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Legal and Constitutional Affairs Legislation Committee
Australian Human Rights Commission

Australian Human Rights Commission


CHAIR: I welcome everyone back. The committee will proceed with the agenda as determined, in recognition that a lot of the earlier witnesses are from Sydney and want to return home. Welcome, Professor Triggs. Do you have an opening statement?

Prof. Triggs : I do not.

CHAIR: Do any of your commissioners?

Prof. Triggs : We do not need to make an opening statement, although I believe you have documents from our evidence to the free speech inquiry with an opening statement there, along with a chronology that addresses some of the issues that were raised by this committee last time we appeared.

CHAIR: Thanks, and thanks for alerting us to those hearings of another committee. We still have questions on the same matter, particularly the QUT issue and the Leak inquiry. Senator Pratt, do you have any questions for the Human Rights Commission?

Senator PRATT: I have questions for the Race Discrimination Commissioner, thank you. In 2015, the National Anti-Racism Strategy for Australia was extended for three years. Do you think the objectives of that strategy are being achieved?

Dr Soutphommasane : The antiracism strategy exists to empower Australians to stand up to prejudice and discrimination and to educate the Australian community about the harms of racism. These objectives remain pertinent to Australian society, particularly in light of challenges that we have to race relations and community harmony. We cannot afford to be complacent about the maintenance of our multicultural society and the maintenance of our liberal democratic values, including equality and nondiscrimination. We conduct the work of the national antiracism strategy with modest resourcing at the commission. We do our best with it and we have had to be innovative in how we carry out our work. For example, we pursue numerous partnerships with civil society organisations and other organisations in the community, which reflects the situation we have with resourcing.

Senator PRATT: Given your limited resources, how would you reflect on the need for this strategy, given the everyday experiences of Australians who may experience racism?

Dr Soutphommasane : We certainly hear a lot from the communities with which we consult about the need for continued education in the community. There is not necessarily a sophisticated understanding of racism across the community. Obviously those who are on the receiving end of prejudice and discrimination understand the issue in a very different way to those who do not experience racial discrimination. The strategy's efforts really reflect the ongoing need to educate the community, and that need is something that the vast majority of those we consult with say is important work.

Senator PRATT: During your time as Race Discrimination Commissioner, do you think that more or fewer Australians recognise that racism is something that is unacceptable in our community?

Dr Soutphommasane : We have made progress, but there is a lot more to be done. If you were to look at public attitudes concerning racial tolerance, I would say that Australia is one of the most tolerant and welcoming societies in the world. That should not detract, however, from the persistence of racism of numerous forms. We see it in the form of everyday and casual racism and, more concerningly, we see it in the form of ongoing systemic and institutional forms of racism. There are some sections of the community who, it must be said, have hostile views towards racial diversity and may harbour prejudiced views on race and culture. They only form a small minority of our population, but they can exercise a disproportionate influence on our public debate. The views of a small minority can be amplified in public debates about race and culture, and from time to time can give the impression of an Australian society that is perhaps not as advanced on matters of racial equality as we actually are.

Senator PRATT: So clearly it is part of the commission's role to challenge those views. Do you think you are doing that successfully and has the campaign itself been successful?

Dr Soutphommasane : We try our best, and we would not want to purport to have eliminated racism—that is beyond our means. It is more realistic to accept that this is a social ill that will require persistent and ongoing efforts. Can we do more? Of course, and we would have scope to do more if we had the means to do more. Currently, the National Anti-Racism Strategy comprises a number of projects, including the work we do in early childhood education and in sport. It also includes the 'Racism. It Stops With Me' education campaign, which currently has more than 350 supporters around the country. But, if we had the means, we would of course extend our work and efforts.

Senator PRATT: What can people do to get involved in the 'Racism. It Stops With Me' campaign?

Dr Soutphommasane : We invite organisations and individuals across the country to join as supporters and pledge their commitment to racial equality and tolerance. Organisations can join and they may, for example, hold events to broadcast their commitment to the campaign. They may also use the campaign to start conversations within their organisations about systemic or policy changes that they can adopt with respect to diversity and inclusion. We see a range of activities. Many organisations may join the campaign following an incident or an issue they have had to deal with. Others join because they want to express their fulsome commitment to the issue.

Senator PRATT: Can I ask you to describe what you think are the key contemporary factors that influence levels of racism in Australia today.

Dr Soutphommasane : It is not simple to diagnose what is causing racism, in the following respects. We cannot simply point to one factor and say, 'That is the course of racism today.' Racism is borne of many things. It can be borne of hatred and fear; it can also be borne of ignorance and arrogance. There is no doubt in my mind, however, that the public debates we have about race, immigration and multiculturalism can have a bearing on our race relations. If people feel that they have a licence to vent their feelings, including those of a racial kind, in public, then they are more likely to do so, and it can undermine the harmony that we have in our society. We are not insulated, as well, from public debates internationally and globally. At the moment there are vociferous debates about immigration and race in the United States and Europe. That of course has a bearing on how things play out here. The way that issues are covered in media can shape people's understandings of race. Then there are the more persistent, systemic aspects of race. I would highlight, for example, the racial discrimination experienced by Aboriginal and Torres Strait Islander people, reflected in high incarceration rates and in health and educational outcomes. Those are issues which are more ingrained and entrenched and are perhaps a persistent feature of our public life.

CHAIR: In that context I understand that the parliamentary committee inquiring into 18C is due to report shortly. Will you be looking closely at what that committee says?

Dr Soutphommasane : Naturally. We have attended two of the hearings of that committee, we have made two submissions and we will await the report from the committee, which I believe will be released this afternoon.

Senator PRATT: Thank you. I look forward to joining the 'Racism. It Stops With Me' campaign.

Dr Soutphommasane : Thank you.

CHAIR: For those who are new to this committee—and there are not many—it is my practice, which I intend to follow again today, that questions are asked in 15-minute blocks. I usually go from Labor to Liberal, Labor to Liberal and then to the crossbenchers. Today, however, we have the Commissioner and interpreters who are available only for a certain period of time, so I am going to alter that normal practice and go to the Disability Discrimination Commissioner next. Senator Siewert has indicated she has some questions for the commissioner. If anyone else has questions for the commissioner, we will do that now. I understand that, apart from Senator Siewert, there may not be a lot. Senator Siewert, over to you.

Senator SIEWERT: Good morning. I would like to follow up some questions that I have been asking in a series. The first is to follow up your answer to question No. SBE16/022 from the previous hearing, which related to the nature of the complaints and, in particular, the issues around complaints about employment. I note you very kindly gave me details for the last five years in a graph, and it seems to me that the graph is clearly showing an increase over the years in complaints on employment, and in particular last year, 2015-16, was the highest in five years. Obviously we cannot ask about individual cases, but can you take us through the nature of some of those complaints so we can get an understanding of what discrimination people are facing in the workplace and in trying to gain employment?

Mr McEwin : I suppose there are two main issues we encounter when we see employment matters come through. Firstly employers are not equipped to support employees with disability. That is one big issue—people do not know how to support or accommodate or provide reasonable adjustment. That is one big trend that I see in the employment matters that come through the commission. The other issue is that they are not aware of what support is available through the government, so there is a lack of understanding of the resources available to ensure that people with disability can achieve meaningful employment.

Senator SIEWERT: So who is that? The employers or the employees—the people with disability seeking employment?

Mr McEwin : Both, I would say, but mostly employers are not aware of the variety of programs that are available to them if they are to employ people with disability. Having said that, many people with disability are overwhelmed by the system and equally are not aware of what is available to them.

Senator SIEWERT: Am I correct in my interpretation that the highest level of complaints on employment over the last five years has been in the last financial year?

Mr McEwin : Yes. Consistently we have found in the last five years that employment is in the top three matters under the Disability Discrimination Act.

Senator SIEWERT: Do you have the figures on the first six months of this financial year?

Mr McEwin : In comparison with the same period as the previous reporting year, there has been an 11 per cent increase.

Senator SIEWERT: Even from last year?

Mr McEwin : From last year, under the DDA—an 11 per cent increase.

Senator SIEWERT: That is quite a significant increase.

Mr McEwin : It is, and of course it is of great concern.

Senator SIEWERT: Have you looked at what that might be attributed to?

Mr McEwin : We have not done a comprehensive analysis, but I can make a couple of quick comments. First, people with disability are becoming more aware of their right to make a complaint, and we facilitate that. Second, people with disability are aware of the big discrimination they encounter, so they are reaching out more to see what they can do—and making a complaint is one option.

Senator SIEWERT: I think we have discussed before the number of people on the disability support pension being reassessed against the eligibility criteria and moved onto Newstart, or off income support. Have you had any specific complaints about that?

Mr McEwin : We do receive, in general, complaints about access to services, and that includes government services—but, no, we have not received many complaints of that nature.

Senator SIEWERT: Many or any?

Mr McEwin : I will have to take that on notice—I do not have the specific information to hand. That is a very specific area and I do not have that information—I will take it on notice.

Senator SIEWERT: That would be appreciated. In terms of the graph and the information you gave us in response to a question on notice, is access to income support and the disability support pension categorised under 'good services and facilities'?

Mr McEwin : Access to services—that is the category.

Senator SIEWERT: Access to services—so that bar graph covers that?

Mr McEwin : Yes.

Senator SIEWERT: Regarding the answer you gave me about the NDIS and the number of complaints that you had had at that time, could you update the figures on any further complaints that you have had on the NDIS.

Mr McEwin : I cannot comment on individual matters.

Senator SIEWERT: I totally appreciate that.

Mr McEwin : I will take that on notice.

Senator SIEWERT: You had had seven; I am just wondering how it is going. In your answer to me last time, you said that the majority of these complaints do not relate to the administration of the NDIS. Could you also take on notice—without talking about individual cases—the nature of those complaints. Are they about the packages they have received, administration, difficulty in access—what type of complaints are they? Is that possible?

Mr McEwin : I cannot comment, but, as you would know, under the Quality and Safeguard Framework, there would be an NDIS complaints commissioner established, so the commission would not have any jurisdiction over that.

Senator SIEWERT: In your response to my question last time, you said you had received seven complaints. That framework is not in operation yet. How many complaints have you received, and what is the general nature of the complaints?

Mr McEwin : The general nature could possibly be around employment under the NDIS, but I will take that on notice.

Senator SIEWERT: I am talking about people who have complained about access to the NDIS, and the categories of complaint.

