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

WILLIAMS, Prof. George, Private capacity

TWOMEY, Prof. Anne, Private capacity

[16.18]

CHAIR: I welcome Professor Williams and Professor Twomey. I invite you to make a brief opening statement, after which members of the committee will ask questions. In the interests of time could you please limit the length of your statement.

Prof. Williams : I understand; I will certainly be brief. Thank you for the opportunity of making a submission to this process. My view is that section 18C as currently worded is over-broad. I think Mr Leeser's submission is correct in saying that one of the main problems with the provision is in fact that people perceive it to have a much broader application because of its wording than it actually has. I think it would be wise to bring the section into line with the actual impact that is had in the courts, that is of a higher threshold than the words 'offend' and 'insult' might suggest. It is important wherever possible that the law accurately reflect its operation, which is not strictly the case here.

The second thing I would say is that even though I do see an issue with section 18C I think it is a very weak example of a much larger problem—that is, that there are many, many laws on the statute book which seriously infringe freedom of speech in Australia. I think this committee should be looking at those broader examples which, rather than this section, actually impose very significant criminal penalties, including on journalists, in circumstances where they might be gaoled for transmitting information that is clearly in the public interest. My view, having looked at over 350 laws on the statute book, is that there is a very broad problem in Australia about free speech protection, and personally I would like to see action which addresses the larger problem in addition to section 18C.

The third point I make goes to how to address that larger problem. It is almost impossible to deal with an endemic free speech problem of the kind we have here through ad hoc changes to individual statutes. We only have to look at the effort put into amending section 18C to realise how difficult it is to amend any one statute of this kind. The proposal I put forward in the submission is that just as we have statutes protecting people from discrimination, indeed a range of statutes protecting people in respect of specific rights, so too should we have a countervailing statute which very clearly and generally provides protection for freedom of speech. That would act as a counterweight to not only section 18C but a range of other statutes and unable a holistic solution to a much larger problem than section 18C presents.

Prof. Twomey : I would like to start by saying that I agree with George in that the act should say what it is actually taken to mean by the courts. There is currently a chasm between what it is says and how it actually needs to be interpreted by the courts to maintain its constitutional validity. The second point is that the exclusions in section 18D are important but sometimes ineffective, and that is because of the interpretation of the word 'reasonably'. If the word 'reasonably' is taken to exclude 'insult' or 'offense' then the exemptions in 18D are ineffective and something needs to be done about that. My final point is that care needs to be taken that any change that does occur in the law is not taken as a licence for people to abuse, intimidate or threaten other people. There are many other laws that are addressed to such actions, and those laws continue to apply. People should be educated to make sure that they understand that any changes that are made are not a licence to behave in that way.

Mr PERRETT: It is reasonably settled, as per Kiefel's comments. Are both of your positions?

Prof. Williams : Do you mean in terms of the interpretation of section 8? I think, as Anne has indicated, it is clear that section 18C has been interpreted only to apply to serious forms of speech, not mere slights. That is because not only is that the statutory provision, as it has been interpreted, but, constitutionally, if the courts went further than that, as Anne's submission makes clear, it could well be struck down. So the courts are constrained as to what they can do in this space in any event.

Mr PERRETT: So if it was codified it would make the meaning of the section clear—I think that is your submission, Professor—

Prof. Twomey : Yes.

Mr PERRETT: Do you agree with that?

Prof. Williams : I do. I strongly believe that where a law is an operation it should clearly state its actual operation without requiring us to work through court decisions to understand what it actually means in practice.

Mr PERRETT: We would then have to wait for the judicial consideration of these changes to get rid of the uncertainty, wouldn't we?

Prof. Williams : I do not think so. I think what is being suggested is: you would, essentially, codify what the courts have said it means. You have Justice Sackville's suggestion which sets a high threshold, I think, consistent with what courts are saying, and other suggestions as well. I think, as often happens with statutes, if, essentially, you are trying to build more accurately into the law how it actually operates then that should achieve a reasonable degree of certainty from that point.

Prof. Twomey : The other point to make there is that it is an educational exercise. In the end, it is not really the courts that you are trying to convince here. The courts have already held it to mean those sorts of things. What you are trying to explain is for the people who are bringing these sorts of complaints so that they know what they can bring a complaint about. So it is affecting at the very beginning point. It is also affecting the Human Rights Commission as well in terms of the way that it deals with the complaints. So it is directed at the front end rather than at the judicial end.

