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

CHEAH, Mr Kenrick, President, Chinese Australian Forum

O'DONNELL, Mr Chesney, Secretary, Chinese Australian Forum

PANG, Mr Anthony, Vice President, Chinese Australian Forum

VOON, Mr Patrick, Immediate Past President, Chinese Australian Forum

[15:41]

CHAIR: Welcome.

Mr LEESER: Chair, I should also say that I have been a member of the Chinese Australian Forum from time to time.

Senator McKIM: [inaudible]

Mr LEESER: This is what happens in the Liberal Party in New South Wales; they choose good people who are well-embedded in the community. Their former president, Mr Voon, told me I am the first member of the forum ever to be elected to the federal parliament, which would surprise people.

Senator McKIM: Congratulations!

CHAIR: I invite members of the forum to make an opening statement, after which members of the committee may ask some questions.

Mr Cheah : Thank you. We also make an acknowledgement of country and pay our respects to the Aboriginal elders on the land on which we sit here today. We would like to thank the committee for its invitation to speak today on this very important matter and also thank those of you who are not from Sydney and have come from as far away as Western Australia and Queensland, and Berowra!

Senator McKIM: Tasmania.

Mr Cheah : And Tasmania—who could forget Tasmania. I will give you a short introduction to our organisation. The Chinese Australian Forum is a non-partisan body established in 1985 to give a voice to the Chinese community in the political process. We are here to advocate for the Chinese Australian community on an issues basis, particularly on things like multiculturalism, and to raise political awareness amongst the Chinese Australian community. From the 2011 census data, 833,000 Asian Australian residents live in New South Wales—almost 20 per cent—and that number can have only grown larger since then. As the committee may have noticed, CAF and the UIA, whom you met earlier today, are the only bodies here representing Asian Australians. We would like the committee to take note that our experiences and views match those of other Asian Australian communities such as the Korean, Vietnamese, Filipino, Malaysian, Singaporean, Thai, Laos, Cambodian, Indonesia and many more. We are a united front. Asia is Australia's closest neighbour with countless social, familial and economic ties, so we hope you take what we have to say very seriously. The Chinese community is also one of the oldest in Australia in terms of migrant communities. As well as that, we have also been the target of racial discrimination over the years.

Our main reason for being here is to advocate for no change to the wording of section 18C. At a time of global instability, a time when both social media and terrorism are changing the world around us in different ways, a time when two young girls wearing burqas promoting Australia Day were met with insulting social commentary, and when, three days ago, the Sunday newspapers in New South Wales carried front page news of a possible neo-Nazi-style gun massacre in a suburban Westfield in Sydney, the Chinese Australian community strongly feels there is no need to weaken racial discrimination law. Racism should not be encouraged. We should be doing our best to eliminate it. My colleagues will continue the opening statement.

Mr O'Donnell : Again, thanks very much for having us, and we welcome you to our lovely state. There are a few issues that we want to bring up. There are probably four issues that Kendrick, our president, has already mentioned in passing. We believe that section 18C is already a good protector of free speech. We can probably talk about that a bit later. I am sure you have heard all the arguments. We believe that there are legal safeguards implemented already in our justice system—that actually helps out with civil litigation issues—and that the changes should be more procedural rather than legislative. We have put a position in our paper with respect to that as well. We looked at the Canadian example, too. Mr Leeser presented some interesting positions that we are quite open to. The whole Australian Human Rights Commission is more designed to conciliate rather than punish. It is designed to educate rather than to place individuals into an uncompromising position. We can appreciate that as well.

With respect to what Mr Cheah, our president, mentioned, in terms of a welcome to country, one of the historical aspects of sections 18C and 18D is that one of the inspirations for it has been the royal commission into Aboriginal deaths in custody and the report that came out in 1991. I think this historical fact has been missing. So not only to we want to pay our respects to elders past and present; we also want to pay our respects to those who died in custody under those awful conditions. I think the inspiration for sections 18C and 18D may have stemmed from that. That report may have been a catalyst. Obviously we are not experts on the report itself. We are here to talk more about what is occurring in our community.