Mr McEwin : I will have to take that on notice.

Senator SIEWERT: Thank you. Also, I appreciate the answer you gave me about hearing impairment. Could you give me the numbers on hearing impairment.

Mr McEwin : Is your question about how many people with hearing impairment are making complaints to the commission?

Senator SIEWERT: It is specifically about accessing hearing services. You said there have been two to date. I have received a number of concerns. I am wondering if you are receiving concerns about access to hearing services as well.

Mr McEwin : Can I clarify? Do you mean in general? You are not talking specifically about the NDIS—you mean people with hearing impairment accessing hearing services?

Senator SIEWERT: There are two specific issues: generally about hearing services; and specifically under the NDIS, including early intervention.

Mr McEwin : I will have to take those on notice.

Senator SIEWERT: I will move to the issue of representation of people with intellectual or cognitive impairments. You took a question on notice last time, and, with all due respect, the answer that I got is fairly general. I appreciate that you were new in the job at the time, and that you were undertaking your consultation process, but this is a significant issue that has been raised with me repeatedly. I understand that it is a very sensitive issue, but I am keen to pursue where you think we should be going with representation. You gave me a general answer about advocacy, and I appreciate that, but I am looking for—and so are many members of the community—more interpretation and guidance on how we ensure genuine representation of people with intellectual disability and cognitive impairment.

Mr McEwin : Thank you for noting that I am still relatively new. However, having said that, I have spent the last six months listening very carefully to what people's main concerns are. Access to justice is still, very much, a significant one. What I am looking at currently are some of the best practices that I have seen around Australia, and seeing whether we can then model those to become national programs. That is one example of what I am looking at. I have heard of one or two very good programs that support people with disability in the justice sector, and now I am picking up on those and seeing whether we can make them national.

Senator SIEWERT: I appreciate that, and that is one area I was going to ask about, but I am also interested in general issues. You will be aware of the issues people are raising about who within representative bodies represents people with intellectual disability. The comments that I made in terms of the response that you gave earlier was where you outlined the consultation that you are undertaking. That is why I acknowledged that you were at the start of your term. But I am keen to pursue the issue about more general representation—not just in the justice system, which I totally agree is critical.

Mr McEwin : Certainly, appropriate representation of people with a disability—not only in the justice sector—was the big issue that was raised in the consultation. A big concern is the lack of funding or the lack of support for the advocacy organisations or organisations that work with people with disability. That came out consistently in my consultation, so it is a real concern. They also noted the lack of support that people receive when they are actually in the system, whether it is the justice system or whether it is other systems. Certainly they are two big issues.

Senator SIEWERT: We are still not quite there. I will detail some of the issues that have been raised with me to illustrate it. I am getting parents saying, 'I want to be able to advocate on representative bodies for my child with an intellectual disability.' Then there is the tension between people representing themselves and being able to advocate for themselves as opposed to people advocating for somebody with a disability—there is a difference. I am aware that it is a tension, and I am wondering if you are going to look at how you would provide guidance and support and develop more supports for people with intellectual disability to represent themselves, for example.

Mr McEwin : I am glad you raised that, because my role is to ensure that people with disability themselves are at front and centre of all decisions affecting their lives. So of course I want to make sure that they have the tools and the support that is necessary for them to ultimately make their own decisions. I recognise that there are tensions in how we achieve that. Having said that, the role of carers and families is also critical to achieving that, but essentially the government and advocacy organisations need to recognise that the person with a disability needs to be front and centre. That will be challenging to achieve because of, for example, the many traditional models that we have had of service delivery.

Senator SIEWERT: I take it that to work out that balance is ongoing work?

Mr McEwin : Certainly.

Senator SIEWERT: Do you want to carry this forward to further develop those processes?

Mr McEwin : I will give you one example of how I conducted my consultation. I had broad community consultation, but I also had smaller groups, where, for example, people with intellectual disability were given a safe space away from support workers and away from their families and carers, and they were able to tell me directly how they were feeling or what the issues were—and I will continue that.

Senator SIEWERT: I want to go back to the issue that you touched on in terms of the NDIS and the quality and safeguards framework and the complaints process. How will your process and their process interact once it is up and running?

Mr McEwin : As you know I do not have carriage of the NDIS, but I am working closely with the NDIA—for example, I met with the CEO and the Deputy CEO last week, and we talked about the quality and safeguards and we also talked about a range of other issues. The important thing is that if people feel they can come to me with the issues then it is important for me to work collaboratively with the NDIA.

Senator SIEWERT: If people do not understand the process or feel safer going to you in the first instance, they can do that and you will facilitate a process. Is that correct?

Mr McEwin : I would most likely refer them directly to the NDIA, but I would certainly also enable them to make that first contact because it is important. Many people with a disability experience barriers in getting information, so one of our roles at the Human Rights Commission is to make sure that people are aware of what their rights are under government.

Senator SIEWERT: You made a comment about employment and some of the complaints being related to maybe the NDIS. Where does employment sit? With you? If it is a person with an NDIS package, surely it would still sit with you?

Mr McEwin : Do you mean if there is an issue around discrimination for that NDIS package?

Senator SIEWERT: If it relates to employment. One of the processes under the NDIS is economic participation. So where will that sit?

Mr McEwin : Our job is to make sure that the NDIS is implemented in a way that is free of discrimination for people with disabilities. But in relation to your question around packaging, one part of a package is to get people from their home to their place of employment, so that is the NDIS's responsibility, but my view is that we need to be aware of what that might result in long term—economic participation—as you mentioned.

Senator SIEWERT: Okay. Thank you.

CHAIR: Mr McEwin, you were talking about access to justice and services. Are you aware if the Commonwealth or the state governments provide, readily, funding for interpreters for those with hearing, sight or speech difficulties?

Mr McEwin : Yes. I am very aware of that. Unfortunately, what we are seeing is very much a different approach, state by state. For example, in some states, there are no interpreters available, whereas in other states there may be interpreters available but a very small pool. What we are seeing is a workforce or supply issue. Certainly there are some programs available, but lack of resources and lack of funding is an issue.

CHAIR: The lack of funding is an issue or is not an issue? Perhaps I will ask that in another way. Is there adequate funding from state or federal authorities, agencies, so that those wanting access to services and justice are able to make their case through interpreters?

Mr McEwin : Perhaps the Attorney-General's Department could answer around the funding, but what I have noticed or what I have observed is a lack of highly qualified interpreters who are able to provide that service.

CHAIR: I will come back to Mr Moraitis later with that, apparently. Although, I am really talking across the board, state and federal and a range of services that are not necessarily legal. Are you aware of any funding difficulties in gaining the assistance of interpreters?

Mr McEwin : Not so much. Funding is an issue but the biggest issue—I will just repeat again—is the lack of qualified interpreters. For example, in Canberra, for the whole of the ACT, there are only two Auslan interpreters.

CHAIR: We know that as a committee. I may not have recorded this correctly, but I thought you said one of your roles was to facilitate complaints. Did you say that? And what do you mean by that, if that is what you said?

Mr McEwin : I do not recall saying that I would facilitate complaints. As you well know, commissioners do not get involved in the complaints mechanism at the commission.

CHAIR: Okay. That is really all I wanted to know. Thank you very much, Mr McEwin. I do not think anyone else needs you, but you will be around for a while and the interpreters will be around for a while if any other senator does have any questions.

Senator SIEWERT: Chair, I do have one more about interpreters. I will keep it very short.

CHAIR: Can I just record that—I have 12 minutes of my 15 minutes, but you go ahead and I will take you at your word that it is only one, Senator Siewert.

Senator SIEWERT: There have been complaints about the ability to access interpreters in people's packages on NDIS. Bearing in mind what you said about the framework and bearing in mind what I said about the framework not operating yet, has that issue been raised with you?

Mr McEwin : In my community contact, yes. I would emphasise that it is a broader issue. It is not, for example, just interpreters for deaf people. It is interpreters for people from a non-English speaking background. And so the issue is the workforce is not yet ready for the demand.

Senator SIEWERT: The workforce is not ready; it is not necessarily that people are not able to access interpreters as part of their package? You are saying it is a workforce issue?

Mr McEwin : Yes.

Senator SIEWERT: Thank you.

CHAIR: Thanks, Senator Siewert, and thank you, Mr McEwin. That is all we seem to have for the moment. Could I now turn to Dr Soutphommasane. I am curious to follow up on some of the things you were telling us previously. But before I do that, there is an article in The Australian today which has some statistics and which begins:

There has been a massive blow-out of racial hatred cases ahead of an expected parliamentary committee recommendation …

Et cetera. Have you seen that article, Doctor?

Dr Soutphommasane : Yes, I have.

CHAIR: Are the figures accurate?

Dr Soutphommasane : I can give you the figures that we normally use with respect to our complaints numbers, if that is useful for you?

CHAIR: Yes, please.

Dr Soutphommasane : The last three financial years have seen 116 complaints received under section 18C in 2013-14, 116 complaints again in 2014-15 and 77 complaints received in 2015-16. They are the publicly available figures that we cite and use to explain the flow of complaints to the commission.

CHAIR: This article says:

The number of such cases lodged with the Australian Human Rights Commission has leapt from 18 in the 12 months to last March to 71 in the past year, …

Would that not be accurate?

Dr Soutphommasane : I will take it on notice and verify for the following reason: I believe that figure may relate to cases that are open, which is different to the category that I cited to you just now, which relates to received complaints.

CHAIR: This is perhaps delving into another committee, and you may not have the answers to this. There is a witness quoted as saying:

A large number of submissions to the inquiry favouring no change to section 18C are from government agencies or taxpayer-funded groups.

Have you done any analysis of the submissions to that other inquiry that would allow you to confirm or deny those figures?

Dr Soutphommasane : That would seem to be a question best directed to the parliamentary joint committee.

CHAIR: My question was, 'Have you done any assessment of those?'

Dr Soutphommasane : We have certainly followed the proceedings with interest and we have looked at—

CHAIR: You have not done that?

Dr Soutphommasane : all of the submissions, but I could not give you a number off the top of my head which would break down the submissions in the way that you are after.

CHAIR: The underlying theme of that comment is that most of those opposed are either government agencies or taxpayer-funded groups. Is that in accord with your feel for the submissions for and against changes to 18C?

Dr Soutphommasane : If you are asking about the feel of things, I would say that there were a range of organisations that made submissions in support of the current state of the Racial Discrimination Act, including civil society organisations, multicultural and Indigenous organisations, and also some government agencies. But the support for the act in its current form is not confined to government agencies, as your question might suggest.