Mr PERRETT: So we have the parliament, the government sending out a committee to every city to hear from witnesses all around Australia—you know, hotel costs, plane trips and all this—when, really, we should be putting money into an educational campaign about what the law actually is as interpreted by the judges. Is that what you are saying, Professor Twomey?

Prof. Twomey : Not necessarily. I think the education comes from the law itself. The problem is: if someone picks up the law and reads it, it says, 'Oh, if I'm insulted I can bring these section 18C proceedings,' whereas, in fact, it does not really mean that at all, and the courts have interpreted it differently. But, if you are a person off the street, how are you supposed to know that? You cannot. So the law itself in its terms provides an educational function. And, so, changing the law can affect the way people deal with initiating these complaints, because then their expectations at the beginning are met by the way the law actually operates.

Mr PERRETT: You are both very well respected constitutional experts and political commentators. I put to you a quote from the Castan Centre for Human Rights' submission, with a comment on removing 'offend' and 'insult'. It says:

… 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.

Are you concerned about what might happen to communities? I know you have not been here all day, but we have heard from many groups, particularly ethnic minorities, about the implications of changes to 18C.

Prof. Twomey : As I said in my opening statement, I am concerned about that. I think that is a real issue and I think it needs to be made clear that there are many other laws that exist. When I went looking for these, I found a law—I think it was a regulation—in New South Wales about offensive behaviour on buses, on public transport. Some of the most offensive things are the people screaming and hurling abuse at people on buses. Well, that is actually a criminal offence under the New South Wales law anyway, regardless of whether you are hurling abuse on the basis of race or numerous other things. What people need to be aware of is the fact that 18C is not the be-all and the end-all in this; there are lots and lots of other laws that deal with offensive and abusive behaviour. What we really need to be trying to balance here on the one hand is the sorts of behaviour that involve abuse, intimidation, feelings of threats or encouragement towards violence—those sorts of things which I think everybody can accept should be made criminal—and on the other hand things that are said that may be regarded as insulting or offensive or whatever but fall more broadly within that sphere of political communication or communication of ideas and debate in society. They are two different things, and the difficulty with this law is trying to get the balance right between them.

Senator PATERSON: I am interested in both of your responses to these questions, particularly about the Sackville proposal on one hand versus codification on the other. I do not think either of you were here when he was here. He was open to both ideas but my sense of his answer was that he preferred his own proposal rather than codification because it would both help clarify what the courts have done and raise the bar at the same time. And it was those two things he was seeking to do. I am interested in each of your views. What is more important, or where do you lean? Is it to just codification for clarification purposes or do you also want to raise the bar at the same time and that is why you have each lent some support to the Sackville proposal?

Prof. Williams : My view is that the starting point is clearly that it should say what it means, and that gives rise to codification as the starting point. But I am someone who perhaps gives greater weight to freedom of speech in this context than some others might, so I am comfortable with his proposal. I put it in my submission because personally I do think that it would be appropriate to raise the bar a little in this context. I think also that, as Anne has indicated, that is with the knowledge there are many other laws that actually have a more direct impact in this area and, frankly, are much more useful in this area, because of their targeted nature. It is appropriate that we have those laws. I think if we did that hopefully we would move beyond a debate that has so fixated on a provision with so many years of attention to it yet it actually is not that significant a provision in many ways, compared to what others are actually achieving in this space.

Senator PATERSON: Agreed. Thank you.

Prof. Twomey : I also think that codification and raising the bar are effectively the same thing. One of the problems is that the courts, in interpreting it, have set the level higher, and you have to set it higher for the purposes of the Constitution, because, if you do not, then the provision is going to be invalid. So what you need to do is have it set higher and made clear that it is set higher, if you know what I mean.

Senator PATERSON: Agreed. This is a fine distinction, I appreciate, but codification would not raise the bar in terms of the application of the law, only how the law appears to people. So, if all we are doing is importing the standard that the courts have applied into the legislation, then the next court case presumably would be the same as the last court case; it would apply in the same way. So what I am interested in your view on is: is that what you are seeking to do or do you also at the same time want to raise the bar of how the law is applied?

