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Legal and Constitutional Affairs Legislation Committee
Australian Human Rights Commission

Australian Human Rights Commission


Senator FURNER: I have some general questions to begin with. Most of them are related to the annual report of the commission for 2012-13. Firstly, I understand there were 2,177 complaints lodged?

Prof. Triggs : That is correct.

CHAIR: May I just interrupt? Professor, did you want to make an opening statement?

Prof. Triggs : Normally we do not make an opening statement, but I did on this occasion want to speak just briefly. I firstly wanted to congratulate you, Senator, on your election as chair, and to say how pleased we are to see the reconstituted committee. We look forward to continuing and developing the productive relationship we have had in the past.

Because it is a reconstituted committee we thought we might prevail upon you for a couple of minutes to explain a little bit about our role and our strategic priorities over the coming year or so. As you will be aware, the committee's primary role is to monitor compliance with, and educate people about, human rights as defined by the many international treaties to which Australia is a party, including the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. We also have specific legislation on discrimination on the grounds of race, sex, disability and age.

A significant proportion of our work lies in responding to, and conciliating where possible, about 17,000 inquiries and complaints a year—a very significant contribution, I believe, to access to justice. This work is confidential and is thus not something on which I can make public comment, except in rare cases.

We also have a very significant international human rights program, particularly the bilateral programs with China and Vietnam.

Our work is guided by our strategic plan and agenda, which broadly aims to mainstream our human rights work so that the Australian community can see how human rights are respected and implemented. Our priorities are to tackle violence, harassment and bullying and to build respect for human rights in the community through education. In particular, our objective over the next year or two is to strengthen our engagement with the business community, especially small to medium business, to emphasise the global and national research that indicates where basic rights and freedoms are respected, and to unlock the significant economic potential and productivity by engaging in a more integrated society.

Our project work includes 'Racism. It Stops with Me', a national program; working with the Australian Defence Force on sexual abuse; building the Male Champions of Change program; positive ageing; Indigenous and social justice work, particularly collaboration with business and the mining extraction industries; and working with business to integrate those with disabilities into paid employment.

We hope to achieve a more integrated cross-commission approach to our work so that, whether we are dealing with the aged, children, women or the disabled, we can work with our legislation to build our functions in relation to fundamental freedoms and issues that are of great concern to the Australian public such as cyber-bullying, and the development of codes of practice for business to deal with education and training on the new laws of sexual orientation.

So, with those very brief words, I would like to express the views of the entire commission that we hope to work well with you in helping to serve the Australian community and to achieve compliance with human rights law. Thank you very much.

CHAIR: Thanks very much, Professor Triggs. Senator Furner, did you want to repeat your question very briefly?

Senator FURNER: Thank you, Chair. I was starting with some responses with regard to the commissioner's annual report 2012-13. As I understand it there were some 2,177 complaints lodged.

Prof. Triggs : That is correct.

Senator FURNER: Can I just have some feedback on the majority of those complaints, with respect to matters related to the RDA and the DDA.

Prof. Triggs : I can say that those are distilled complaints from about 17,000 inquiries. We deal with a lot of matters but some 'gel', if you like, into formal complaints of about that number—2,200 to 2,500 a year. Overwhelmingly, the complaints concern matters of employment—hence our emphasis on business. Also, significant numbers of those complaints arise across all four areas, but certainly in relation to race discrimination and disability.

Senator FURNER: I understand that the number of complaints in the annual report listed a 59 per cent increase over that year. How has the commission been dealing with the extra workload in handling those complaints?

Prof. Triggs : It is true that complaints in relation to racial vilification have gone up by 59 per cent. It is a spike, and we don't know quite whether that is going to be a sustained one. The numbers have declined in other areas, particularly core human rights complaints in relation to detention. So in terms of managing the workload: it goes up in some areas and down in others. We have in fact, over the last 18 months or so, managed to bring our backlog of complaints up to date and we do not have a backlog. So we are coping at the moment with the range of complaints that we are receiving.

Senator FURNER: In relation to the 41 per cent of racial hatred complaints, could you provide the committee with a breakdown on some examples, or whether the majority of complaints were in any particular area—was it over the internet, was it through other means?