CHAIR: Again, I am simply asking you if you have seen this article. The witness to that inquiry:

… estimated 13 government agencies, 42 government-funded groups and six umbrella organisations covering government anti-discrimination commissions all made submissions against change.

Does that accord with your feel for the submissions made to that other committee? You may not have done it. I am simply asking you whether you have looked at those submissions and whether that would accord with your understanding of those submissions.

Dr Soutphommasane : I will have to take it on notice and check. I can add, if it is useful, that I believe about 400 submissions of a substantive nature were made. By 'substantive' I mean unique submissions and not form letters. That would be the kind of overall figure that we are looking at: close to 400 submissions, the majority of which appear to support the Racial Discrimination Act in its current form.

CHAIR: Actually there is no need for you—these are really questions for another committee. I was just trying to get your feel. This report, which may or may not be correct, says a total of 62 government and semigovernment agencies made submissions against the change. I am assuming that most of the other 400 will have been in favour of change.

Dr Soutphommasane : No. As I noted, submissions would have also been made by civil society organisations, professional bodies and multicultural and Indigenous representative community organisations.

CHAIR: They are statistics which we can get. I was just after your feel for that newspaper report I thought you might have studied this morning. Can we just go to the Leak case again—if I can call it that—and your account of your procedures, process and own actions in complaints that were made. I am conscious that one of your colleagues has previously indicated that it is not the role of the commission to encourage or advocate for complaints. That is my understanding of the commission's role, too. In that context, I am interested if you might be able to just walk us through your actions which have been reported, certainly, in a contrary way. As we all know, what you read and hear in the media is not always accurate, as Professor Triggs found out to her dismay. So I will give you the opportunity to walk us through that.

Dr Soutphommasane : We made extensive submissions on this, including in our submissions to the parliamentary joint committee's inquiry. I am happy to provide you with a copy of that, as it may take you through the matter and the detail you are after. I will reiterate what I have said previously to this committee on this matter, since I have been asked about this matter by this committee in the past. I received queries from media and the public with respect to that cartoon by Mr Leak asking what action the commission can take with respect to the cartoon. Accordingly, I gave information about the option that people have to lodge a complaint under the Racial Discrimination Act. I also made very clear in my statements to media and on social media the free speech exemptions under section 18D, which cover artistic expression and fair comment on matters of public interest.

I do not accept characterisations of my comments as urging people to make a complaint, nor do I accept characterisations that I solicited complaints. I have a function under the Racial Discrimination Act to promote public understanding and acceptance of the act and compliance with the act. That naturally should include giving people information about how they can lodge a complaint if they believe they have experienced racial discrimination or racial hatred.

CHAIR: Did you actually attend in person in Western Australia and speak to one of the complainants?

Dr Soutphommasane : No. Based on media reports and submissions to the parliamentary inquiry, I believe you are referring to the Aboriginal Legal Service of Western Australia. If it is helpful, I want to make absolutely clear to the committee that as commissioner I have no role whatsoever in handling complaints at the commission. The handling of complaints is something which falls under the president's function at the commission. So there is no question of me dealing with any complaints. And, for that matter, the commission does not make determinations about complaints, either. We are not a judicial or quasi-judicial body; our function merely extends to investigating and conciliating complaints.

CHAIR: We certainly want to pursue that in another context later, but not just at the moment. I appreciate that you have given evidence to another joint parliamentary committee, which is not this committee, and you would be aware that this committee has raised these issues with you before. So, what exactly was your own personal role in the Leak incident, if I can call it that for want of a better description.

Dr Soutphommasane : As I have just said, I play no role in handling complaints. In so far as I had any action pertaining to that matter I made comments to media and on social media regarding our complaints process and the Leak cartoon.

CHAIR: What I am trying to get is what your own personal involvement was. What did you do? Who did you ring? Who did you speak to? Who did you assist in making these complaints? Who did you give advice to that is relevant to this? That is what I want to know, to give you the opportunity to set the record straight.

Dr Soutphommasane : I have given advice to no-one and I have no involvement whatsoever with the complaints process. I would not have spoken to staff at the commission about this—

CHAIR: To the legal aid service?

Dr Soutphommasane : In making my comment to media and on social media, that is the extent of my involvement on this matter, so broadly characterised.

CHAIR: You did not speak to the complainant?

Dr Soutphommasane : No.

CHAIR: You did not speak to the Aboriginal legal aid service?

Dr Soutphommasane : No. I have had no contact with the Aboriginal legal service on this matter.

CHAIR: Or anyone else—

Dr Soutphommasane : I have had no contact with Melissa Dinnison. I have had no contact with any of the people involved.

CHAIR: My time has run out, so we might pursue this later.

Senator WONG: He has been asked and he has answered it. Maybe you want to continue—

CHAIR: Senator Pratt, do you or your colleagues have any questions for the Human Rights Commission at all?

Senator PRATT: No, we have asked questions. Thank you.

CHAIR: Senator Fawcett has the call.

Senator FAWCETT: Attorney, would you be able to provide the committee with an update on the 50th anniversary last year of the abolition of the White Australia Policy?

Senator Brandis: There is not a great deal to say. I think it is a pity that that in fact was not commemorated. In 1966 the Holt government began the abolition of the White Australia Policy. I was reflecting, when Dr Soutphommasane was giving his evidence earlier in the morning, about the breaking down of racist attitudes in Australia. What a long process this has been. Historically, I think we should mark 1966 as the most important year in that process. Might I remind you that in January 1966 Harold Holt became the Prime Minister and in that year his government took the first steps to abolish the White Australia Policy. He did not complete that during his time. It was progressed during the prime ministerships of Prime Minister Gorton and Sir William McMahon, it was carried forward during the Labor government of Mr Whitlam, and it was brought to completion during the government of Malcolm Fraser, in the late 1970s. So, over a period of about a decade or so, the position of both of the major political parties, which had been to embrace the White Australia Policy, was departed from, first by the Liberal Party, in 1966, at a time when the Labor Party were still led by Arthur Calwell, who was wedded to the White Australia Policy. Then, after Mr Whitlam took over from Mr Calwell in 1967, Mr Whitlam followed suit and led the Labor Party to embrace the abolition of the White Australia Policy, as well. So this was a bipartisan exercise, begun by Holt, carried forward particularly by Whitlam, and fulfilled by Malcolm Fraser.

I do think it is a shame that that has somewhat been lost. I think it is a shame that 1966 has not been recognised and celebrated as the first year when an Australian Prime Minister, reversing more than half a century of Commonwealth history beginning with the Immigration Restriction Act 1901, began to abolish the White Australia Policy. Now, that would have been a good project for the Human Rights Commission to take up—and I am not offering a criticism. I remember when Mr Wilson was the Human Rights Commissioner he promoted some online material that adverted to that fact. But I think when we talk about racism today we should acknowledge that it is now half a century since Australia has been embarked on this journey, led really by both sides of politics—initially by Holt on my side and then by Whitlam on the Labor side. So it has been a very long journey and a bipartisan one.

Senator FAWCETT: Rolling on from that, Professor Triggs, could you talk to us about the new Aboriginal and Torres Strait Islander Social Justice Commissioner. I understand that in February the new commissioner was appointed. Could you give us an update on who the new commissioner is.

Prof. Triggs : I would be delighted to. The Attorney has appointed Ms June Oscar—through cabinet and the Governor-General has formalised that appointment. We are delighted by it. She has had a great deal of experience in Fitzroy Crossing, particularly working with children and foetal alcohol syndrome leading to disabilities. She has a national reputation, but largely based on her work in that area. She begins her position with the commission on, I believe, 3 April.

Senator Brandis: Can I thank Professor Triggs, who has been the acting commissioner during that time. The government looked very carefully at a number of very good candidates before settling on June Oscar, and since Mr Gooda stepped aside to be the co-royal commissioner into the Don Dale affair Professor Triggs has assumed that burden. I am grateful to you, Professor Triggs, for acting in that position for these months.

Prof. Triggs : Thank you, Attorney.

Senator FAWCETT: Is Commissioner Santow here. If not, perhaps, Professor Triggs, could answer these questions. I am just looking at the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Australia's signing of that. Would you, on behalf of the commission, like to make any comments around that in terms of implications and responses.

Prof. Triggs : We see the government's announcement that it would be leading towards final discussions to ratify the optional protocol in, I think, November of this year as one of the most important initiatives to ensure that we have both an international and national system of monitoring of all places of held detention. That covers a very wide range of detention facilities, juvenile facilities, facilities where people with cognitive disabilities are held, as well as obviously prisons and immigration detention facilities.

Senator Brandis: This is quite a big deal in human rights, if I may say so. I know it has been a very high priority for the Human Rights Commission. It was driven in particular by the human rights commissioner Mr Santow, who convened a seminar on the matter in December of last year at the Human Rights Commission's premises in Sydney, which I opened. The optional protocol to the convention against torture was signed in 2009. The ratification did not progress, but late last year I took a recommendation to cabinet that Australia ratify OPCAT. Cabinet accepted that recommendation, so the foreign minister and I made the announcement on 9 February this year. Because most of the institutions—in fact, almost all of the institutions—to which OPCAT would be directed are state and territory institutions, there has been and will continue to be a close process of engagement with the states and territories on a range of issues, including financial issues, ahead of the announced official ratification, which will take place in December of this year. In terms of human rights achievements, this is, in my view—and I think it is fair to say that the human rights community acknowledges this—very much at the top of the agenda as a human rights achievement by this government.

Prof. Triggs : I will add just one thing to what the Attorney is saying. I do agree that it is a very significant achievement for Australia, and we really do applaud it and see it as a very important way of getting a thoroughly coherent national approach to the management of detention facilities, but I particularly want to mention also the work of Commissioner Megan Mitchell, the National Children's Commissioner, who has also done a great deal of work. Staff of the commission and previous presidents have also supported this for a very long time. We thoroughly welcome it. We are absolutely delighted. We think it really will move forward a national approach to detention facilities in a way that is going to be consistent with Australia's human rights obligations.

CHAIR: Senator Brandis, this just reminds me. I am not sure who it was, but there was a push for Australia to become a member of the UN Human Rights Council. What is the status of that?

Senator Brandis: The status is that Australia is a candidate for membership of the United Nations Human Rights Council, and that election will be in 2018—

Prof. Triggs : October this year.

