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Parliamentary Joint Committee on Human Rights
Freedom of speech in Australia

ZIFCAK, Professor Spencer, Past President, Victorian Council for Civil Liberties Inc.


CHAIR: Welcome. Do you have anything to say about the capacity in which you appear?

Prof. Zifcak : Yes, and thank you for your invitation. I am a professor of international human rights law at the Australian Catholic University and an immediate past president of Liberty Victoria.

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

Prof. Zifcak : Thank you very much. I have a brief opening statement. The purpose of the statement is simply to summarise the argument in the longer submission, of which you will all have a copy. In a speech to the Australian Human Rights Commission, now some four years ago, Justice James Spigelman, recently retired as Chief Justice of New South Wales, said that it was time to discuss dispassionately the reform of section 18C, not on the basis of whether you like Andrew Bolt or not but by addressing the question of whether the freedom to offend is an integral part of freedom of speech. And then he said, famously:

There is no right not to be offended.

Because the debate is so often framed around the Andrew Bolt case, let me just dwell on that for a moment. Justice Bromberg found that the following imputations were contained within the articles by Bolt in that case: that the applicants were not genuinely Aboriginal, that fair skin colour is sufficient to demonstrate that a person is not sufficiently Aboriginal, that the applicants who had fair skin had chosen falsely to identify as Aboriginal, that they had used their assumed Aboriginal identity to advance their careers or political ambitions, and that they had deprived other people who were genuinely Aboriginal of opportunities to which they may otherwise have been entitled. He also said that the articles in question had contained multiple and serious errors of fact, they had distorted the truth, they were founded on inadequate and careless research and that they had been written in a manner heedless of their racially prejudicial character.

In the case of the applicants, the judge found that every one of the imputations was incorrect. The question then was whether the imputations were reasonably likely to offend, insult, humiliate or intimidate a person within the terms of section 18C. There is no doubt that the articles were reckless as to the truth or falsity of what had been written, and that was a pity because it made it straightforward for the judge to determine that the terms of the Racial Discrimination Act had been infringed. There really was no doubt about it.

But that is not the question that we are now considering. The question is whether or not section 18C, prohibiting as it does speech that offends, insults, humiliates or intimidates a person on the grounds of their race, constitutes too great an imposition upon the freedom of expression that is recognised by the common law and by international human rights law. As to this, there are two common responses. The first is that section 18C should be removed from the Racial Discrimination Act in its entirety and the second is to say that section 18C should remain in its present form.

Liberty disagree with both those arguments. We disagree with the first argument because the abolition of section 18C in its entirety—and this is a question that has been raised by the committee already, and appropriately so—would have a damaging effect with respect to both the perpetrators of racial vilification and their victims. The abolition of section 18C would, in my view, act as a signal to those who may be inclined to racially humiliating or intimidating speech that the law will no longer sanction them for it. It would signal that racial prejudice has become acceptable. The abolition of section 18C would symbolise for minority racial and ethnic groups that the government no longer has an interest in promoting racial and ethnic tolerance.

At the same time, we disagree with those who argue that the Racial Discrimination Act should remain in its present form, firstly because the harm threshold is set too low. It should not be an offence to offend or insult another person. There is no right not to be offended. Secondly, in a democratic society, as the Attorney-General, Senator Brandis, has pointed out, to make the reasonable likelihood of causing insult or offence the litmus test of acceptable speech would be to place a far too severe restriction on ordinary political or social discourse. Thirdly, Australia has always had a robust political culture. Strong and sometimes even scathing interchanges have formed part of the Australian political dialectic and social discourse ever since Federation. As Justice Kirby pointed out in the case of Coleman and Power, as a people we should have sufficient fortitude to engage in and even respect this aspect of our culture, for after all it is essential as a component part of a wider constructive freedom to speak our minds.

If one disagrees with both these views, as Liberty does, what is the way through? I think there is a moderately satisfactory solution to the problem and a highly desirable one. Let me deal with each of those in turn. The first has often been proposed, has been discussed this afternoon and is probably discussed by almost every single witness. That is, to set the harm threshold higher but within the framework of the present racial discrimination provision. That is, amend existing section 18C by removing the words 'offend' and 'insult' but retaining the words 'humiliate' and 'intimidate'. That reform would ensure that insult or offence, even on racial grounds, would not be sufficient to make a case for racial vilification.