Prof. Triggs : A significant percentage of them are through social media and the internet—and that is, again, a rising phenomenon. It links in, of course, to the community concern that we are hearing so much about, which is the rise in cyber-bullying generally. Not all bullying is related to race, of course, but a significant percentage of it is. So it is an area that we can see is an important one for the future.

The sorts of examples are the use of highly pejorative and seriously unacceptable terms used on public transport, in workplace canteens, in shops, in shopping malls—they occur in a number of contexts and they occur across many races. It might be Australia's Aboriginal and Torres Strait communities but it might equally be the Indian or Chinese communities; or the Muslim community, where you get something of a mixture of race and religion. So it is very varied. And they vary in their egregious nature. Some might be a throw-away line that is overheard in a canteen and is of concern or it might be something deeply egregious. Some of these examples we have seen, of course, when people have filmed them on their iPhones and sent them across the social media.

Senator FURNER: How does the commission deal with complaints that relate to the matters of the comments or use of blogs on the internet in terms of educating the public that they are inappropriate?

Prof. Triggs : That of course is the key strategy. In relation to individual matters, we attempt to reach a conciliation—and, on average, matters are resolved between about six to 12 weeks. But mostly, with conciliation, it is possible to reach an appropriate outcome. We conciliate successfully about 65 per cent of the matters that come to us. Where they are not conciliated it is an option for the party to go to the Federal Court, but rarely do they do so—it is very infrequent.

That brings us to the broader point that you are making: education. We see that as an absolutely fundamental part of what we do, and we are putting increased resources into developing modules for the Australian curriculum that will allow broad human rights questions to be considered. But, in particular, with this problem of cyber-bullying, people using blogs to bully and to racially vilify people—it is not only race; it is on a number of other grounds as well—there is no doubt that education is the key to creating a culture in which you cannot use these forms of social communication for purposes which are well accepted within the Australian public as unacceptable.

Senator FURNER: You are aware that the new government is proposing to amend the Racial Discrimination Act in terms of racial vilification. No doubt there will be the possibility of an increase in complaints to the commission as a result of that, by internet concerns with material that is put on the web.

Prof. Triggs : Because there has been significant public debate about this matter over the last year or so, that may account for something of the spike—in other words, the more people know that they have an option to come to the commission with a complaint, the more these figures tend to go up. At the moment, we understand that the Attorney will be embarking on consultations to consider exactly what sort of amendment might be viewed as appropriate to the existing legislation under the Racial Discrimination Act.

Senator FURNER: Chair, I might yield to Senator Singh on this particular area.

Senator SINGH: Professor, I wanted to ask specifically in relation to the government's flagging of changes to the Racial Discrimination Act, particularly section 18C. Firstly, do you consider section 18C of the Racial Discrimination Act of benefit to the Australian people?

Prof. Triggs : Our view from our observations at the commission over many years, since section 18 was introduced in 1995, is that it has been successful. It has been applied in a successful way by the courts, dealing with only the most egregious cases. Our view at the commission is that section 18C and the freedom of expression defences and exceptions under 18D serve the public well, but we accept that this is very much a matter of public debate in a way that it has not been for a long time. We welcome public discussion about this and we certainly hope to play a fruitful role in facilitating consultations as to whether or not it adequately meets the concerns of the Australian public. But I think there is no doubt at all, judging by the number of complaints we receive in the area, that the public sees the section as one which meets a community need.

Senator SINGH: Indeed. Do you think that section 18C restricts freedom of speech?

Prof. Triggs : Section 18C, in and of itself, clearly does restrict freedom of speech but, as you will all be aware, freedom of speech is not an absolute freedom.

Senator SINGH: No.

Prof. Triggs : It is subject to numerous forms of balancing with other community interests. In fact, interestingly, one of the few legislative provisions that we have explicitly stating the right to freedom of speech is really within 18D, so 18C and 18D are intertwined in that sense. There is, if you like—to put it in your language—a breach of the classical freedom of speech in 18C itself because it limits the way in which you can use language

Senator SINGH: That is right.

Prof. Triggs : But 18D is designed to provide a balance to that, which gives legislative form to the right to freedom of expression.

Senator SINGH: I was getting to 18D, and I wanted to ask you how the defences in section 18D operate. Specifically, I was going to ask you to provide an explanation as to the reasons why Andrew Bolt was unable to rely on the defences of 18D when he was charged with offences under the Racial Discrimination Act.