Senator Brandis: Sorry. You are ahead of me. In October of this year. That push is being led, of course, by the foreign minister, Ms Bishop.

CHAIR: Professor Triggs, thank you for your answer to a question on notice I asked at the last hearing. It was question No. SBE16/105. You indicated in that, that during the six months prior to December—

Senator PRATT: Is it the practice of the government to detain us from moving on to our next set of witnesses?

CHAIR: I beg your pardon.

Senator PRATT: I just wanted to draw your attention, Chair, to the schedule for the committee.

CHAIR: Senator Pratt, as you are very well aware, the Senate has passed a resolution, which the Labor Party quite often access, that, so long as any senator has questions on a particular matter before an estimates committee, the committee will continue to hear those questions. I am simply abiding by the rules adopted by the Senate. If you do not like that—

Senator WATT: Specifically to have another seven-hour interrogation of Professor Triggs today.

CHAIR: If you do not like the rules that the Senate adopt, can I suggest that you and your crossbench colleagues change them.

Senator WONG: We could change it to get you to perhaps chair with a little courtesy—that would be good too.

CHAIR: Just ignore the interjections. I have two minutes left of Senator Fawcett's time. I think Senator Siewert has indicated she has some questions, and I have a lot more questions, so get used to it.

Senator WATT: Seven hours? We could make it to 10 hours.

Senator WONG: This is the government: 'Get used to it'.

CHAIR: Professor Triggs—

Senator WONG: Just so we are all clear, 'Get used to it'. Ian Macdonald in the chair: 'Get used to it.'

CHAIR: Senator Wong, I should not respond to you—

Senator WONG: You scheduled this item now.

CHAIR: but you and your colleagues in the Greens set the rules. If you do not like them, change the rules.

Senator WONG: In other committees people can operate within the rules.

CHAIR: Professor Triggs, if we can proceed and try and ignore the objections—

Senator WONG: Other people can manage to behave with some courtesy.

CHAIR: In answer to question No. SBE16/105 you indicated that during the six months prior to December 2016 there were five occasions on which your media advisers contacted journalists to correct stories. I am curious to find out what criteria are applied to determine when your media team contact the journalists to attempt corrections. What are the criteria that are applied?

Prof. Triggs : We tend to be concerned with factual errors, where there is clearly objective factual material that we, perhaps, reported accurately in our annual reports or in our submissions. Where we see reports have been seriously diverging from those facts, then I think we would approach the journalist. As I believe I said last time, there are journalist articles about the Australian Human Rights Commission and our work almost every day. We really would not be able to keep up with constantly referring matters back. If there is a criterion for determining when we approach a journalist, it would be to ring them and correct a fact which we can very clearly correct on the basis of objective evidence.

Senator Brandis: Senator Macdonald, you might recall during the 2013 election campaign, one of the things the then opposition promised to do was to elevate the human rights debate in Australia. I think we have had a lot more debate and profile for human rights issues, which is, of course, an intensely contested space, in the last few years than previously.

CHAIR: Yes; my time is finished, so I will have to come back to that particular line I was following.

Senator McKIM: Professor Triggs, I just want to take you to the Scanlan Foundation's Mapping Social Cohesion report. Are you aware of that report?

Prof. Triggs : I am.

Senator McKIM: Yes, thank you. I also refer you to your commission's Freedom from Discrimination report from 2015, and ask you if you think that it is still the case that many Australians who experience racism often do not know to whom they should complain, or how they should complain. Does the commission still regard that as a challenge out in the community?

Prof. Triggs : I will ask Dr Soutphommasane to answer that question, but it is generally an issue. The public is not as well informed as we would like about the opportunities to bring matters to the commission, but as you would be aware, we do receive something like 18,000 or 20,000 inquiries a year. That is a lot, but at the same time, there are many others who might be assisted by the commission were they to be aware of the processes. But if I may, I will pass to Dr Soutphommasane.

Dr Soutphommasane : As Professor Triggs says, there is under-reporting of racial discrimination for some of the reasons you have highlighted, namely, some in the community may not be necessarily aware of the mechanism for making a complaint with the Human Rights Commission. For example, members of very newly arrived migrant communities or members of remote Indigenous communities may have very limited familiarity with the work of the commission and, therefore, are not aware that they can avail their rights under the Racial Discrimination Act. It should also be noted that there may be a general reluctance among those who experience racial discrimination to make a complaint, very simply because it requires effort, time and resilience for some people who experience discrimination to come forward. It is the experience of the commission that many of those on the receiving end of discrimination would prefer to forget about it and not revisit it, which is what they would have to do if they did make a complaint, and then attend a conciliation, and then have a dialogue with the respondent. Those two factors would go some way to explaining why you would see an under-reporting of racial discrimination.

Senator McKIM: Could you confirm for the committee that the commission does actually have a responsibility to promote, firstly, its existence, but secondly, the fact that there are mechanisms available for people who feel that they have been subjected to racist hate speech, for example.

Dr Soutphommasane : Yes, it is a function, as I mentioned previously, of my office to promote public understanding and acceptance of the act. I also believe there may be provisions in the Australian Human Rights Commission Act which relate to education or public understanding of human rights, but I am happy to defer to my president on that.

Prof. Triggs : That is the case, and I would say one of our top three priorities is actually education. We are working with the curriculum, educators and, indeed, more recently, deans of schools of education so that teachers have a better understanding of human rights and a better understanding of the role of the commission as a part of the democratic institutions of Australia in giving effect, and genuine access, to justice.

Senator McKIM: Commissioner Soutphommasane, you mentioned one group which may lack an adequate awareness—if I can paraphrase you—of opportunities available. Are there any other particular groups in our community who you think are vulnerable to not understanding their rights and the mechanisms available to them should they feel that they are the victims of racist hate speech?

Dr Soutphommasane : I mentioned newly arrived migrant communities and also members of remote Indigenous communities in particular. Based on our consultations in the past, we have also had it reported to us that young people, particularly those of a culturally diverse background, may not be familiar with the law and the protections that are afforded by the law concerning racial discrimination and hatred.

Senator McKIM: Attorney, do you think the commission's resourcing is sufficient for it to overcome those barriers that we have just heard about—lack of awareness and understanding?

Senator Brandis: The commission, I think, does what it can with the resources that it has.

Senator McKIM: I know that it does.

Senator Brandis: Now, under this government, for the first time in decades, every commissioner is a full-time commissioner. That has meant that within the overall envelope of the commission's resources there are some administrative functions where savings have had to be found. I cannot speak in detail about that, but what the government decided to do was to ensure that all commissioners were full-time commissioners. That was never the case under the previous, Labor, government. It was not the case under the Howard government either. I think you have to go back to the 1980s to find a time when the commission had a full complement of full-time commissioners. It is evident from the profile the commission has in the community that those commissioners are doing a very strong job in promoting the values that the Australian Human Rights Commission Act requires them to promote.

I said before that this is a contested area. We do not always agree. I do not agree with Dr Soutphommasane on some aspects of the handling of 18C complaints or indeed with Professor Triggs, but that is not the point. The point is that the commission is very active and engaged in what is, on any view, a difficult and contested front.

Senator McKIM: Yes, Attorney, but that active engagement is entirely appropriate, is it not? It ought not be confused with soliciting complaints, which is an allegation that has—

Senator Brandis: I did not say that.

Senator McKIM: No, but it is an allegation that has been put publicly by others. I have not suggested that you have put that. I am just asking you for a response.

Senator Brandis: I heard what Dr Soutphommasane had to say in response to Senator Macdonald's questions and I accept what Dr Soutphommasane says.

Senator McKIM: Thank you. Do either Professor Triggs or Dr Soutphommasane have anything to add to that matter in terms of the resourcing and the potential capacity constraints of the commission in fulfilling its educative function?

Prof. Triggs : I think the Attorney has accurately presented the point that we do, for the first time I think, have every one of the seven potential positions filled. We have been very pleased to see that and in particular, if I may say so, the splitting of what was a combined position of age and disability discrimination into two portfolios. That has been very important but it has had a flow-on effect on the ability of the commission to carry out its functions. In other words, we have become top-heavy, to put it very simply. We do not have the ability to hire the staff and to maintain the staff in order to meet many of our obligations. That decline in funding has been at least a 10-year phenomenon, and every year we sort of slip back. We have been very proud of the fact that our complaints handling process has kept up with complaints but, over the last year or so, we now have a growing backlog. These are matters of concern to us. Also a matter of concern is that we must be independent to government. That is the critical point about an organisation of this kind with 'A status' under the United Nations principles. We have just been reconfirmed in that position. We are very proud of that. I think Australia should be proud of it along with, obviously, the Attorney. But, nonetheless, to maintain that independence, we need to have funds to decide for ourselves what matters we see as a priority, to hold inquiries, to conduct research and to ensure that we are meeting what we perceive to be the significant problems in Australia. So I must of course confirm that we have a declining ability to meet our statutory obligations.

Senator McKIM: Thank you.

Senator Brandis: It was in the 2014 budget, I think, that the commission took a significant haircut, as did a lot of agencies in that particular budget. To the best of my recollection, there has not been a cut like the 2014 budget in more recent years—has there, Professor Triggs?

Prof. Triggs : The cuts were for three years, but I think the area that perhaps has been of concern is that some of our funding was taken to give to the royal commission on institutional child sex abuse. Obviously we support that work—of course—but we are very much hoping that that funding will be returned to the commission when the royal commission reports. If it does then that assists the commission for the future in a very significant way, so we are very much hoping that that funding will be restored.

Senator McKIM: Thank you. That is abundantly clear.

These may be questions to Commissioner Soutphommasane, but I will offer them up to the table. First, with regard to the 'Racism. It Stops with Me' campaign: is that funded out of existing commission funds?

Dr Soutphommasane : Yes.

Senator McKIM: So there is no extra funding allocated for that?

Dr Soutphommasane : No.

Senator McKIM: Are you able to inform the committee what the forecast funding allocations are in the commission's budget for that campaign for the future?

Dr Soutphommasane : I can take that on notice, but, to give you a general sense of the figure involved: it would be about $100,000 per year.

Senator McKIM: Thank you. I am happy if you wish to take these on notice as well. How many staff would be working on that? I guess you are not going to get many staff involved with that for $100,000. Could you give an indication of what kind of events and matters you would be looking at pursuing as part of that campaign? Have you collected any baseline data? How do you intend to assess the efficacy of that campaign? What data have you got and what data will you collect as part of that campaign and any evaluation process to determine the success or the impact of that campaign?