Mr Pang : In terms of the report in The Australian, which highlighted that there should be a change because of the survey they had done, I personally get involved in settlement services—aged care, disability—and my contact with the Asian community is very strong. I understand how they feel. That conclusion is wrong. They took a sample of a thousand people online. There are two issues: have they included non-English-speaking Australians? People like myself are a minority. I am sure I was not included. What about the Indigenous people? I think the accuracy of that survey is totally wrong.

The other question is, in relation to the non-Anglo community, which is a high percentage—30 per cent or more are born overseas—are they included in the survey of a thousand? I personally think it is wrong.

The other question is that, interestingly, in the survey it states that the age group between 18 and 24 do not want a change. They are the future prime ministers, ministers and leaders of this country. They do not want a change. If we do change now, they will go back and change it back to the original again. So please consider that I do not think the survey is accurate.

Secondly, Amnesty International reported that 98 per cent of the cases referred through the Human Rights Commission were successful; they are very pleased with it so things are working well. We have a lot of cases in the Asian community of racial abuse, which I will table later on.

Mr PERRETT: Gong Xi Fa Cai.

Mr Pang : Thank you.

Mr PERRETT: I hope you have a good year. You have heard this question; I think some of you were here earlier. I was wondering if you could give some examples of the harm experienced by individuals in the Chinese-Australian community due to racism.

Mr Cheah : I will lead off with some general examples and then go into some specifics. This one is from your own state: a Gold Coast bus driver was obviously vilified and physically attacked by two young girls on his bus. Closer to home, Chinese students on the train to Rockdale were racially attacked and physically attacked. The Cronulla riots are well known for being seen as a white Australia versus Arabic Australia problem but at the same time many Asian Australians were also attacked during the Cronulla riots and that affected our community as well.

Mr PERRETT: I was not aware of that.

Mr Cheah : A lot of Asian families or young Asian groups would go down to the beaches around Cronulla for barbeques et cetera. They were also attacked and told to go back to their own country, back to their own area.

Mr PERRETT: Even though there have been Chinese in Australia since the 1860s?

Mr Cheah : That is right; they probably date back further than the people who were abusing them. There are various YouTube videos of a mixed couple being abused on a train to the Central Coast. There was a Korean cafe owner who was attacked on the Central Coast last year by two teenagers and ended up with heavy—

Mr PERRETT: Was it because of his or her race?

Mr Cheah : Yes, and told to go back to their own country and words to that effect. And also, for the record, we would like to state that it is well-known in criminal procedural stuff that the Asian community are very strong under reporters when something goes wrong. They do not like to cause a stir. They do not like to report, especially when small things like this happen. So what you see and the statistics that may be in front of you may not be indicative of the true picture of what may be happening.

Mr PERRETT: Would there be a significant awareness? I know you are not lawyers for the Chinese-Australian community but would there be a significant awareness of the avenues available under the Racial Discrimination Act, the section 18C opportunities that are available should they be racially abused?

Mr Cheah : I would say that is a difficult question to answer because our community—

Mr PERRETT: Would there be articles in Chinese newspapers? Would it be something that you would discuss around the water cooler, around the barbecue or that sort of thing?

Mr Cheah : On 18C, yes—now—because it has become a topical issue. But in terms of the community itself, you have your new migrants and you have your old migrants who have been here for 50 years. The ones who have been here longer obviously would have a better understanding of how the system works and of how they can get help. For the newer migrants obviously it would be less likely that they would know where they could get assistance from. The others have more detailed cases of discrimination against Chinese Australians.

Mr Voon : I could possibly add a bit to that. The Chinese Australian Forum is the only body in Sydney or New South Wales or even in Australia probably that deals with political discrimination and racism issues. The hundreds of other community bodies do not like to get involved in issues like this, which is why the Chinese Australian Forum is one of the very few bodies that will stand up.