Senator Brandis: Mr Chairman, I just wonder whether it is appropriate for any witness to be asked to express their views about why the decision of a court was as it was, or why a particular proceeding before a court was conducted in a particular way. I do not for a moment want to divert Senator Singh from discussing section 18C—I very much welcome this discussion, having initiated it myself—but I would not have thought a question, either to a witness or to me as the minister at the table, about why a particular court case was conducted in a particular way was a proper question.

CHAIR: That is very valid and I am sure Professor Triggs would have given that answer as well, Senator Singh, so perhaps you could ask something that the witnesses can actually answer. Opinions on courts and why individual litigants won and lost and why a court has made a decision really are not a matter for the commissioner.

Senator SINGH: I put the question to the commissioner. It is up to her how she answers it.

Prof. Triggs : Can I answer it by saying that 18D sets out various grounds as exemptions to what would otherwise be a breach of 18C. Those grounds, broadly speaking, at least in relation to the matter you are concerned about, provide an exemption from the act being unlawful—in this case a report—where it is fair comment, where it is accurate and where it is made in good faith. I think it would be fair to say that the view of the Federal Court was that, based on the facts before the court, those exculpations or grounds for exemption were not made out on the facts, and that was the view of the Federal Court judge.

Senator SINGH: That was my understanding as well. I just have a question in relation to an editorial in TheAustralian newspaper on 9 November this year calling for repeal of parts of the Racial Discrimination Act, entitled 'Repeal of the "Bolt laws" will boost free speech'. It was stated:

Those who might be concerned about any looming gap in the law—

following repeal of section 18C—

should take comfort from the fact that the Commonwealth Criminal Code outlaws incitement to racial hatred and the government has no plans to remove those provisions.

Professor, are there any provisions in the Commonwealth Criminal Code that mirror the provisions of section 18C of the Racial Discrimination Act?

Prof. Triggs : My understanding is that there are not, although that there are provisions in state laws, most particularly in New South Wales. If I may, I would like to take that on notice, to give you as full a description of the laws as I can. Perhaps the point can be made fairly that these criminal laws have either never or rarely been employed, and that was one of the underlying reasons for the introduction of section 18C years ago.

Senator Brandis: Senator Singh, I think you have put the witness at a little bit of a disadvantage by using the expression 'mirror', which is a vague expression. Of course there is a fundamental difference, because section 18C gives rise to a ground of civil complaint. The sections of the Commonwealth Criminal Code—I think it is section 82A which is relevant, if my memory serves me correctly—are, of course, crimes. One would not expect the criminal law and what is a ground of civil complaint to be mirror images of each other, because different principles apply, as you would be aware, between criminal and civil liabilities.

Senator SINGH: Professor, are you aware of any legislation that is currently being drafted, or has already been drafted, to amend the Racial Discrimination Act?

Prof. Triggs : I am not aware of any terms of a bill that is available for discussion at the moment. My understanding is that this is subject to community consultations, and once those consultations have been conducted a bill will be drafted.

Senator Brandis: Senator Singh, if it helps, that is correct.

Senator SINGH: Do you know the nature of these community consultations?

Senator Brandis: Given that I am the person engaging in the community consultations, perhaps it might be more helpful to you if I were to respond, if that is all right with Professor Triggs. I have begun, and will continue, to have conversations with a number of community leaders with a particular interest in this matter. I am not going to go through them by name or even category, because these are private consultations.

Senator SINGH: They are private consultations. Is there not going to be community consultation?

Senator Brandis: There are going to be private conversations with community leaders who have a particular interest in this matter. I will take a submission to cabinet when those consultations have been completed and I have arrived at a concluded view as to the best way to deal with this. A bill will be introduced and it will be debated in parliament and, no doubt, dealt with in this committee in the usual course in which all bills are the subject of parliamentary discussion.

Senator SINGH: Are you saying there will be private community consultation?

Senator Brandis: There will be private conversations with community leaders, yes.

Senator SINGH: You are not going to call for submissions, you are not going to have any formal community consultation process. You are just going to have private conversations with people of your choosing that presumably provide you with the advice that fits with the direction that you are going with the amendments that you want to make to this legislation—yes-people, in other words.