Dr Soutphommasane : Yes. I am happy to give you a preliminary answer. We currently have a secretariat officer who works on the campaign on a part-time basis. There are also other staff who contribute to the campaign from time to time. In terms of events and activities: we are currently developing a community service announcement courtesy of a $50,000 grant that has been given to us by the Department of Social Services, which is a member of the National Anti-Racism Partnership, which oversees the work of the strategy and 'Racism. It stops with me.'

In terms of baseline data and evaluation: we did conduct an evaluation of the National Anti-Racism Strategy a few years ago, and I would be happy to give you further details of that. Among the things we measure is whether supporters of the campaign feel that they have a better understanding of issues of racism and whether they feel empowered to take action on racism. I can advise you that the campaign evaluation was very positive on measures such as those.

Senator McKIM: Thank you. I wanted to raise with you a matter that has just been drawn to the attention of the Senate. It has been drawn to the attention of the Senate in recent times by a person of some standing in the community who has recently complained of a group of people having something taken from them because of retrospective changes that were made by this parliament. The person I am referring to likened those changes to the work of Hitler, Stalin and Idi Amin. Of course, I am referring to that noted champion of human rights Senator Ian Macdonald here, and he was complaining about parliamentarians who have lost their gold card entitlements. I wanted to ask whether the commission has received any complaints from Senator Macdonald or any other member of parliament in regard to this egregious abuse of human rights, as Senator Macdonald has described it.

Prof. Triggs : To my knowledge we have received no complaints.

Senator McKIM: So there have been no complaints at all. Perhaps I could ask you to take that on notice.

Prof. Triggs : I will. I am aware of none, but I will certainly take it on notice and check.

Senator Brandis: Senator McKim, I imagine you are trying to be sarcastic.

Senator McKIM: No. If you did not hear Senator Macdonald speak—

Senator Brandis: Can I tell you that I have known Senator Macdonald for some 40 years in the Liberal Party, and it is absolutely accurate to describe him as a champion of human rights.

Senator McKIM: I do not think he is. I think his record speaks for itself—

Senator Brandis: It does.

Senator McKIM: but I do not intend to engage in that matter any further. Thanks, professor.

CHAIR: Thanks, Senator McKim. One time you might actually listen and read what is said and not put your interpretation on what is said.

Senator McKIM: You are the one that mentioned Idi Amin and Stalin in the Senate. That was you, not me.

Senator Brandis: You are the one who sits in the same party room as Senator Lee Rhiannon; don't give us Stalin!

CHAIR: If you read or listened properly, you would not make such stupid comments.

Professor Triggs, back to where I was. Thank you for advising of the criteria used by your media team to correct articles. I am wondering if The Saturday PaperRamona Koval article was actually assessed by the media team. Are you or Ms Raman aware of whether they assessed that Ramona Koval article?

Prof. Triggs : I am not aware that they have.

CHAIR: Is the executive director aware of that?

Ms Raman : We would have to take that on notice. I would have to speak to the media adviser to check whether she made any contact with Ramona Koval.

CHAIR: If you would do that, that would be great. I am curious how this article which is so full of incorrect statements and mistakes would have slipped through the system and be left published and uncorrected. We have heard previously how inaccurate the statement was. If you could do that, that would be useful.

I thank the commission for its answer to questions on notice SBE 16043, which detailed the commission's proposed technical reforms to its complaint handling procedures. Professor Triggs, at the last estimates in October you advised that it would be your preference for the 'extremely low' threshold for complaints to be lifted. Did the QUT case get as far as it did because this threshold was so low?

Prof. Triggs : No, it did not. Perhaps the cases that have been in the media are ones that would have nonetheless been taken forward to at least a preliminary investigation and complaint process, depending of course on what the threshold is. But, as the threshold stands at the moment, those cases were clearly ones we had to take. We had to embark on the investigation and conciliation process. If that threshold were to be lifted, it remains possible that they would have continued through the process on the basis that there appeared to be sufficient substance, but that would have to be a matter of investigation.

CHAIR: So the QUT case got as far as it did not because the threshold was extremely low.

Prof. Triggs : I think that is right. There was substance to the case, and therefore it was a matter that we would have investigated and conciliated according to our statute.

CHAIR: Can you indicate to the committee what the substance of the incident was?

Prof. Triggs : We have made a very detailed submission.

CHAIR: I am aware of that and I have read it. Thank you.

Prof. Triggs : Right. And the answer lies there, but in my opening statement I did go through each of the comments that was made. We have to consider those comments on their face, and the comments were, as I have said, of some substance that warranted further investigation.

CHAIR: Which was the comment? Can you just repeat it?

Prof. Triggs : There were many comments. I can read them again if you would like me to do so.

CHAIR: Please.

Prof. Triggs : This is all in Hansard, but I can certainly repeat it. It is in the Hansard of 17 February. These were comments that were posted on the public Facebook page called 'QUT Stalker Space'. The comments were: 'I just got kicked out of the unsigned Indigenous computer room. QUT's stopping segregation with segregation.' The next: 'That is more retarded than a women's collective.' The third: 'ITT niggers.' The fourth: 'I wonder where the white supremacist computer lab is.' The fifth: 'Today is your lucky day. Join the white supremacist group and we'll take care of your every need.' The next: 'By'—and I will not repeat the person's name—'logic, it's also fine to start a KKK club.' And the last: 'How did the Aboriginal gentleman gain entry to the university? Through the window.' Those were the comments that were the subject of the complaint by Ms Prior.

Senator Brandis: I think it is fair though—and I do not want to be controversial about this—to point out that some of those attributed remarks to certain individual students were denied by them and their denial was accepted, so there are some, including the remark about being kicked out of a computer room et cetera, that proceeded to determination but others, particularly about the KKK and so on, were explicitly denied by the student against whom that allegation was made and those denials were accepted.

CHAIR: That was my understanding. Thank you, Minister. So it was really that first comment that was the subject of the Human Rights Commission's investigation?

Prof. Triggs : No, not at all. We received a coherent complaint from Ms Prior's solicitors that set out those comments along with others and we dealt with them as a whole on the basis that on the face and before any detailed investigation they appeared to have sufficient substance to warrant us employing our processes.

CHAIR: Professor Triggs, I thank you for answering these questions. Last time we asked similar questions you claimed that there was a sub judice rule. Is the court case that you claimed last time made this discussion sub judice, or whatever the technical term might be, still going?

Prof. Triggs : The decision is still going but, after the previous Senate estimates hearing when this matter was raised and I was unable to deal in detail with the QUT case, the Attorney answered my letter of request as to whether a public interest immunity claim should be made. His response to my query as to whether that claim should be made was that that was a matter for me as president. I then sought some legal advice from the Australian Government Solicitor and for various legal reasons I made a decision that it was now possible for me to release the details, because I can readily understand that it is in the public interest that that particular case be better understood on the facts. I did so partly also of course because I wanted to be able to ensure that the freedom of speech inquiry was as well informed about the matter as it could be.

CHAIR: Thank you for that. Can you tell me the date that you made your decision?

Prof. Triggs : I would have to take that on notice. It was after I received the advice from the Australian Government Solicitor.

CHAIR: Do you know when that was?

Mr Edgerton : I understand that a decision was made in the week prior to the president giving evidence to the Parliamentary Joint Committee on Human Rights on the last occasion, which was 17 February 2017, so it was during that week.

CHAIR: Was this before or after you spoke about this particular incident very openly on the ABC's 7.30 on 7 November 2016?

Prof. Triggs : It was after, but I did not speak openly. I made it very plain before I went on that program that I would not discuss the QUT case. Then, live on air, of course it was the first question that was put to me. So I was in a very difficult position. My primary objective—and I stated it over and over again—was that I could not reveal details of that case; that I could speak only in the most general terms about how we handle our complaints processes.

CHAIR: But the record will show what was actually said on that report. Did you discuss the QUT incident specifically?

Prof. Triggs : I did not discuss any of these facts. I just said that basically the matter had substance and we could properly consider it under our act.

CHAIR: Does your media group have a transcript of that 7.30 report?

Prof. Triggs : I believe we could obtain one.

CHAIR: Would you mind, on notice, providing that to the committee?

Prof. Triggs : I would be very pleased to do that.

CHAIR: Relatively finally, I think you have said at the other committee and I think sometimes at this committee that you were keen to get conciliation in the QUT case.

Prof. Triggs : Our job at the commission is to bring the parties together and to encourage them to discuss their respective concerns and to conciliate the matter if possible. That is our primary aim in disputes of this kind.

CHAIR: I know you have explained this to the other committee, but I still find it difficult to follow. You wanted conciliation and you wanted to bring the parties together yet you did not tell the alleged perpetrators of the comments that allegedly based the case.

Prof. Triggs : I think it has to be understood that the conciliation process under the commission's statute is dependent on the voluntary consent of the parties. When Ms Prior, who was bringing the complaint, and then Queensland University of Technology made it very clear that, if the students were to be approached at all, they wanted to have carriage of this. May I also point out that for the first year nothing happened. In the second year we got to about 14 months before it was clear from Ms Prior that she intended to pursue against the students. In other words, the first 14 months or 13 months of the time that the commission was nominally handling this complaint, the parties themselves repeatedly and expressly asked us not to approach the students because they believed that they would achieve a conciliation without drawing them into it. My personal view is that Queensland University of Technology made this request of us in good faith in the hope that conciliation could be achieved. So there were private negotiations between the complainant, Ms Prior, and Queensland University of Technology in circumstances in which they had repeatedly asked us not to contact the students and that they would handle the matter themselves.

CHAIR: Basic common sense would suggest that, if you needed the voluntary consent of the parties, the parties must surely include the individuals who allegedly first made the statement. QUT is not a party. QUT did nothing except provide a room and sign it. But that was not the cause of the complaint. The complaint was that someone allegedly said something, and yet that person was not told for 18 months. So how can you get the voluntary consent of the parties when the parties do not even know that the complaint has been made?

Prof. Triggs : Perhaps I could first point out that Queensland University of Technology was a party, along with some of its employees. So they were definitely parties.

CHAIR: You will have to explain that to me.

Prof. Triggs : But, secondly, we were not aware that Ms Prior intended to proceed against the students. Indeed, we had specifically asked Ms Prior to consider not proceeding at all against the students because it would be possible to resolve the matter with the Queensland University of Technology.

