United States yet in that area. Do you think we could become so?

Mr Wertheim : Hopefully in time that will happen, but I can tell you in the case of that cartoon I referred to earlier it was not just social censure. There was the threat of litigation, and it was racial vilification litigation that was being threatened.

Senator McKIM: Under 18C?

Mr Wertheim : It was actually under the equivalent state legislation, the New South Wales Anti-Discrimination Act, section 20C.

Senator McKIM: Thank you, Mr Wertheim, for your very comprehensive and well thought out submission. I want to go to a very small part of it, and I think Mr Leeser referenced this. I want to go to your views around providing, in certain circumstances, for the provision of security for costs. I will paraphrase your submission, as I understand it. You are suggesting that there be an extra step inserted into the process, where if a judicial member—who presumably would have to be a judge under the Constitution, rather than the way the commission is currently structured—were to make certain findings, the court would have discretion to order a complainant to provide for security for costs.

I am sure you have thought about barriers to accessing justice in arriving at this position, and I am assuming you have landed there because you think that is a reasonable balance between the rights of someone defending a matter here and barriers to accessing justice for someone who wants to avail themselves of those opportunities. Are you concerned that the barriers to accessing justice, even in the limited circumstances you have allowed for here, is still too high?

Mr Wertheim : It might be, but I think that the number of cases in which that kind of sanction would apply would be very, very small. A respondent would have to go through several hoops before it came to getting an order for security for costs against the complainant. One would be: there would have to be initially an advisory opinion from the president of the Australian Human Rights Commission to the effect that this is a manifestly unmeritorious complaint. The effect of that would then be to terminate the complaint before the commission. There would then be an option by the complainant to proceed with the complaint nonetheless, which would then have to go to a judicial member. That process would then result in the judicial member, if he or she agreed with the president's opinion, publishing an opinion to that effect, and that would be after a more exhaustive process of inquiry than the first opinion. And only then if the respondent is successful in having those two independent inquirers come to a conclusion that the complaint is manifestly unmeritorious would it be possible for the respondent to apply to the court, if the matter then proceeded to court, for an order for security for costs, and even then it would be subject to the court's discretion.

Senator McKIM: Would that middle step only be at the initiation of the respondent or, in your view, in those circumstances would that be an automatic—

Mr Wertheim : No, it would have to be at the initiation of the complainant. If the initial complaint was terminated before the commission by an opinion of the president, it would have to then be at the option of the complainant—

Senator McKIM: The respondent.

Mr Wertheim : No, the complainant to proceed with the complaint.

Senator McKIM: Yes. So the complainant decides they want to proceed, but would the middle step only be initiated by an action of the respondent to have it tested in that middle step? The complainant is not going to go to that middle step voluntarily; they are just going to want to get straight into action.

Mr Wertheim : No. What we envisaged was that the complainant, by notifying the commission that the complainant would opt to continue the complaint, notwithstanding that it had been terminated before the commission, would trigger the step. So the respondent would not have to actually do anything; it would just happen automatically.

Senator McKIM: Thank you, I understand.

CHAIR: Thank you, Mr Wertheim, for your appearance before the committee today.