Senator Brandis: I think that you are being very cynical, if I may say so, Senator Singh. I am acutely aware of the sensitivities of this issue, and I am aware, as I hope you are aware, that there is a variety of points of view, from those who would happily see the Human Rights Commission abolished to those who would not wish there to be any alteration to the existing law at all. There is a variety of points of view in the community, and the people who holds or subscribe to that variety of points of view feel very strongly about their point of view. I will be consulting for a variety of points of view within the community.

Senator SINGH: If you regard my comment as cynical, Attorney, I think it is because those people in the community who will become cynical when they are not given the opportunity to be a part of a process for the amendment of an incredibly important part of the Racial Discrimination Act, which deals very closely with the fact that that part of the act protects many Australians from racially motivated hate-speech. That is where the cynicism will end up. It will end up directed towards you by many members of the community. I will move on—

CHAIR: You are out of time, and we have a lot of people wanting to ask questions. I will move onto Senator Marshall and we will come back to you if we can.

Senator MARSHALL: I just have one question to Mr Innes. The Marrakesh Treaty to improve access to information for persons who are blind, visually impaired and otherwise print disabled was adopted, as I am sure you know, on 28 June 2013. I am sure you know, and I think to our international credit, Australia played a key role in achieving this treaty. Can you tell the committee what steps are or will be in place, including the timeline, for Australia to sign and then ratify the treaty?

Mr Innes : That is a matter which I would encourage the government to move on swiftly. I do so because the major benefit from the Marrakesh Treaty, from the perspective of Australia, will be what we can share with other countries, although there will be some benefits to people within Australia who are blind or have a print disability. The treaty, if I may, Senator, allows for the sharing of alternative format materials, that is, audio, braille and electronic files of books, to be shared across borders. It has been, prior to this treaty, a bar to people with a print disability. We have experienced what has been described as a 'book famine' because the organisations that produce these books in alternative formats do not have the capacity. Most of them are charitable organisations and they do not have the capacity to have access to these books. I, as a blind person, have access to about five per cent of the books that are available to people who read print. The Marrakesh Treaty will perform a very important role, and I have encouraged the former government and this government to move quickly for Australia to ratify that treaty. I have not yet had an opportunity to discuss this matter with the Attorney, but I look forward to doing so when I can, and I am hopeful that we will be able to work positively towards Australia's ratification.

Senator MARSHALL: I am just wondering if I could ask the minister whether you have given it any consideration at this point? It is something I have to follow at the next estimates, given what Mr Innes has said about it.

Senator Brandis: It is a matter before the government at the moment, Senator.

Senator MARSHALL: Sure, that is fine.

Senator EDWARDS: My questions this morning relate to the recent appointment of the Race Discrimination Commissioner, Dr Soutphommasane, who joins us here today. Secretary or president, in relation to that recent appointment, can you tell me how long that position was advertised for before you made the appointment?

Prof. Triggs : I do not think I can give you a very precise answer to that. I think it was something like six weeks. I would have to take that on notice to be precise.

Senator EDWARDS: What was the basic selection criteria?

Prof. Triggs : The criteria were that the person needed to have an understanding of the Race Discrimination Act, to have some scholarly understanding of the subject, to have a relationship and an understanding of the multicultural society in which Australia lives, and perhaps to be able to integrate, of course, concerns in relation to Aboriginal and Torres Strait Islanders with the wider Australian community. There were a number of specific requirements such as the ability to engage in administration and management the act.

Senator EDWARDS: How many candidates did you have apply?

Prof. Triggs : I was not really in charge of this process. But we had a very good range. There was somewhere around 40. Members of the advisory committee, of which I was one, reduced that to a shortlist of three or four.

Senator EDWARDS: The first round produced from the 40 three or four, which was—

Prof. Triggs : Sorry; I beg your pardon. The first round produced an interview shortlist of about 11 people. Then from the 11, after the interviews a short shortlist was produced for consideration by the Attorney-General.

Senator EDWARDS: Okay. As part of the criteria that you talked about, is the role a non-partisan and impartial role in terms of politics?

Prof. Triggs : Without question.

Senator EDWARDS: Without question. Before I move on, what is the salary of the Race Discrimination Commissioner?

Prof. Triggs : I do not recall precisely. It is set by the Remuneration Tribunal. It is in the region of about—

Senator EDWARDS: I am sure that the good doctor would know.