In fact, we had an issue four years ago where we lodged a complaint with the HRC against broadcaster John Laws. He, in 2011, was actually sexist and he was racist. He mocked a female Asian driver in his morning program and we eventually complained. We took him to the Australian Human Rights Commission and we conciliated, but he was dodging me. He never once spoke to me. He dealt with me through a consultant, although I did speak to the boss of 2SM, Bill Caralis. He was apologetic, although he did not apologise. After weeks of running around, I got a phone call from his consultant saying that tomorrow he would apologise on his radio program, so we all thought, 'Okay, we'll listen to that.' Come the next day, he was frivolous. He did not apologise. He pleaded bad memory and that he could not recall saying anything like it. But if you dial up the online internet right now you can still hear it on ABC Media Watch. Anyone can listen to it, but he professed that he did not remember saying things like that, so he gave me the run-around. The process of dealing with complaints like this can be improved because the matter was not satisfactorily resolved in the end. We decided not to go to court with him for various reasons. I think that the complaint itself has done us good because we have been monitoring him and he has not again mocked Asians. So at least there is a process here, and we like it.

We are rock-solid with our community groups—the alliance they are talking about. The Aboriginal first peoples, the Jewish community, the Arabic community, the Armenian community and the Greek community are all rock-solid in saying, 'Please do not repeal or change the wording of section 18C because section 18D contains more than enough exemptions to make it work'. There are so many submissions received by the committee that say it is well-balanced and that there is no need to change it. If you change it, you will upset the balance, as my good friend Mr Peter Wertheim propounded. He explained that, and we do not believe there is a need and the case has not been made by the critics for a change, other than the fact that Mr Andrew Bolt was not happy about it. But two paragraphs of his comments were found to contain the wrong facts. It was overly aggressive, so section 18D did not apply to two paragraphs, and the two paragraphs are still available on the internet. That is not a very severe punishment. But we do not want to see anyone punished; we simply want to say, 'Hey, be reasonable. Do not racially abuse and vilify and mock other communities.' That is our message. Thank you.

Mr Pang : I deal with aged care and settlement services, and I do get verbal reports coming through that people have been humiliated and insulted, so in terms of 18C I believe the four words should stay because many reports I get are not reported in the press. For example, at the height of Pauline Hanson 20 years ago, we, with one of the main Chinese newspapers, Sing Tao, did a survey around Australia—it is the biggest Chinese newspaper in Australia—and we got thousands of complaints coming through from Queensland that they had been abused. The mud had been thrown at them at the height of Pauline Hanson's speech against Asians. Obviously, now it is against Muslims, so things have changed a bit. Nevertheless, I think there is that silent majority up there being abused on racial grounds, and it is not being reported. In dealing with settlement services, we do get that feedback. The main press does not report that issue, but we know about it.

In terms of other cases, we had Excelsior school in Castle Hill, where there were children being abused—things like 'I'll kill you'. We took it up with the New South Wales government and they said, 'Okay, we will increase the staff and start a counselling service.' That has happened, but right now I am not sure whether the counselling service is still going on. I know the Jewish community has run anti-bullying cases in school, and they are doing very successfully. I congratulate them for doing that. Other cases involve the Korean community in terms of experience in school, also the same thing.

In fact, during Pauline Hanson's time the Singapore military personnel in Townsville were spat on. At that time Winston Choo was the ambassador. I spoke to him. He said, 'Look, I'll take it up with viewers and the press.' I said finally, 'You've got to wake up, Winston; you've got to lodge a complaint.' He finally lodged a complaint—this is 20 years ago. This was in Townsville at the height of the Pauline Hanson situation.

As I have explained, personally I have experienced physical and verbal abuse. I have been here for 50 years. I put up with it. I respond to it. My English vocabulary is a lot better now; I can respond a bit better. I am more outspoken. It is just a matter of time.

Mr PERRETT: Some of the words that maybe aren't in the dictionary?

Mr Pang : Yes. There are a lot of cases of Asian students—you mentioned two. The other one is at the public school that was mentioned earlier. So there are a lot of cases that we can actually document, but I think it is important to retain section 18C and also emphasise 18D. We support Julian's—I call it 'Julian's law'—

CHAIR: I will now go to Senator Paterson.