Prof. Twomey : I just need to get clarification. When you say 'codification', you mean no slights—that sort of thing—

Senator PATERSON: Exactly, taking the Kiefel—

Prof. Twomey : and when you say 'raising the bar', you mean removing altogether 'offend' and 'insult' and having—

Senator PATERSON: Not necessarily, but just requiring a slightly higher standard to prove a claim. To explain: Justice Sackville said that his proposal would make it slightly more difficult to have a successful 18C claim.

Prof. Williams : Because you are moving from a subjective to a more objective test.

Senator PATERSON: Yes. That was one of the reasons, but he also thought that the four words that he had chosen over the four words that exist currently better target that kind of racial abuse and vilification, rather than what the current law as applied has done.

Mr LEESER: I am quoting from former Justice Sackville's submission to us today: 'The legislation should be confined by substituting for the current language—"to offend, insult, humiliate or intimidate"—a more demanding standard, which could be "to degrade, intimidate or incite hatred or contempt",' and 'The legislation should incorporate an objective test for determining whether the hate speech is likely to have the prohibited effect, thus requiring the courts to have reference to the standards of a reasonable member of the community at large.' They are Justice Sackville's proposals.

Senator PATERSON: Professor Twomey?

Prof. Twomey : I am happy with the objective test over the subjective test. I think that would be an improvement. I am also happy with Justice Sackville's wording. In fact, I think I quoted it in my submission. I should add, by the way, that George and I did these completely independently and picked up on the same thing, which is an interesting coincidence. Having said that, I am not completely wedded to it. I think there are other words that you could use as well. I do not have a preferred set of words of my own. I think I am reasonably flexible on that.

Senator PATERSON: Thank you. Professor Williams, could I get your view on the objective versus subjective test?

Prof. Williams : I would prefer to move to an objective test in this area again because I would like to see stronger protection for free speech in this context while still preserving this for serious cases that are serious as they relate to general community standards.

Senator PATERSON: Thank you very much.

Senator McKIM: I should place on the record that Professor Williams has provided me with constitutional legal advice in the past. I just wanted to put that on the record. It was in regard to marriage equality.

I want to go to the issue you have just been discussing with Senator Paterson. It goes to codifying the way the courts have applied 'offend' and 'insult' to date and codifying that, or raising the bar in the legislation. I think, Professor Williams, you have said that you favour raising the bar slightly because—I am paraphrasing here—you would like to prioritise freedom of speech.

Prof. Williams : More than it is, while still recognising the other values are important, so you would certainly not remove the provision itself.

Senator McKIM: I understand that. Professor Twomey, in terms of the balance between competing rights here—rights to freedom of expression and rights to be free of racial vilification, if I can summarise it like that—are you of the same view as Professor Williams in that the balance is not quite right and should be shifted a little bit more towards freedom of speech?

Prof. Twomey : I am inclined to that direction, although I cannot say that I am firmly positioned. The thing that keeps coming back to my mind is the concern about the abusive, intimidatory behaviour. I have no trouble with the notion of banning that. But, on the other hand, with respect to the political communication that may involve perceptions of insult and offensiveness from some quarters, I think that greater freedom of speech needs to be allowed there. So it is trying to work out where the line is between those—which is, of course, phenomenally difficult.

Senator McKIM: It is, and I think it is fair to say that, collectively, the committee is grappling with that as one of the central questions that we are considering. Professor Williams, you said that you think we need to shift the balance a little bit towards freedom of expression. It is almost a philosophical question, really, but why is it that you think freedom of expression ought to be prioritised a little bit more? I know you have not been here, but we have heard horror stories from racial minority groups about the impacts of racism on their members, and that is lived experience for many Australians at the moment. Are you able to respond almost in philosophical terms, or in any terms you like, really—

Prof. Williams : I will do my best. I understand, sympathise and believe that the law needs to accurately and properly respond to those concerns. But, equally, as a lawyer I am sceptical about the ability of something like section 18C to always solve those sorts of problems. In fact, it is often quite ill-directed, I think. You see that in the success rate, indeed, of some of these matters in court. It is invested with this status that it is able to deal with a range of things that, frankly, it is not. It is because it actually does not mean what it says, because it does not have the operation that some of those opening words would suggest. It also provides a process that does not always provide the outcomes that people looking for.