Dr Soutphommasane : If you refer to the Remuneration Tribunal setting of salaries—

Senator EDWARDS: I am referring to your remuneration package.

Dr Soutphommasane : Yes. The remuneration package, to the best of my knowledge, is $332,000 per annum.

Senator EDWARDS: That is $332,000 per annum plus superannuation plus—

Dr Soutphommasane : No, that includes superannuation.

Senator EDWARDS: Is there any vehicle?

Dr Soutphommasane : No. That is the package. That is the same for all commissioners.

Senator EDWARDS: So there is no difference between the package of previous commissioner and that of current appointment.

Prof. Triggs : No. When that amount goes up under the rulings of that tribunal, it goes up across the board at a particular point in time.

Senator EDWARDS: Who selected Dr Soutphommasane?

Prof. Triggs : The former Attorney-General.

Senator EDWARDS: There is no involvement of the president of the Australian Human Rights Commission?

Prof. Triggs : There is involvement in the sense that, with a representative of the Attorney-General's Department and one other member from the Australian Public Service—

Senator EDWARDS: Is that the Deputy Commissioner of the Australian Public Service?

Prof. Triggs : Correct.

Senator EDWARDS: Are any other senior officials from the Attorney-General's Department involved?

Prof. Triggs : That was the complement—the three. They created a shortlist, conducted the interviews and then made recommendations to the Attorney-General. All three were equal recommendations to the Attorney-General.

Senator EDWARDS: Given your comment about impartiality and non-partisanship, was the former commissioner—the one before our current commissioner—aligned with any political party?

Prof. Triggs : Not to my knowledge.

Senator EDWARDS: Was she a member of any political party?

Prof. Triggs : Not to my knowledge.

Senator EDWARDS: I want to talk about the Australian Human Rights Commission role in this. Did they have any input at all into the selection of the current commissioner?

Prof. Triggs : The selection was made by the Attorney-General. But I as president was a member of that advisory committee and we unanimously made a recommendation of three names to go to the Attorney-General. There is no doubt at all that I was consulted and was part of the decisions that created the shortlist.

Senator EDWARDS: There were three names provided to the Attorney-General. At the time, he made the decision on the appointment.

Prof. Triggs : That is correct.

Senator EDWARDS: And you had no input into the final decision.

Prof. Triggs : None at all. I was not spoken to at all about it. Once it had left our hands—the original advisory body—no further contact was made with me about that selection.

Senator EDWARDS: Did the government of the day or the cabinet or the minister provide any names to go into that selection process?

Prof. Triggs : No. Not to my knowledge. There was a proper process by which applications were made and it proceeded through that process normally.

Senator EDWARDS: How many of the 40 applicants were party aligned?

Prof. Triggs : I would have to take that on notice. I would imagine that there were very few but there may have been one or two.

Senator EDWARDS: Of the three that you then put to the Attorney-General, how many were party political aligned?

Prof. Triggs : Two were certainly not. But the successful applicant had been a member of a party but subsequently—

Senator EDWARDS: You say 'had been'.

Prof. Triggs : I understand that he resigned.

Senator EDWARDS: You are referring to Dr Soutphommasane, the current Race Discrimination Commissioner. Is he currently a member of a political party in this country?

Prof. Triggs : I understand that he is not.

Dr Soutphommasane : I am not a member of a political party.

Senator EDWARDS: You have been?

Dr Soutphommasane : I have been.

Senator EDWARDS: When did you resign your membership of that political party?

Dr Soutphommasane : I resigned my membership of that political party in July of this year after it became apparent that I would be appointed to this position.

Senator EDWARDS: What day were you appointed to this position?

Dr Soutphommasane : I believe that my appointment took effect on 20 August. But I was informed that I—

Senator EDWARDS: When did you sign your contract? What day?

Dr Soutphommasane : I began on 20 August.

Senator EDWARDS: But when were you appointed? When did you know that you had the job? When did you pop the cork from the champagne at home?

Dr Soutphommasane : In July 2013.

Senator EDWARDS: What date?

Dr Soutphommasane : I would have to take that on notice and get back to you.

Senator EDWARDS: Would it have been before 30 July?

Dr Soutphommasane : Yes.

Senator EDWARDS: I want to take you to comments that you made that were reported in the Age on Monday 30 July 2012. 'Any Abbott premiership will reflect the man: the muscular Christianity, Anglo-centralism, combative instincts, conservative ideology.' Is that quoting you directly?