Senator PATERSON: Mr Cheah, I was listening to your opening statement. You were going through some of the Asian communities in Australia that share your views on this one. This prompted my memory, when you mentioned the Korean community, because the Korean community in Sydney is actually a co-respondent in an upcoming 18C complaint, along with the Uniting Church in Ashfield, because they have erected a statue in memory of comfort women in World War II. The complaint was made by a Japanese-Australian community organisation. I am interested in your comment on that case, and if you have any thoughts about that case.

Mr Cheah : Tony is the expert on that because he is actually quite heavily involved in it; however, that case goes back, historically, through things like war. We are not talking about public comment that ridicules or offends or humiliates; it is something totally different, in my understanding of it. We are talking about people dying; we are talking about people being used as sex slaves et cetera. That is a whole different sphere of argument than this law.

Senator PATERSON: I am interested in Mr Pang's comments, but just to clarify: the complaint is under 18C. They are using 18C.

Mr Cheah : That is neither here nor there.

Senator PATERSON: It is kind of relevant, because we are considering whether 18C is well targeted enough.

Mr Cheah : If 18C deals with it, if it is adjudicated by the powers that be that 18C is meant to deal with it, then that is the law. If it is not, then it is not. So it is neither here nor there where they bring the complaint from—do you understand what I am trying to say to you?

Senator PATERSON: I do, but what we have to try to decide is this: is the law effective? You are right; if 18C deals with it then that is the law. But we have to decide, as parliamentarians, whether we like the law, whether we think the law is a good idea. If it caught a case like that, I am interested in your view about whether that would have any ramifications on your view on the law.

Mr Cheah : Whether I think that the Koreans should bring the law under 18C?

Senator PATERSON: Not so much whether they should, but whether anybody should be able to resolve an historical dispute through a legal process like this.

Mr Cheah : If I was in a similar situation—I cannot not comment for them because I have never been through what they have been through. Right?

Senator PATERSON: Sure.

Mr Cheah : If I had something similar to that, depending on the case, I may think that 18C might be the way to go. I could be thoroughly mistaken, by the same token though. Do you know what I am saying? That is what the law is for, isn't it—to be tested?

Senator PATERSON: Yes. And we might find out something about the law in getting it tested.

Mr Cheah : That is correct. That is why we would not pre-empt it.

Mr Pang : I understand that the complaint was lodged by the Japanese group, not the Korean group—is that correct?

Senator PATERSON: That is right, yes. The Korean group is a co-respondent.

Mr Pang : Getting involved with the Korean community, that was a human rights issue that they actually put up.

Senator PATERSON: I agree.

Mr Pang : They tried to erect a monument through Strathfield council, which, according to the policy of the council, it did not allow. So they approached Bill Crews. Bill Crews said, 'Yes; fantastic', because Bill Crews is a human rights fighter. He has said, 'Look, you can have the statute in my church—a private property.' The Japanese community object to it. I think it is a very small group that might gather, about 50 people in that group. Any protestor that would come from overseas would object to it. I think it is a very simple case—one of those simple cases that you deal with in accordance with what the rule is. Is it a judicious, small complaint which could just be knocked off? That is my understanding of it—my interpretation of it: I am not a lawyer.

Senator PATERSON: No, understood. So one of the reasons that you are supportive of Mr Leeser's recommended changes is to deal with cases like this—

Mr Pang : Yes.

Senator PATERSON: It sounds like that in your view it is trivial or vexatious. Is that a fair summary?

Mr Pang : Yes, I think so. And the other thing is that it is important that the three cases that are sitting here today belong to Indigenous people. I do not know how we got in there, but the three cases—the Andrew Bolt case, the QUT case and the Leak case—are all to do with Indigenous people. Are they being treated unfairly? That is a question. I ask myself, 'Why have they been targeted?'

Mr O'Donnell : Could I just add something? Senator Paterson, I think is a fair comment that you have just made, because this is part of the whole process. So often, when we deal with these types of cases there is always going to be an emotive element. It is hard to veer away from it. But the whole nature of having this hearing is to try to look at it as—I do not know that 'objectively' is the quite the right word because I do not want to delve into the objective test—

Senator PATERSON: Yes.