Insulting or offensive speech, even if regrettable, would no longer be sanctioned. The ambit of freedom of speech would widen as the restrictions upon it are narrowed. But speech that unfairly and unjustifiably attacks a person's sense of self by subjecting them to humiliation on the grounds of their race—for example, by asserting their racial inferiority—would still constitute a civil offence. It would silence them. Speech that intimidates a person or a group of people by threatening them with harm because of their racial difference would still be the subject of civil penalty. People cannot change their race. Threats of physical or psychological injury made because of it should be prohibited.

Let me turn then to the second reform option and this is the reform option that Liberty favours. Unlike several states and the ACT, the Commonwealth does not have a law providing a civil sanction for racial hatred or vilification. There was an attempt to introduce such a law at Commonwealth level in 1995 but the proposal was defeated by the conservative opposition in the Senate. So, as a first step in overcoming the present disputation, in my view, the government and the parliament should move to outlaw hate speech. Section 18C of the Racial Discrimination Act is inadequate because it makes no reference to hate speech; it is concerned with the effects of less injurious forms of expression. Further, as a matter of principle, it seems reasonable to impose a limit on racially hateful utterances, given their propensity to provoke vengeful and even violent responses.

If real protection against racial vilification is desired then racial hatred, serious ridicule and serious contempt should be named and made unlawful. Should that be done, the intensity of the opposition to more moderate changes to the Racial Discrimination Act is likely to recede. That is because racial minorities will then have received the strong protection against racial hatred and vilification that they desire but which they do not have in Commonwealth law. One could look then more dispassionately at the RDA's limits on freedom of speech and determine whether and to what extent they might properly give way to the desirability of protecting free public and political communication. The obvious implication of that is that one could, in all probability, successfully remove the words 'insult' and 'offend' but neutralise much of the opposition to changes to the Racial Discrimination Act currently advocated for by combinations of various different ethnic, religious and other groups.

Mr PERRETT: Thank you for your presentation. The legal analysis you gave for removing 'offend' and 'insult' is quite substantial. What message do you think it would send to communities about the way we treat individuals from minority groups if we did amend the legislation with 'offend' and 'insult', leaving aside your legal analysis? What would the social message be? I am not sure how long you have been in the room but all day and yesterday we heard from groups who have serious concerns about how their committees would be impacted by such a change that Liberty Victoria is proposing.

Prof. Zifcak : The answer to that question is that our proposal is in two parts. Our proposal is remove the words 'insult' and 'offend' from section 18 of the Racial Discrimination Act but do so in combination with introducing new legislation which will provide sanction for any person who engages in speech constituted by racial hatred, ridicule and contempt. That is the way in which I think we can drive through a reasonable compromise that will neutralise a lot of the opposition from the groups that you have been hearing from.

Mr PERRETT: There would be public awareness campaigns—so the racists do not get out of the box, effectively—saying: 'No, no, we are tinkering with some legislation here, but we are not changing it. It is sorting out some mischief rather than—

Prof. Zifcak : We are taking 'insult' and 'offence' out of the act, but we are now, for the first time at Commonwealth level, providing serious protection from people who utter speech constituted by racial hatred, ridicule and contempt. In fact—

Mr PERRETT: Wouldn't that have implications for their freedom of speech?

Prof. Zifcak : For whose freedom of speech?

Mr PERRETT: The people who wanted to be able to say such measures.

Prof. Zifcak : The people who wanted to say such measures would be disinhibited from doing so because there would be a new offence of making utterances that were racially hateful, that would ridicule people or that were contemptuous of people on the grounds of their race. It is a twin approach that we are adopting.

Mr PERRETT: Would it keep the objective test in terms of, 'What would that race feel'?

Prof. Zifcak : I have no difficulty with the objective test as it has now been propounded.

Mr PERRETT: In the Bolt case?

Prof. Zifcak : In the Bolt case and elsewhere. I am happy to elaborate on that if you like, but I think that is the appropriate test.

Mr PERRETT: Thank you.

Senator PATERSON: Thank you, Professor Zifcak, for an interesting different perspective on this issue. Am I to understand from your submission that the combination of removing 'offence' and 'insult' and adding a new limit on vilification and hatred is to, at the same time, not only raise the bar a little bit about what is permissible in terms of speech but perhaps better target the kind of speech that we are seeking to prevent? Is that a fair summary?