Dr Soutphommasane : I believe it is from July 2012.

Senator EDWARDS: Isn't a comment such as that in this role, given the president's earlier comments about impartiality and non-partisan position, quite the opposite?

Dr Soutphommasane : Those comments would have been made by me in my capacity as a political philosopher employed by Monash University in 2012.

Senator EDWARDS: I see. I would seek the president's comment on that.

Prof. Triggs : My view is that the position is, as I said, undeniably one that is not partisan. I would think it reasonable and appropriate that, once the appointment was taken up or the contract signed—and presumably the contract came first—a person would resign from their party affiliation before taking up their position. And I believe that that is what happened here. It possibly would not be reasonable to expect that every applicant for a position would not have had at some stage been a member of a party before appointment.

Senator EDWARDS: But you do not know how many of the 40 applicants were members of political parties, except for one.

Prof. Triggs : No, I am afraid I cannot give you an answer to that. I can certainly find out as a matter of notice and I would be very happy to come back to you.

Senator EDWARDS: Was it a directive of yours or any of your officers that Dr Soutphommasane resign from the Labor Party?

Prof. Triggs : It was not a direction of mine, because it was unnecessary to make that direction. He had already told me, when I first spoke to him, that, knowing that he would accept the position, he would be resigning from the party. I did not need to make a direction.

Senator EDWARDS: Dr Soutphommasane, can you detail for this committee what your activities in the Labor Party were? If you could work backwards from the day that you were appointed to the role that you currently serve, that would be good.

Dr Soutphommasane : Do you mean my activities from the day that I was appointed to today and how they relate to membership of a political party? Have I understood your question correctly?

Senator EDWARDS: I am interested—and I think that the people of Australia would be interested—to know what party political activities you undertook with the Australian Labor Party before you came to this role. How long were you a member of the Labor Party?

Dr Soutphommasane : Thank you for that clarification, Senator. I was a member of the Australian Labor Party from 1997 until July 2013. I was a branch member in the New South Wales Labor Party. I was also employed in the office of the Hon. Bob Carr when he was Premier of New South Wales. I worked on the national election campaign of the Australian Labor Party in 2007.

Senator EDWARDS: In your role with former Senator Carr, did you produce material that he used to address people publically as his speech writer?

Dr Soutphommasane : I worked on his speechwriting and with his media staff.

Senator EDWARDS: President, why was this candidate chosen over all others—the 39 other applicants—who applied for this position?

Prof. Triggs : The answer to that question is one for the former Attorney-General, because he made that selection. The committee was really an advisory body. But I take the thrust of your question to be why he emerged as one of the top three candidates.

Senator EDWARDS: The 37 were excluded. Of the three, why was the good doctor seen to be the shining light for a position that you have stated should be non-partisan and indeed impartial, as you quite eloquently put it earlier? Somebody has now been appointed to the role who has said senior administrative positions within the ALP since he was 15 years of age.

Prof. Triggs : I cannot really go into the details of how each determination was made. All I can say is that it is assumed in making the recommendations that any candidate would resign any prior political positions that they might hold. The task of the advisory committee was to determine the three best candidates in light of the criteria. Dr Soutphommasane has outstanding criteria as a political philosopher.

Senator EDWARDS: How many previous commissioners have been party political aligned?

Prof. Triggs : I am afraid that I am unable to answer that. There have certainly been some. I am again very happy to give you those names and statistics on notice after I pull them together.

Senator EDWARDS: How long was the term of the previous commissioner?

Prof. Triggs : Dr Szoke was in her position for about a year.

Senator EDWARDS: Why not five years, which is what the current commissioner has been appointed for?

Prof. Triggs : She was appointed for five years, but for personal family reasons she was unable to continue past the first year, and I took over then as acting Race Discrimination Commissioner.

Senator EDWARDS: When did she resign?

Prof. Triggs : It was around Christmas 2012.

Senator EDWARDS: Why the lag time—seven months—to appoint a new commissioner?

Prof. Triggs : I believe that the selection process was timely until the final stages when the former Attorney-General was presumably making his own inquiries as to which of the three names that we had suggested would be the most appropriate appointment. But that is where the time lag took place.