I also believe, on the free speech side, that there are many examples in our system where there has become a permissiveness in parliaments to undermine free speech in many, many areas. It says a bit to me that, just behind this building, in the Domain, the Speakers' Corner—which has long been a hotbed of oratory—is subject to an 18C-like offence. You can be fined there for insulting someone or offending someone. This is one example of a generic problem, I think. I think it is important to address that because, whether it be freedom of the press or other areas, I think it is important to be consistent. Even though I acknowledge those concerns, I think we ought to be giving due weight to free speech in a way that we are not currently doing with the laws that we are passing through our parliaments.

Senator McKIM: Could that be achieved by changes to 18D rather than changes to 18C?

Prof. Williams : Not sufficiently, no. I think one of the problems here is an educative one. If you were reading a section, you fix up on the words 'offend' and 'insult'. As a lawyer I can see how it is interpreted; I can work through the cases, but I think there is a problem when a law is on the statute books that suggests a particular operation which is not borne out in practice. Again, I think it gives false hope and expectations to people, as well. Having looked at some of the submissions in this inquiry, I think they perhaps do not fully understand just how limited an operation this has. You can maintain what is a bit of a fiction about how far it extends, that the media has successfully fuelled, by giving a sense of grievance to a provision that suggests an operation beyond its actual operation—or, much better, to have the operation reflect what it does. As I say, it should say what it means, and it does not do that at the moment.

Senator McKIM: I have no argument in terms of legal and legislative theory. I would lay the blame more with wilful misrepresentation by some elements in the media and some commentators rather than with the law itself. My last question goes to Mr Perrett's point: the world is a very interesting place at the moment. There is no doubt that racism and xenophobia is on the rise in many Western democracies around the world. We have to balance the public interest and the public good here; that is almost our central role as legislators. Don't you think this is not the right time?

Just indulge me—I will tell you what will happen if we do what you are suggesting. Some high-profile politicians will come out and go, 'This is a magnificent victory for freedom of speech, and it means that we can now say things that we weren't allowed to say before.' That is a dog whistle to racists—and, unfortunately, there are many racists in this country. They will feel empowered to cross the line that they believe exists now, and they will think that they can be more racist. I am sorry to put it so bluntly, but that is my assessment. Don't you think that in the broader public good there is an argument that now is not the right time to change anything in 18C?

Prof. Williams : It is a tough question. I can understand exactly where you are coming from, but I think you also invest in that question a particular status for section 18C in this debate which has been wrongly built up as well and, indeed, if you do not amend, you are equally giving credence to certain forms of debates on ongoing problems that simply will not go away. I think there is legitimate grievance that people have on free speech grounds with this provision, given its over-breadth and its statement, and if it is not properly dealt with you are giving life to another set of concerns and debates which create another set of problems.

There is no easy way out of this. What should have been a minor legislative fix has become, as you say, invested with a much larger significance. From my point of view, I would like to see this debate end satisfactorily so we can move on to more important debates. Unless we do, we could be caught in the situation you are talking about in five years or 10 years, because the pressures you are talking about do not seem likely to go away in the short term.

Prof. Twomey : There is also a risk that it is counterproductive. There is a concern that, if you are seen to be supressing certain forms of speech, then in fact they tend to fester and greater senses of grievance tend to arise. That is also one of the factors in the balance.

Senator McKIM: I hear you. Thank you.

Mr LEESER: I have two short things. One is to put to you that, if you were to adopt the Sackville proposals as opposed to effectively legislating Justice Kiefel's test, because there are so many new words there—degrade, incite, hatred or contempt are all completely new words—surely you would create more uncertainty than leaving the words as they were and adding or, as the Gilbert and Tobin Centre has tried to do this morning in their submission, effectively using one word to bring out the Kiefel test. By adopting the Sackville proposals, aren't you actually creating the potential for more controversy, rather than less?

Prof. Williams : I think you have a good point there, and I have given you an argument as to why I would like to see a higher threshold, but I accept that, if the committee took the view that you are not seeking to disturb things but simply to better reflect the state of the law, then the people test would be the more appropriate way—or the Gilbert and Tobin submission with the addition of that one word. That is essentially a policy test for the committee. But, if you took the point that Senator McKim was making, that would push you towards the more modest approach than what I am suggesting. I accept that.