CHAIR: But QUT's involvement in the whole incident, as I read it, was that it provided a room with a sign on the door. That was not the cause of the complaint. The cause of the complaint was a statement alleged to have been made by an individual. This is the bit I cannot understand, and I must say that most Australians find it difficult to follow as well.

Senator McKIM: I do not think you have permission to speak for most Australians.

Prof. Triggs : Senator Macdonald, I wonder if I could pass to the deputy director.

CHAIR: Sure.

Prof. Triggs : I can only repeat that the Queensland University of Technology was a party to the complaint made by Ms Prior right from the very beginning.

CHAIR: What was her complaint about the QUT? Could you tell me that?

Prof. Triggs : I will pass to Mr Edgerton.

Mr Edgerton : There were two aspects to the complaint. Initially, Ms Prior had complained about some comments that had been posted on QUT Stalker Space, but she also complained about the Queensland University of Technology's subsequent dealings with her complaint. So she had complained initially to the university, and then she was concerned about how her complaint had been dealt with by the university.

CHAIR: So were all your initial investigations about how the university dealt with the complaint and not the substance of the issue?

Mr Edgerton : There were two separate substantive issues. One of those was a complaint about the particular comments, but there was also a complaint about how she felt she had been treated by the university. She claimed that that was racial discrimination.

CHAIR: I can accept that the QUT were involved in the way they did or did not handle the complaint. But it all arose because an individual allegedly made a racist statement.

Mr Edgerton : Not one individual. A number of comments were made—

CHAIR: Well, several individuals.

Mr Edgerton : by a range of individuals.

CHAIR: But none of them were advised. This is the thing that I find—

Mr Edgerton : I am happy to explain that.

CHAIR: I am not terribly bright, but neither are most Australians who follow this. How can you have the voluntary consent of the parties and how can you involve a conciliation when the alleged perpetrators were not even told?

Mr Edgerton : I would not characterise them as perpetrators because that suggests there is some sort of criminal element to this.

CHAIR: Well, call it what you like. The doers then.

Mr Edgerton : As I said, there were two aspects to the complaint, which were the complaint about the statements and the complaint about the conduct by the university. As far as Ms Prior was concerned, her primary complaint was against the university. The Parliamentary Joint Committee on Human Rights has heard from the lawyer for the university, who said that, in all of that one-year period prior to the matter coming to the Human Rights Commission, her primary complaint was against the university.

CHAIR: With respect, I am questioning the Human Rights Commission and not the lawyer for the university or the university.

Mr Edgerton : I understand that.

CHAIR: If Ms Prior had an issue with how the university dealt with her complaint, that is fine. Deal with that.

Mr Edgerton : Her view was that that was the primary aspect of her complaint. When the matter finally came to—

CHAIR: But it only arose—

Senator McKIM: Chair, I have a point of order, if I might. I do think as chair of this committee you ought to show the courtesy to Mr Edgerton of allowing him to finish his sentences, and then you can ask your next question. I think you are being very discourteous.

CHAIR: Thank you, I will allow the point of order. Not the being discourteous part, but I will allow the point of order about finishing your answer Mr Edgerton.

Mr Edgerton : Thank you, Senator. When the matter came to the Human Rights Commission it was one year less a day from when the particular incidents occurred. The Human Rights Commission has the ability to terminate complaints if they are made more than 12 months after the particular incident occurred. What the lawyer for the university said is that effectively Ms Prior was filing her complaint with the commission to preserve her position. She included the names of the students in her complaint, but her primary complaint was still against the university. At that stage, Ms Prior and the university had been negotiating for a number of months. They clearly knew what the issues were and they told the commission that they would be able to sort the matter out by continuing to negotiate between themselves without the students having to be involved in the complaint.

That was why Ms Prior asked the commission not to contact the students. QUT agreed to that because they thought that the matter would be able to be resolved between themselves. As it turns out, they did get to a point where they had reached the in principle agreement, subject only to signing a deed of settlement between them, so there was a real prospect that this matter could have been resolved, had that deed been executed, without the students ever having to be involved in the process.

CHAIR: What happened to the human rights of the students who were allegedly, for 12 months, the subject of semi-judicial—or whatever you would call it—actions, complaints and discussions?

Where are the human rights for the students when they do not even know that they are the cause, and possible defendants, of possible action in the future? They are not even told. They are not given the opportunity to collect their evidence, to understand what they are being accused of or to find other things. Where were their human rights?

Mr Edgerton : It was in two ways. When the matter first came to the commission, the commission was looking at the rights of the students because the commissioner initially recommended that Ms Prior proceed only against the university and not against the students. Had that advice been taken, the students would not have been a party to the case at all—they would not have been respondents. There would have been no human rights issue, as far as those students were concerned. The second way is the way in which Ms Prior and the university, together, thought that they would reach a settlement. They thought that they could agree to a resolution of the matter, as between themselves, which would also cover the students. In those circumstances as well, the human rights of the students would have been kept.

CHAIR: So the Human Rights Commission recommended to Ms Prior that she only proceed against the university. Allegedly, the infringement on Ms Prior's human rights was not the statement but that the university had not dealt with her complaint appropriately?

Mr Edgerton : That was her primary advice.

CHAIR: So that was the advice of the Human Rights Commission to Ms Prior: 'Don't bother about the alleged doers of the statement that has caused all this—just deal with the university.' It was not, it seems, for any human rights grounds, but because their procedure in dealing with complaints was not up to scratch.

Mr Edgerton : It was a human rights ground that she had raised.

CHAIR: What was it?

Mr Edgerton : She had raised a complaint under section 9 of the Racial Discrimination Act.

CHAIR: What is that?

Mr Edgerton : It is a prohibition on racial discrimination.

CHAIR: How was the university guilty of racial discrimination?

Mr Edgerton : That is a question that maybe you would have to ask Ms Prior. The commission was not alleging that the university—

CHAIR: You told her not to proceed against the students but to proceed against the university because, I assume, they had breached a human right, and now you are saying that it is not a human right.

Mr Edgerton : We were not providing her with legal advice to proceed against the university. When the matter came to us, it was clear that her primary complaint was against the university. The commission suggested that she only proceed with that claim and not with the complaint against the students. She asked us not to contact the students because she thought that she would be able to reach a resolution with the university. Ultimately, that was not able to be reached, and at that point she decided that she did want to proceed with her complaint against the students. It was at that point that the commission said, 'If there is going to be a complaint against the students, we require them to be notified.'

CHAIR: Eighteen months after the event.

Senator Brandis: If I may, I think there is a human rights issue because, on any view of these facts, Ms Prior's complaint against the university relied upon material allegations against the students—

Senator PRATT: Point of order, Chair.

Senator Brandis: for the conduct that they had engaged in.

CHAIR: Hold on a minute, Senator Brandis; I will deal with the point of order.

Senator PRATT: You have been very strict with your speaking times of 15 minutes per speaker. I do not believe that you have set—

Senator WONG: You have not set the timer for yourself.

Senator PRATT: Chair, you have gone well over your 15.

Senator WONG: There you go: the timer has gone off.

CHAIR: You are wrong.

Senator Brandis: If I may continue, Chair.

CHAIR: You were quite wrong—it was up to my 15 minutes.

Senator WONG: Chair, I would just—

CHAIR: In my normal practice—

Senator WONG: Chair, a point of order.

CHAIR: In my normal practice, I will allow the answer to be completed before passing to the next senator. Now, just hang on, Senator Brandis; we have another point of order.

Senator WONG: If you wish the Attorney to finish, I will intervene after that. If you want the Attorney to finish, I am happy for that to happen.

CHAIR: You raised a point of order, Senator Wong.

Senator WONG: No; you said you were going to the Attorney to finish his answer. I am saying that I will wait for that to occur.

CHAIR: That, again, is my practice in this committee all the time: if the bell rings at the time an answer is being given, we show the courtesy of allowing the answer to be completed. Sometimes, if there is clearly an obvious follow-up question, then I will allow that. I will allow the Attorney to finish his answer. I will then see if any other senator wants to question the Human Rights Commission and I will go to them. When they are finished, I will come back to my line of questioning, which is—I might say—almost completed, but, if you want to prolong these hearings, I am happy to acquiesce in your games. So, Senator Brandis.

Senator Brandis: Mr Chairman, the point I was making is, with all due respect to Mr Edgerton, it does seem to me that there is a human rights issue here that concerns the students for this reason: on any view, the complaint Ms Prior had against the university relied as one of its key material grounds upon statements that had allegedly been made by the students. In progressing a complaint against the university, Ms Prior, materially, was accusing these students of making racist statements, and that is a serious thing to allege against someone. I would have thought that the principles of natural justice require—let us run through them—firstly, that a person be acquainted with an allegation that is made against them with particularity and, secondly, they have the opportunity to respond to that allegation which includes, in appropriate circumstances, confronting and disputing the assertions of their accuser. I think it is artificial to hide behind the form in which this was initially presented as a dispute between Ms Prior and the university, and to deny the substance that Ms Prior was making allegations, in the prosecution of her case against the university, against these students, which were serious allegations which could potentially have done them serious reputational harm. And they were not, at least for an unacceptably long period of time, acquainted with the allegations and given the opportunity to respond to or refute them.

CHAIR: Thank you for confirming the questions I was raising.

Senator WONG: Chair, I understand that you are very interested in this. I also understand that these matters have been—

CHAIR: What is your point of order?

Senator WONG: May I finish?

CHAIR: What is your point of order?

Senator WONG: I am asking a question of you. I understand that these matters have been traversed already at the Human Rights Committee. Given the timetable that you yourself used as an excuse not to allow Senator Brandis to explain—

CHAIR: What is your point of order?

Senator WONG: I am asking if you could inform the committee how much longer you intend to blow the program out?

CHAIR: I do not set the rules, and if you were here yesterday—

Senator WONG: It is a simple question.

CHAIR: If you were here yesterday you would have heard Senator Carr, your colleague, go on for hours over the appointed time. The program, as is adopted by the committee, which you raise in your point of order, clearly indicates that the times are indicative because there is a standing order—

Senator WONG: How long? It is a simple question.

CHAIR: There is a standing order of the Senate that says as long as any senator has any questions to ask of witnesses you will continue with that, so there is no point of order. Senator McKim, did you have a question?

Senator McKIM: No, but I also would like to know how long you intend to continue.

CHAIR: Okay—

Senator WONG: I think Senator Hinch has a question, Chair.