Senator EDWARDS: Was it your advice to make that appointment, given that we were right on the cusp of a federal election and clearly the decision was to appoint somebody who was such an apparently politically aligned person to what you describe as an impartial non-partisan position? What was the motivation, given that everybody was pretty relaxed for seven months? Why did we rush in and make the appointment on the eve of the 2013 federal election?

Prof. Triggs : That is a question that only the former Attorney-General can answer, because the work of the committee was done sometime beforehand.

Senator EDWARDS: Was the shadow Attorney-General at the time consulted on the appointment of Dr Soutphommasane?

Prof. Triggs : I do not know the answer to that question.

Senator Brandis: I know the answer to that question. The answer is no. Mr Dreyfus did not consult me in relation to any appointments he made. I am not saying that he should have consulted me, but he did not. His predecessor, Ms Roxon, did extend me the courtesy of consulting me, as the shadow Attorney-General, in relation to a couple of very important appointments, specifically, the appointments of High Court judges, where the views of the opposition were elicited by her. In fact, the appointments to the High Court made under her attorney-generalship were in each case the names of persons who appeared on the list that I had given her confidentially as people the then opposition considered of sufficient eminence to be appointed to the High Court. The reason I make that point, Senator Edwards, is that there was on occasions, by the previous government, the practice of consulting me on very important appointments. But that practice was not observed at all by Mr Dreyfus and it certainly was not observed in relation to the appointment, on the eve of the 2013 election, of a longstanding senior member of the Australian Labor Party to what the President has told us must absolutely be a nonpartisan and impartial office.

Senator EDWARDS: Thank you, minister. My final question is probably to the secretary. Given that this appears to be a blatant political appointment—with no disrespect to the academic qualifications of Dr Soutphommasane—will you be revisiting the appointment of such a politically oriented person to a role which the President, in her own words, has said should be 'impartial and nonpartisan'? It looks to me and to the Australian public a $332,000 a year patronage appointment.

Mr Wilkins : It is not really my call. It is a bit like asking me whether I have stopped beating my wife. It is difficult—

Senator EDWARDS: Perception, in this business, often becomes reality, secretary.

Mr Wilkins : I think I will take that on notice because the question has certain presuppositions which, as a professional public servant, I do not think I need to actually accept. But it is something which I will of course discuss with the minister about future processes et cetera. But, under the circumstances, I do not think it is something which the secretary of a department is able to revisit. The appointment process is set out in the statute. The processes for reviewing that are set out in the statute. In futuro, we can look at processes, but there is no position, I think, for the secretary of the department to be revisiting that.

Senator EDWARDS: But, at the end of the day, the then Attorney-General sat down in the solitude of his office and took on the recommendations of the people providing him with the names and appointed a person who would have been well known to him and who has served the party in which he was a member very well for many, many, many years.

Mr Wilkins : That is a matter for ministers and governments. The Public Service cannot necessarily deal with those issues.

Senator EDWARDS: My very last question is to Dr Soutphommasane. Given the comments you made earlier about the Prime Minister—then Leader of the Opposition—would you expect that your comments about the way people conduct themselves in here will be somewhat more temperate from here on?

Dr Soutphommasane : I only ask that I be judged on how well I do my job. I look forward to working with all sides of politics in combating racism, which I believe is an issue that must transcend partisan lines.

Senator EDWARDS: Which is a new position for you.

Dr Soutphommasane : I have always been fiercely independent in my thinking.

Senator EDWARDS: I am not so sure.

CHAIR: Dr Soutphommasane, when you worked for Senator Carr was it when he was Premier of New South Wales or was it when he was foreign minister in the previous government?

Dr Soutphommasane : It was when he was Premier of New South Wales, in 2004.

Senator SIEWERT: Mr Innes, I have some questions on the NDIS. In terms of the planning process and the launch sites, have you received any complaints about the progress to date on the NDIS and how people are engaging with the process?

Mr Innes : I cannot comment with respect to any complaints which may have been lodged with the commission—in the formal sense of the term 'complaints'. If your question relates to whether I have had discussions with people in the disability sector with regard to progress on the NDIS, then absolutely I have and I continue to do so. I am always engaging with the disability sector and representatives of the disability sector on a range of issues. I think it is fair to say that the NDIS is some four to five months into process and it is very hard, at this point, to determine how effective it is being. There are a range of concerns in the disability sector about the NDIS, but I think that is not surprising given the significant changes the NDIS will bring to the sector. I have had ongoing discussions with representatives in the sector but I do not have concerns about the current progress of the NDIS. I think it is where it would have been expected to be at this point in its development.