Mr O'Donnell : but to look at it in a way where we can maybe bring it back again and look at the procedural aspect of it. It might be a good point to make that in our submission we actually made a reference to the Canadian Human Rights Tribunal, which is a special administration tribunal that was established in '77. This is just an example, but it kind of fits into what Mr Leeser has suggested. Prior to these cases going to a court, maybe the issue is not so much legislative—again, if we can just emphasise that point—it is more procedural up to the point whereby these sorts of matters can be led into a court. That can be quite expensive.

Having said that, though, this whole debate is quite interesting. What I have noticed in our community and in the community at large—as you can see, I have an Irish name and a Chinese face so I am actually quite mixed, like our Chair—is that there is a certain confusion by the public about exactly what the problem is with sections 18C and 18D. The argument is predominantly about 18C offend and insult; that is fair enough, but we see 18C in companionship with 18D.

I understand that there is also the issue with respect to the outlier case—well, we think it is a bit of an outlier case—but the important case to recognise is the Prior v QUT case of 2016 and the length of time it actually took for Ms Prior and QUT to take that case on board. That time also includes the time it took for conciliation. But I might also add that it brings up some interesting questions about the statute of limitation, broadly speaking. For example—and we mentioned this in our submission—the Limitation Act in New South Wales has a variety of time frames for civil-related matters. I believe that sections 18C and 18D have been proven in court in the case of Qantas v Gama. It effectively said that there is no third balance of proof; discrimination law is under sections 140 of the Evidence Act, which is on the balance of probability.

So that has been established in our common law system. There is this confusion from our end; it is like, 'Okay, well, we have a common law system that really backs up these sorts of remedies and cases, and provides civil procedural rules in terms of no reasonable prospect of success.' This is why we thought the Circuit Court judge threw it out of the court. That was our impression; we thought, 'Well, the law seems to be working.' But listening to you and also, with respect, to Senator Reynolds, I can understand where you are coming from. You are trying to figure out if there is a problem with the law because it takes so long for a particular case to continue.

CHAIR: Sorry—in the interests of time, there are still a couple of people—

Senator PATERSON: Just one final, quick observation: thank you for that, I appreciate that perspective. You mentioned Canada a couple of times and so for your information you might be interested to know that Canada had a law that is almost exactly the same as section 18C. It is called section 13 of their Human Rights Act, and it was used against a conservative newspaper columnist called Mark Steyn—very much like our law was used against Andrew Bolt. Canada's parliament repealed the law as a result of that case, so it is certainly an example of a very similar law being repealed.

Ms MADELEINE KING: I will be brief—and it is more of a comment because some of the questions I had intended to ask have been asked. I had not thought of this particular person's history until your forum, the Chinese Australia Forum, came before us.

It was in the eighties in Western Australia that a particularly odious group emerged—the Australian Nationalist Movement—which was able to distribute, without restriction, propaganda leaflets that targeted Asians and were designed to intimidate Asians and Asian business owners and individuals. In fact, it ended up with the firebombing of Chinese restaurants and other Asian restaurants and businesses. I think the proponent of it, who I am not going to name, also, ultimately, committed murder. That was in the eighties. Since then, the Racial Discrimination Act as a whole, but also 18C, has been introduced, and I suspect we have not seen anything like that in Western Australia since then, thank goodness.

As I said, I had not even thought about it until you came before us. I do not really have a question; I just have a statement of my own reflection on the effectiveness of the act in that state. That kind of propaganda and horrible racist information is not allowed to be disseminated through newspapers and on car windows and things like that. It is more of a comment. If you want to follow up, you are welcome to.

Mr Pang : I am well aware of what happened because I was involved with it 20 years ago. Certainly the state legislation you talked about is tough. I think it prevents racism. I think it is good legislation. In fact I would encourage the New South Wales government to adopt that legislation wholeheartedly—the penalty clauses in that. Personally I think the New South Wales law is a bit weak compared to Western Australia's. I would say, yes, I agree with that legislation. It is probably one of the best in Australia, because—

Ms MADELEINE KING: It has got a reaction.