CHAIR: On the Human Rights Commission? Senator Hinch, I will go to you.

Senator HINCH: I have a couple of questions for Dr Soutphommasane. You mentioned 18C and 18D earlier this morning. You are probably aware of the joint committee report into possible changes to 18C.

Senator Brandis: Senator Hinch, I do not think that report has been tabled yet.

Senator HINCH: No, but I can ask the Doctor about media reports this morning—not about the report itself. The media reported this morning that this joint committee has decided unanimously to remove the words 'insult', 'offend', maybe even 'humiliate' and possibly replace them with 'harass'? I just wondered what your reaction would be to that in your position?

CHAIR: I think I should rule the question out of order on the basis that is hypothetical.

Senator HINCH: All right, I have asked the Doctor about media reports today that are saying, on leaks from inside this committee, that the words 'offended' and 'assault' are going to be removed.

CHAIR: I really do think that is a hypothetical. Nobody knows what this is going to do. If we believe media reports, we certainly would—

Senator HINCH: Fake news.

CHAIR: Fake news.

Senator PRATT: Just ask if you would support the removal of—

Senator HINCH: I will rephrase the question.


Senator Brandis: Surely Senator Hinch can answer a question about his own views?

Senator HINCH: What is your position, in your official capacity, to removing the words 'insult' and 'offend'?

CHAIR: Yes, I will allow that question.

Senator HINCH: Thank you.

Dr Soutphommasane : Before I answer that question, I believe the media reports this morning have stated that the committee will not make any such recommendations. It is a speculative news report—

CHAIR: That was why I would not allow the question on hypotheticals.

Dr Soutphommasane : And I appreciate your concern, Chair. We will, of course, wait to see the final report, but I believe the media reports this morning and yesterday did make clear that it appears the committee will not make any recommendations as such.

As to your question about my position: my position has been consistent. I believe the current form of the Racial Discrimination Act strikes an appropriate balance between freedom of speech and freedom from racial vilification. I do not believe there is a persuasive or compelling case for changing a provision that has existed for more than 20 years and which provides all Australians with protection against racial hatred and vilification.

Senator HINCH: Even if some of us are personally insulted or offended that such subjective words as 'assault' and 'offend' are in a piece of legislation?

Dr Soutphommasane : I have two things to say on that. First, we are talking about things which may offend, insult, humiliate or intimidate on the grounds of race. We are not talking about someone being offended or insulted on the basis of their political beliefs or the football team they may support. The second thing to note is that courts have interpreted the provision in an entirely consistent manner during the past two decades, which is to say that a contravention of the act, namely section 18C, will not be found unless the act in question causes 'profound and serious effects, not to be likened to mere slights'.

Section 18C is also balanced by section 18D, which operates to mean that one may be racially offended, insulted, humiliated or intimidated but that that in and of itself may not be sufficient for a breach, given that exemptions apply. So if you do something that is an artistic work that is related to a genuine purpose in the public interest, or that is fair reporting or fair comment then, provided you do those things reasonably and in good faith, a breach will not be found.

Senator HINCH: Why was Bill Leak not then found innocent immediately under 18D? Why was 18C even brought into it?

Dr Soutphommasane : The commission does not make findings about the Racial Discrimination Act or, for that matter, the other pieces of legislation which it administers. We exist to inquire into complaints and conciliate those complaints, so the mere fact that we would seek information about a complaint does not imply that the commission has made a judgement about a breach occurring. Since this relates to the complaint-handling aspects of the commission's work, which is not my function as Commissioner, I am happy to turn to Professor Triggs and Mr Edgerton to elaborate on that, if you wish.

Senator HINCH: Professor Triggs, people were calling up to complain, and the Doctor said, 'You have some complaints about Bill Leak'. Why was that not pointed out to them immediately, the complainers, that it was 18D and he was in the clear?

Prof. Triggs : There is a very important reason for that, and that is because 18D requires a good faith element. We gave Mr Leak the opportunity to advise us that he had produced that cartoon in good faith. Had he responded by making a good faith point, we would almost certainly have ended the matter precisely at that moment. But, despite at least two requests to him to justify an 18D basis for the cartoon, we received no response. Perhaps I could ask Mr Edgerton to elaborate on that, but that is the key issue there. The matter was in fact handled relatively speedily, but the only delay related to the fact that we had not received a response from Mr Leak or News Corp.

Senator HINCH: But a cartoonist could be forced to do this every day. It is satire; it is satirical and it is fair comment.

Prof. Triggs : It may very well be fair comment; it may very well be in good faith; it may be part of an artistic exercise; it may be accurate. All of those things, however, have to be suggested—in particular the good faith view has to be put by the respondent themselves. In any system in which you have a process of making a complaint—and we have the job of dealing with it—there must be an opportunity, as the Attorney has quite rightly said, for the principles of natural justice, where the party complained against has an opportunity to explain what the justification might have been. In the Leak case, that justification was never provided, so the matter was ultimately terminated. But it could have been terminated much earlier if at least a simple statement been made that he acted in good faith.

Senator Brandis: Senator Hinch, I think I should say in defence of Professor Triggs that she in her contributions to this debate—and I do not agree with all of her contributions to the debate but she has made the point that there is scope for process improvements to the operation of the Human Rights Commission's proceedings. Your question was: why was this allowed to happen? The direct answer in my view is: because the process has become the punishment. And, as anyone who is familiar with, for example, Franz Kafka's novel The Trial will know, the process can be the punishment, and I am afraid that is what has happened too often with the Human Rights Commission.

Senator HINCH: It seems to me in this case it was, 'Je suis Charlie, but bugger Bill Leak'. But never mind. My final question: Dr Soutphommasane, you talked earlier this morning about the immigration debate and how that can trigger racial vilification. Does it concern you that former Prime Minister Abbott is calling for a cut in immigration; Senators Bernardi and Hanson are both calling for cuts in immigration; you have got the Trump phenomenon in the US where they are banning people from Muslim countries? Is this what you were referring to this morning; that this is leading to that situation?

Dr Soutphommasane : I want to make absolutely clear that I believe there are no questions which should be off limits in a liberal democracy. We should be free to debate issues freely, and hopefully responsibly, and that extends to matters of immigration. However, as a society—and this goes to some of the Attorney-General's remarks about 50 years on from the dismantlement of the White Australia policy—it is absolutely vital that we defend our non-discriminatory immigration policy if we are to exercise our liberal democratic values. By all means, there are legitimate questions to be asked about immigration and the level of immigration we have, but I believe we can conduct those debates within the limits of values of nondiscrimination. That is to say, I believe it can be very dangerous to entertain the idea that we can use race or religion as a criterion for admitting people as immigrants to Australia.

Senator HINCH: Targeting religions or race. Yes. I want to ask you one more quick question so I have this in my own head. You told Senator Macdonald—about the Leak case, you said that the media was wrong, that you did not solicit complaints from people about Bill Leak. Is that correct?

Dr Soutphommasane : Yes. Some of the media reports have implied that I urged people to make complaints. The word 'urge' is one that I never used in my public comments. I made very clear in my comments that there were indeed in section 18D exemptions that protect freedom of speech. But I did also inform people that, if they believed they had experienced racial discrimination or hatred, they did have the option of lodging a complaint with the Human Rights Commission.

Senator HINCH: All right. Thank you, Doctor. Thank you, Chair.

CHAIR: Thanks, Senator Hinch. I appreciate that. Mr Edgerton, I take it you have a legal background, do you?

Mr Edgerton : That is right.

CHAIR: Are you the commission's legal adviser as well as acting deputy director?

Mr Edgerton : Sorry—acting deputy director of the legal section. I am one of the commissioners' legal advisers.

CHAIR: Were you around at the time of this QUT case? Were you personally involved?

Mr Edgerton : I was part of the commission. I was not personally involved in the handling of the case.

CHAIR: Did the legal team at any time anticipate that perhaps Ms Prior's desire for conciliation might not be completed and that legal proceedings might evolve? Did it ever occur to any of your legal team that this might be an option.

Mr Edgerton : This was not handled by our legal team. We have dedicated investigators and conciliators who handle complaints. But, in any complaint that comes to the commission, if it is a complaint of unlawful discrimination, there is always the potential it could go to court, and investigators and conciliators do routinely advise people that there is that potential.

CHAIR: Okay. But not in the case of these students, because they were not told for 18 months. Surely your legal team or the investigators might have anticipated—hopefully not probably, but possibly—that the conciliation would not work and, therefore, the real defendants, the real 'doers', had 18 months after the event to try and gather their evidence to prove in some cases that they were not their posts. Did this not occur to either the investigators or the legal team advising the commission?

Mr Edgerton : It did, and I take the appoint that the Attorney made before that it is important in cases where people's legal rights are affected that they are afforded natural justice. As the Attorney said, it is important for them to be acquainted with the allegations and for them to have the opportunity to respond.

CHAIR: So why weren't they?

Mr Edgerton : At the point in time where Ms Prior first decided that she did want to proceed against the students—this was around about 23 or 24 June 2015—the commission said, 'If a conciliation conference is to be held, we require the students to be notified'. The commission set a conciliation conference for six weeks in the future, to give an opportunity for QUT, who had asked to take on responsibility for notifying the students, to be able to notify those students.

CHAIR: So the commission did not do that?

Mr Edgerton : No. QUT had asked to be responsible for doing that, and the commission agreed to that.

CHAIR: Were Slater and Gordon the solicitors for Ms Prior?

Mr Edgerton : They were initially, and then Ms Prior changed her solicitors part way through the complaint.

CHAIR: She obviously had some good advice there. This Facebook post took place in May 2013; is that correct?

Mr Edgerton : That is correct.

CHAIR: Ms Prior first made a complaint one year later. Is that correct?

Mr Edgerton : To the commission—that is right. She had previously made a complaint to the university.

CHAIR: Do you know when she made the complaint to the university?

Mr Edgerton : I think it was December 2013.

CHAIR: That is—what?—seven months after the incident. Did the commission consider whether—with that lapse of time—this was a serious complaint? Did that exercise the mind of the commission in pursuing the matter?

Mr Edgerton : I think I have indicated previously, the commission does have the power to terminate complaints if they are made to the commission more than 12 months after the incident occurred. This complaint was made one day shy of that 12-month time limit. In circumstances where it is 12 months or more, we would consider the application of that termination ground. Obviously the parties were alive to that. I do not think it was an accident that that was the timing.