Prof. Zifcak : Yes, that is fair. But there is another underlying distinction here which is important. If you look at the provisions of section 18C, they do not outlaw any form of speech. Section 18C is a provision that is dealt with according to the harm that will occur to the victim of a speech.

Senator PATERSON: Yes.

Prof. Zifcak : It is a very indirect way of dealing with the harm with which we are concerned. It seems to me that if you have a provision saying there will be a sanction for people who engage in speech constituted by racial hatred, ridicule or contempt then you are attacking the speech. You are attacking the speech, and you are attacking the most severe forms of speech and the forms of speech that most people in racial minorities are most concerned about. What bothers me about the debate is that this is rarely discussed. How it is that the Commonwealth lacks a law outlawing racial hatred is something that we really need to think seriously about. Every state in Australia has such a law, with the exceptions of Western Australia and the Northern Territory. I cannot see why the Commonwealth should not legislate to outlaw speech constituted by racial hatred. It is a lay-down misere, as far as I am concerned.

Senator PATERSON: From time to time, we see in the media a video gone viral of someone being racially abused on a bus or a train or something like that. It is sustained abuse on a racial basis. Is that the kind of thing you are seeking to capture?

Prof. Zifcak : That would be sanctioned, yes.

Senator PATERSON: You are not satisfied that it is largely covered at the state level and that that is an avenue available to people? You want it also covered at the federal level?

Prof. Zifcak : I think we should have consistent legislation around Australia.

Senator PATERSON: Is it necessary for legislation to be duplicated in order to be consistent, if there is nothing that is inconsistent with it at the federal level? Is that an inconsistency that you are worried about?

Prof. Zifcak : One would have to look very carefully at state legislation and pull out the common provisions across them. It is not a very difficult thing to draft. There are any number of international precedents in almost every European country, in Canada and in New Zealand—every country that has a bill of rights.

Senator PATERSON: Just to clarify: do you propose that these sanctions be civil or criminal in nature?

Prof. Zifcak : I am proposing that they be civil in nature.

Senator PATERSON: So, a fine—well, perhaps a better way of putting it is monetary compensation—is payable?

Prof. Zifcak : Or any other form of right of reply or—

Senator PATERSON: Whatever the court deems appropriate.

Prof. Zifcak : Whatever the court deems appropriate.

Senator PATERSON: As it is in 18C, whatever the court deems appropriate.

Prof. Zifcak : Yes.

Senator PATERSON: There have been submissions from other witnesses that one of the problems with an approach of taking out, say, 'offend and insult' and replacing it with 'vilify'—which is not exactly your proposal, but similar to it—is that 'vilify' is a term that is more difficult to define and is less well-defined in case law than the existing terms are. So, in removing 'offend and insult' and replacing it with 'vilify', it is not clear what the effect of that would be. Do you have a view on that?

Prof. Zifcak : I agree with that. We have a common form, pretty much across Australia, and it reflects a common form pretty much across the Western world which institutes sanctions for racial hatred, ridicule and contempt. That is the starting point. Really I do not think it is any great task of drafting to take that as the basis and formulate an Australian-appropriate form of the words that will be consistent with and therefore easier to interpret, because there will be not only state precedents but international precedents to which one could look at well.

Senator PATERSON: I have one final, very quick question. The existing law of this nature in Victoria became contentious with the Catch the Fire Ministries case, which I assume you are familiar with.

Prof. Zifcak : Yes.

Senator PATERSON: Do you think it is appropriate that cases like that are caught by the law? Or would you like it drafted to avoid catching cases like that?

Prof. Zifcak : I would have reservations about adding religion to race. I think we are talking here about race, and that is what we should focus on at this point.

Senator PATERSON: Thank you.

Senator McKIM: Professor Zifcak, thank you for your submission and your appearance here today. Are you aware of the Cairns Post case and Justice Kiefel's judgement in that matter?

Prof. Zifcak : Yes.

Senator McKIM: Would you accept that that judgement makes it pretty clear that the courts have interpreted section 18C in such a way that simply feeling offended by something does not clear the bar?

Prof. Zifcak : Look, I have a pretty clear view on this. The words that there must be a 'profound or serious effect arising from any insult or offence' do not appear in the statute.