Mr Pang : Yes.

Mr LEESER: In view of the time, I will take your endorsement of that law and quit while I am ahead!

Mr BROADBENT: Chesney, Kenrick, Tony and Patrick: on Black Saturday eight years ago, after my address to the parliament, many of you invited me, through the Hon. Philip Ruddock, to come and speak to you. I just want to put on record publicly that we will never forget your empathy, your sympathy and your generosity.

Mr Pang : Philip Ruddock is still very active. In fact, he was walking around with the Premier just yesterday, or the day before, in Chinatown. He is still very popular.

Mr BROADBENT: Please say hello to him. I am one of his fans.

Mr O'Donnell : Can I just also add—and this is more for Hansard and for the record—that when we were conducting our research, especially with respect to section 18D, we came up with a few cases that demonstrated the effectiveness of 18D. One, which was unreported, was, quite ironically, Walsh v Hanson in 2000. In short, that case was more to do with copyright—did Pauline Hanson own the copyright to a particular book that the applicants found quite offensive in terms of its content? The copyright issue was an issue that Commissioner Nader took on—this was during a time when the commissioner was conducting tribunals. Pauline Hanson was actually absolved of it.

But Commissioner Nader said, 'Having said that, if this was an issue with respect to 18D, Pauline Hanson and the book that she has written'—I do not necessarily want to promote it, and it is probably out of print now; it was 'The Truth', I think—'would have fitted under 18D.' Her freedom of speech would have been protected under that particular provision because they had demonstrated 'good faith', 'in the public interest' and ensured an attempt to conduct research, which was what, in my understanding, Mr Bolt did not quite do in terms of conducting research when he came to analysing the so-called mixed-race Aborigines.

My respected colleague Mr Pang mentioned the Bill Leak case. I will be interested to hear Mr Leak later on. There was another case called Bropho v Human Rights and Equal Opportunity Commission, which dealt with a particular cartoon called 'Alas Poor Yagan', printed in the West Australian in 1997. Again, this is another case where section 18D protected the rights of the cartoonist, because it fell under the premise that this was a satirical work—

Senator REYNOLDS: I have to point out that it did take five years, so he went through five years of hell and an enormous amount of expense to end up being exonerated. This is one of the issues we have raised—that is an awful long time to be dragged through the courts to ultimately be exonerated, and it is a lot of money.

Mr O'Donnell : I totally respect what you are saying, Senator Reynolds. It is an awful process through the courts. We are looking at interesting issues here. Maybe there is a broader issue, with the Limitation Act. We are looking at statutory limitation issues to do with civil court issues that we mention on page 5—

Mr BROADBENT: If you want to have further input you might like to write further to the committee.

Mr O'Donnell : Not a problem.

CHAIR: We can take that in writing. Senator McKim, would you like to submit that question on notice?

Senator McKIM: Yes, please. I am keen to make a response to Senator Reynolds but in the interests of time I will not.

Senator REYNOLDS: If you went through that for five years, Senator McKim, you might have a different point of view.

CHAIR: I note that we are very behind.

Senator McKIM: I just make the point that most people who are found not guilty of serious criminal offences are put through years of hell as well and no-one is talking about repealing the crime of murder or rape. It is a ridiculous argument. Gentlemen, thank you for your presentation. We have had submissions from legal experts that there is no reasonable possibility of expanding the grounds on which the Human Rights Commission could terminate proceedings in the Human Rights Commission, and you would all be well aware of the existing grounds, which we have had evidence are quite broad. Are you suggesting that if that reform was made and the commission did exercise its new right to terminate something, there is no reasonable prospect of success, if that is the right phrase? You are not suggesting that someone should be barred from entering into the judicial system in the federal court—or are you?—as a result of the commission making that decision? I understand your position, Julian, I just want to test it with everyone else.

Mr Pang : No, we are not.

CHAIR: We thank representatives from the Chinese Australian Forum for their attendance here today.