CHAIR: So, even with all of that, the commission still thought this was a serious complaint about a racial discrimination, matter rather than something else?

Mr Edgerton : I think the president has answered that pretty fully to the Parliamentary Joint Committee on Human Rights.

CHAIR: Perhaps you could just briefly advise this committee, Ms Triggs. I mean, it is six months before the university is advised. It is one day shy of 12 months before the commission is advised. Wouldn't that have brought to the mind of the commission that perhaps this is not really a serious racial discrimination issue but something else?

Prof. Triggs : Matters can take a while for parties to decide that they want to bring a complaint. It was technically within the year. There were concerns that Ms Prior had not received the response from the university that she wanted. There were outcomes as far as she was concerned, and the comments made were at least above the threshold that we have under our statute. So we were really bound to consider this matter.

Senator Brandis: Senator Macdonald, can I add to Professor Triggs' remarks on this point because I think it is a very important point and a very important problem. Professor Triggs said before—and I do not dispute her good faith in saying so—that the commission arrived at the view that there was sufficient substance in the complaints for them to be investigated.

What has been almost completely missed about this case is that when Judge Jarrett in the Federal Circuit Court dismissed the case, it was not after a trial and it was not after a full hearing of the issues; he dismissed the cases summarily because in the two main cases he concluded on a summary application that there was no reasonable prospect of success.

Senator Macdonald, I know it is many years since you practised law, but nevertheless you will recall—because it is elementary—that a summary judgement application to dismiss a matter has a very high threshold. You do not get a case dismissed summarily without persuading a judge that there is no prospect, on any view of the evidence, that the case, were it allowed to go to trial, could possibly succeed. What we appear to have here is a judge deciding that there is no reasonable prospect of success so, according to the very strict tests for the summary dismissal of a proceeding, deciding to strike it out, while the commission previously had decided that there was sufficient substance to allow it to go forward. So the commission is either applying a different test to the court on the summary application or the commission and the court were applying effectively the same test and one of them was wrong.

Senator McKim: Or the law is different.

Senator BRANDIS: Quiet, Senator McKim! But it does strike me as more than absurd—which can be very unsettling of the lives of the people against whom it is made, as this plainly was—that the commission should have a lower threshold for proceeding with the matter than a court applies in deciding whether there is no reasonable prospect of success. I would have thought that the commission's threshold or test should be no lower than the court's in deciding whether there is no reasonable prospect of success. And that is an issue for reform of the act.

Senator McKIM: I should point out, if I may, that the commission itself has submitted to the 18C inquiry recommending changes to the Human Right Commission Act.

Senator Brandis: Really? That is good!

CHAIR: It is not your call. Order, Senator McKim! I just wanted to pursue that, Professor Triggs, because Ms Prior was apparently so offended by this post that it took her six months even to complain to the university. Didn't that ring a warning bell in the mind of the commission that this may not have been a serious complaint?

Prof. Triggs : I really cannot answer questions about what her motives were, but I understand—

CHAIR: No, I am asking what the commission's view was. Didn't it occur to the commission that she was so offended by this post that it took her six months even to let the university know, let alone the Human Rights Commission—taking one day shy of 12 months. Didn't that ring—

Prof. Triggs : I think the underlying premise of your question is not correct; that is that I think she approached the university relatively quickly at an informal level.

CHAIR: I thought Mr Edgerton said it was six months.

Mr Edgerton : I might have misled you. She approached the university—

CHAIR: You did say it was December.

Mr Edgerton : I said that in December, she invoked the university's formal grievance procedures. But she had approached the university within one or two days after the posts initially went up.

CHAIR: So you are saying it was within two days? You know that as a matter of fact?

Mr Edgerton : That is right. And then when she was complaining to the university using the grievance procedures, that was largely about her concerns about how the university had dealt with that initial complaint. She was not satisfied with how her complaint had been dealt with by the university—a complaint that she had made contemporaneously with the posts going up, and so she invoked the formal grievance procedures of the university in December 2013.

CHAIR: Is her complaint to the commission a public document? Can we get a copy of that?

Mr Edgerton : It is; it is also on the court file. We are happy to provide a copy to this committee.

CHAIR: The other committee doesn't have that?

Mr Edgerton : It is a publicly available document.

Senator Brandis: It will be in the judgement, I think.

Prof. Triggs : I wonder if I could add to what has been said?

CHAIR: Just before you do, could I take back my question on the basis that I understood Mr Edgerton to tell me that it was December when the first complaint was made to the university. He has now corrected that, so the question is not quite the same.

Prof. Triggs : The premise of your question to me had been founded on a misunderstanding of how that occurred; but, no, she had been pursuing this for some time. I think that is clear, and I think that answers your question. But I would like to come back to the points that the Attorney has made, and I do need to point out that the judge, in making this determination, took nine months to make that determination in a very considered judgement. When we receive a complaint to the commission, within days we have to decide whether it reaches the very low threshold we have.

The other point is that our threshold is different from that of the court. We have a different function. Our job is to bring the parties together to try to conciliate the matter, and that explains why the legislation has such a low threshold; in other words, any complaint alleging unlawful discrimination is a matter that, as president, I, through a delegate, must consider. Yes, they are very different in terms of what a judge was doing and in terms of what the commission is trying to do; to try to avoid matters having to go to a court.

Can I also point out that, subsequently, the Federal Circuit Court made a particular finding that the proceedings against the students were not hopeless or bound to fail, in refusing to order costs against Ms Prior's lawyer. So we have the view of the court in dismissing the matter, as we have heard on a summary attempt to strike the matter out, but we also have on a subsequent matter relating to costs a very clear statement that the matter was not hopeless and it was not bound to fail.

We come back to the key point that the processes of the commission are designed to provide access to justice through this process of complaint that the Attorney has raised, but the design, the purpose, of these processes is to avoid the parties having to go to court. If we did not exist and we were not doing this work, a very significant number of these matters would presumably go straight to the Federal Court. The purpose of our dealing with it is to deal with it at an earlier stage to achieve a conciliation, if possible, and we do in 76 per cent of cases. But the harsh reality is that our threshold for considering matters is a lot lower than it would be were a federal court to consider a question of summary dismissal, and that is what happened here. What the judge, in a fine judgement, determined—

CHAIR: Very fine.

Prof. Triggs : does not deal with the reality that under our statute we must consider every written complaint that alleges a discrimination. That is how our process works. If parliament, which created this process, chooses to amend the process and lift the threshold, or adopt some of the other suggestions that we made in our formal submission, we would be very pleased to see that. We have argued for many years, to at least two Attorneys, that we would like to see a change to our very low threshold. So it is important to have this discussion to explain how this has occurred—

CHAIR: What I am interested in as well are the human rights of these students; one of whom, I understand from media reports—because he was not aware of and could not gather evidence—paid out $5,000 on what is commonly called 'go away' money. What about his human rights? Had he been advised earlier—

Senator Brandis: That is another problem, of people gaming the system. Can I agree with—

CHAIR: Well, we are just about finished here.

Senator Brandis: Sure, but can I just agree strongly with what Professor Triggs has said, and it is, if I may say so, a good analysis. The problem here is the threshold is too low. The threshold is obviously too low. If the threshold is so low that the commission feels compelled to embark upon a process—as in this case, a very long and involved process—in a case where a court considers that there are no reasonable prospects of success, that is absurd. We will see what the human rights committee's report says when it is published later today—I have no idea whether they will address this issue—but it is obvious from what Professor Triggs has said, and it is obvious from the way in which the QUT students' case evolved, that the threshold of determination to embark upon conciliation of a complaint is too low. It is ridiculous that something that is below the level of something with no reasonable prospects of success should nevertheless compel the commission to embark upon it.

CHAIR: Thanks, Senator Brandis. I do not want to pursue this for too much longer, but I am concerned about the students who were denied basic human rights of natural justice. Professor Triggs, has any claim or suggestion of claim been made to the Human Rights Commission against the Human Rights Commission for the failure of the Human Rights Commission to consider the human rights of those five students?

Mr Edgerton : There is a current complaint that has been made by two of the students.

CHAIR: Against the Human Rights Commission?

Mr Edgerton : That is right.

CHAIR: To the Human Rights Commission—Caesar judging Caesar.

Mr Edgerton : It is not quite that simple. Obviously the commission, on receiving that complaint, given that it is a party, has delegated the handling of that complaint to a senior member of the bar.

CHAIR: Under the well-established rules of sub judice, I will not ask you more about that incident, but in the end result this whole unfortunate incident shows a basic lack of any consideration for the human rights of those students and is regrettable for all those reasons.

Prof. Triggs : Senator Macdonald, I really do need to say that throughout this sorry matter the intention in good faith by the parties was to protect the students, to protect their privacy and to resolve the matter with Ms Prior without involving them. Now, with the benefit of hindsight, one can say, 'Well, it would've been better if this or that had been done, if we'd not given the university as long with Ms Prior to resolve the matter.' There are many things one could do with the benefit of hindsight, but I can say with absolute certainty that the Human Rights Commission acted in order to protect the students, and my personal view is that the university attempted to do so as well.

Senator Brandis: And the commission is bound by its own act, Senator Macdonald, which is an argument for why it should be reformed.

CHAIR: I do not attribute bad faith to the commission, but I am concerned that, with all the best intentions, it has not turned out that way, and I would have thought that the basic principle of natural justice would afford the alleged perpetrators the most urgent advice that they were in the firing line, as it turned out they were. Anyhow, thanks for that. If nobody else has any other questions for the Human Rights Commission—

Senator PRATT: Chair, I have a question.

CHAIR: You do, Senator Pratt?

Senator PRATT: No, Chair, I have a question to put before the committee.

CHAIR: Let me just deal with this. Are there no other questions for the Human Rights Commission? Professor Triggs, thank you very much for your attendance with your team.

Senator PRATT: I would like the committee to invite Senator Brandis to table his statement on the Bell matter, given he has come prepared and the government has by majority decided it does not want to take this order of business.

CHAIR: Senator Pratt, please. I thought you had an important issue to raise. Again, thanks to the Human Rights Commission.

Senator PRATT: Yes, thank you.

CHAIR: We will break for 15 minutes.

Senator WONG: Senator Brandis wants to respond.

CHAIR: We are an hour over the afternoon tea break.

Senator WONG: Senator Brandis wants to respond, Chair.

CHAIR: The committee is adjourned for 15 minutes.

Proceedings suspended from 11:18 to 11 : 38