Senator McKIM: That is absolutely true. In fact, I will ask you about that in a moment, so could I just ask you to sort of hold that thought, because I do want to ask you about the potential for codifying. But before I do that I will just go back to my previous question: do you accept that on the basis of that judgement by Justice Kiefel that the jurisprudence on this matter is actually quite clear in that simply feeling offended is not enough and, as you say, the words 'must have a profound and serious effect' before a finding can be made that 18C has been contravened?

Prof. Zifcak : It will never be clear unless the words are put into the statute.

Senator McKIM: No, sorry: I am asking you about the case law. Is the case law clear? Just so you know—I am not sure whether you were in here—we have had a couple of lawyers, just before you, who have said that it is abundantly clear, the case law is settled, the jurisprudence is settled, nothing is hazy, nothing is—

Senator PATERSON: [inaudible]

Senator McKIM: Well, that is effectively what they have said.

Senator PATERSON: They did not say that. [Inaudible] said there are some issues of an interpretation being—

Senator McKIM: No, I actually do not think she said that. But, regardless—I could argue with Senator Paterson all day, and we frequently do in the Senate—do you agree or disagree that the jurisprudence is settled and that in case law there is no ambiguity here?

Prof. Zifcak : My view is that, insofar as we have had the case law, it is more or less settled.

Senator McKIM: More or less settled?

Prof. Zifcak : More or less settled. However, I can only add to that that it is not in the statute.

Senator McKIM: No, I appreciate that, and I can give you an absolute assurance that I am going to come to that matter in a moment.

Prof. Zifcak : I am a lawyer, and I know about statutory interpretation.

Senator McKIM: Well, I have been a legislator for 15 years, and I know about statute. So, I wanted to say, therefore, if it is more or less settled, Justice Spigelman's view that there is no right not to be offended—that is not a relevant view, in this case, is it, because the case law is more or less settled, that feeling offended actually is not enough?

Prof. Zifcak : Yes. Having said that, I hope you are going to talk to me about codification.

Senator McKIM: I am. I have given you a commitment twice now, on the record, that I will, and I have one further point to make—although we are running short of time, so I will go to codification now. And we have had evidence both ways on this from witnesses during this process. Some have advocated for codification, and some have advocated against it. I am not intending to raise Senator Paterson's ire here, and I will try to generalise about it. Those who have argued for codification have said that it would be helpful in allowing Australians to understand the intent of the law and how the law ought to be interpreted by the courts, and that is the argument for codifying. So, before I go to the next one: would that be your view? And are there any further arguments in favour of codification if you have any that you wish to put before the committee?

Prof. Zifcak : Not really. My preference is always for a solution to a problem like this not to be determined by the judges but to be determined by the legislators. And we have a problem.

Senator McKIM: I do not think we do. If the IPA and The Australian did not exist I do not think anyone would have ever heard of 18C in Australia, to be honest with you, so I actually do not accept that there is a problem. But other people—

Prof. Zifcak : Well, this is the second parliamentary inquiry we have had, so we probably have a bit of a problem, and I think we need to fix it.

Senator McKIM: Okay. That is fine. The argument against codification is the potential for legislative change to send a signal or a message out into the Australian community that we are somehow winding back protections. Would you like to respond to that?

Prof. Zifcak : Well, I think we have to look at the actual problem that we have, which is that section 18C in particular in relation to the words 'insult and offend' now bears a meaning that has been determined by the judiciary.

Senator McKIM: But isn't that the case in almost every statute?

Prof. Zifcak : But it has been determined by the judiciary in this case in quite a stark way. It is not too often that the judiciary adds words into a statute, and that is in effect what the judiciary have done. Generally speaking, as a lawyer, I do not think that is appropriate. So, they have added profound and serious consequences in. Fine; I happen to agree with that. I have no problem with it. I just think that is the legislature's job, not the judiciary's job.

Senator McKIM: I understand that, and as a matter of I guess legal and legislative theory I completely agree with you, but my concern here, as I articulated earlier, is that this would be taken by some elements in the Australian community as a green light to racism. That is my concern.

Prof. Zifcak : Well, I do not think that is the case, because it would not be too difficult for a government to explain that it was simply legislating to bring the legislation concern directly into line with judicial interpretation. That is pretty technical.

Senator McKIM: As a matter of theory, again, I agree with you. Whether that would occur in practice, I have significant doubts.