Mr LEESER: In relation what Justice Sackville calls the objective test of the reasonable member of the community at large, as opposed to the currently misdescribed subjective test, which is actually an objective test for a smaller community group, we had Mr Wertheim from the Executive Council of Australian Jewry and we had Professor Stone yesterday putting arguments to us about why the nature of the law, as it is designed to protect certain minority groups, perhaps needs a more narrow lens, as it were—still a reasonable person but a reasonable person of that group, in that from time to time there are different groups that are less popular in our community and view particular acts differently to the community at large—and that there is some benefit in maintaining the narrower objective test rather than the broader objective test.

Prof. Williams : I accept the arguments, and for me it comes down to how you balance these things up. Perhaps this is an instance where I might give more weight to freedom of speech. There are good arguments, but it is a matter of proportionality, balancing and other things. Consistently, I tend to favour a system where, unless there are extremely clear reasons for something to be made unlawful or proscribed, incitement of violence or the like, my preference is for it not to be the subject of the law, because I think often the law can complicate and make things worse in these areas.

Mr LEESER: Finally, I have had an attempt, as you may or may not have seen, to address the processes of the Human Rights Commission, in order to try and address the argument that the process is the punishment in this space. It is an attempt, and it is an option of moving the debate on to quell the controversy. I do not know if, in view of time, you might be able to provide us with some written response to those or if you would very quickly make a response as a witness.

Prof. Williams : I can give a quick response. Yes, I have read it. When I look at the commission's powers, on their face they do appear to give the commission the necessary power to terminate complaints. It says quite clearly that if they do not see it as unlawful discrimination they can terminate. I think it may be—

Mr LEESER: They may terminate rather than are compelled to terminate.

Prof. Williams : You are right. On that point I was going to say that the insertion of 'must' may be one way of dealing with that issue. Remove a discretion, and that may give comfort to people in those circumstances. I can see justification in moving down that path. I can also see some argument, as has been put in one of the submissions, for giving someone a fast-track capacity to get a commission determination so you are not simply dependent upon whether or not they want to make a decision, and perhaps even a time limit for the making of that as well. Again, it is reasonable, in the light of public concern, to go down that path.

I am less attracted to your notion of inserting something for having little prospect of success because, as we know, 'little prospect of success' might mean a 20 per cent chance versus an 80 per cent chance of losing, and in that category you have got a reasonable argument; it is just that you may not win. I do not think it is appropriate to be preventing cases of that kind, because of course, until it has got to court, it is very hard to determine whether 'little prospect of success' really could, ultimately, be a winning argument.

Mr LEESER: Does it matter if it were no reasonable prospect of success?

Prof. Williams : Well, there we are getting into things that are trivial and vexatious. That is why I think the wording there is not really that problematic, because, if it is something that really has no reasonable prospect of success, the commission then would determine that they do not see it is unlawful discrimination anyway. You can argue as to whether you think the commission have made right discretions or not; you can argue that we should have a mandatory, but by and large they do seem to have the powers needed beyond those two points that I made.

The other point that I would make is that, if you close the commission down too much, I question whether there is any capacity to go straight to a court. I note in the legislation structure that it is assumed you would go via the commission to the court. But section 18C independently sets up an unlawfulness criterion. A smart lawyer might find a way of going directly to court and so simply bypassing the commission if you lock it down to such an extent, which will quickly get you into the uncomfortable terrain that of course some people have found themselves in here.

Mr LEESER: Professor Twomey, do you have a comment?

Prof. Twomey : Yes. I think that the commission has all the powers it needs, but I think the difficulty is getting those powers actually exercised and exercised within a period of time that is sufficiently short to cut out the pain of the process for the people where those sorts of complaints should not be dealt with. So I very much think there should be some kind of obligation on the commission to make an initial assessment, and to make that decision up-front, about whether or not the proceedings need to go ahead, rather than just simply having a discretion that maybe they will or maybe they will not exercise—some kind of obligation to make an initial assessment within a period of time to get rid of the ones that should not be there.

Prof. Williams : Maybe you could insert the words 'as quickly as possible'. There are a range of devices used in other legislation to that effect where there is thought to be a public interest in a quick resolution. There are also resourcing issues. The government could provide resources to the commission to ensure that it has the capacity to expedite matters of this kind, again, if there is a public interest in doing so.

CHAIR: Thank you, Professor Williams and Professor Twomey, for your appearance here before the committee today.