Prof. Zifcak : But recall that this is only half of Liberty's proposal.

Senator McKIM: I appreciate that, yes.

Prof. Zifcak : And if you did the other as well, then this would not be a problem, because the public perception would be that you are actually introducing really strong prohibition on racially hateful speech—and we should have it.

Senator McKIM: Thanks, Professor.

Mr LEESER: Just to clarify on the position of codification: you are not uncomfortable with codification of the existing law?

Prof. Zifcak : I am not uncomfortable.

Mr LEESER: I do not know whether you have had a chance to look at the submission that I had put together, and I apologise if when I was out of the room briefly you previously addressed that, but I was just wondering whether you had any comments about the improvement of the commission's processes in that regard. I know you have put some things down on page 17 of your submission, but I wondered whether you might specifically address the thoughts that I put together there about whether we should be directing the commission more solidly so that when a matter comes in they should be determining whether it has any prospect of success, and if they do not think it has any prospect of success to terminate it?

Prof. Zifcak : Look, I think we have to be really careful about the wording here. The first thing I will say in answer to your question is that the three recommendations you see on page 17 are exactly the kinds of recommendations that I feel as if you are arguing for in your submission. So, insofar as they are similar if not identical, then you and I are in complete agreement. That is the first thing. The second thing is that we have to be really careful to distinguish the words, for example, 'lacking in substance'—which are other words that are in the statute now—and the words 'no reasonable prospect of success'. I heard you say before that you know about chapter 3, and you know about chapter 3 problems. The words 'no reasonable prospect of success' belong to the judiciary and are an exercise of judicial power—not an exercise of judicial power for the President of the Human Rights Council to say, 'There's nothing in it; in fact, the complaint discloses no case of racial discrimination insofar as it has been made, and therefore we can dismiss the complaint.' They are two very different things.

Mr LEESER: A solicitor commencing court proceedings needs to certify that a matter that they are bringing before a court has reasonable prospect of success. They do not need to that with the commission. Shouldn't that be a standard that the commission should at least apply in relation to matters that are coming before it, given that there is a broader supervisory role of the courts over the top of the commission?

Prof. Zifcak : Let's look at the words 'no reasonable prospect of success'. Those words imply to me that there has been a hearing of a case, that a judge, as in the QUT case, determined after hearing all of the preliminary evidence that although a complaint may have been justified it was nevertheless a case in which there was no reasonable prospect of success, and that is a decision I agree with. I do not think the QUT case was ever going to get up. But it is not for the commission, which is a body concerned with deliberation and conciliation, to be making a final ruling on whether or not a case should proceed. That is for a court; it is not for the commission.

Mr LEESER: In a post-Brandy world, is the commission still the appropriate body to conciliate these sorts of matters? When the commission was established it was thought that it was going to have determinative power, and that is indeed what it was given. Brandy came along. It now has these residual conciliatory functions, it has some education and advocacy functions. Are those conciliation functions best performed by the commission, or would they be better performed by another body or some sort of adjunct or court?

Prof. Zifcak : The commission is the repository of knowledge about the legislation for which it is responsible. I do not have any difficulty with the commission engaging in conciliation. I would have tremendous difficulty if the commission sought to make determinations of any kind. That is consistent with Brandy.

Mr LEESER: Indeed. But the commission terminates matters already for a whole range of reasons—'no reasonable prospect of success'. Indeed, some people have argued before this inquiry that there is actually not a lot of difference between 'no reasonable prospect of success' and a range of the other things that it is able to terminate matters on the basis of.

Prof. Zifcak : No, I think there is—

Mr LEESER: And if the commission, as you say, has this specialist knowledge and this specialist ability to deal with the legislation, surely there is a benefit to having it make an assessment along those lines?

Prof. Zifcak : The commission is an administrative body, not a judicial body.

Mr LEESER: Yes. I am not asking for it to make a judicial determination.

Prof. Zifcak : And the question about whether a case has a reasonable prospect of success or whether it does not have a reasonable prospect of success is something that belongs to the judiciary. It does not belong to an administrative body. And that is constitutionally sound.

Mr LEESER: I think you and I may disagree on that, but thank you. I do not have anything further.

CHAIR: Thank you, Professor, for appearing this afternoon.

Proceedings suspended from 15 : 04 to 15 : 23