Senator SIEWERT: I go back to the issue of the number of complaints. Are you saying you cannot tell me whether you have received any complaints.

Mr Innes : I cannot tell you whether the commission has received formal complaints of discrimination with respect to the national disability insurance scheme. That information is confidential, so I would breach my confidentiality commitment if I were to do that. What I was referring to were discussions I continue to have in the sector.

Senator BOYCE: Are you able to say if there have been complaints?

Mr Innes : No, I cannot nor can the president of the commission say whether there have been complaints against the NDIS—in the same way we cannot confirm or deny complaints against any organisation.

Senator SIEWERT: You did touch on your ongoing discussions about the process. I have certainly had feedback on initial engagement—people having some concerns about the nature of the engagement over the planning process and also about their ability to gain access to decisions being made about decision making and supported decision making. Have you had any discussions or feedback on those issues?

Mr Innes : Absolutely, particularly because decision making is part of the focus of the Australian Law Reform Commission inquiry, for which I am a part-time commissioner. That has been one of the issues with which I and the president of the Law Reform Commission, Professor Croucher, have been dealing over the last few months. So, yes, I have had conversations about that. I have had feedback, both positive and negative. At this point in the process, I do not have concerns about the rollout of the scheme. But that is not to say that people have not expressed concerns to me. What I have to do is weigh those concerns against the other views I have heard and the other information of which I am aware with regard to the rollout of the NDIS.

Senator SIEWERT: Thank you. Have you fed some of that feedback you have had back to the agency?

Mr Innes : Yes, I have. I am not involved in the rollout of the scheme now as I was with the campaign, but I still talk to colleagues in the agency, both at board and executive level. I have shared some of those concerns.

Senator SIEWERT: Thank you. Are you aware of whether they have taken those concerns into account, in any way adjusting their process?

Mr Innes : Only to the extent that I have a good working relationship with them and that I expect that, as I do, they listen to the concerns that I raise and weigh them with all of the mix of other information that they hear. But I do not always expect people to report back to me on how they have dealt with any concerns that I have raised with them.

Senator SIEWERT: No—

Mr Innes : I am sorry. I am not trying to be evasive. I am just—

Senator SIEWERT: I appreciate that. My concern is that this is the beginning of a process that there are great expectations about.

Mr Innes : That is absolutely true.

Senator SIEWERT: And already we are getting some signals. Given the expectations and the assurances we were given during the debate on this particular piece of legislation, certainly some of the concerns that I am hearing are cause for concern. So I am trying to find out whether the concerns that we are hearing are being taken on board and processes changed to reflect that.

Mr Innes : I guess I balance the expectations and some concerns about the meeting of those expectations against the nature of a change process. Uncertainty always causes a level of concern, and I have been involved during my working life in a number of change processes, and it is quite a usual consequence of those processes. So my sense, which is really all I can give you, is that at this point the Australian community and the Senate do not need to be concerned. But it is something which I will continue to monitor while I am in this role.

Senator SIEWERT: Thank you. In those discussions that you have been holding, have concerns been raised with you around decisions being made by other government agencies as a result of people being accepted into NDIS?

Mr Innes : This was always an issue of concern even before the NDIS began: that there would be a move by other organisations, government and non-government, to, if you like, step back from their responsibilities and assume that the NDIS would pick up those responsibilities. It has always been expected that it would be an area of tension, and I think those expectations are being realised. It will be part of the sorting-out process, and that is something that I am monitoring, because the commencement of the NDIS does not mean that organisations in a range of areas—transport, education, prisons and other service areas—can step back from the obligation that they have to people with a disability as members of the general population. So, yes, that is certainly something that I am watching.

Senator SIEWERT: Thank you. Can I just move quickly on, because I still want to get to—

Senator BOYCE: Could I just ask one more question in this area, about concerns about the NDIS and its rollout.

Senator SIEWERT: Yes.

Senator BOYCE: Has it been brought to your attention that there is concern within the intellectual disability community or sector that there are far greater problems in planning in that area than perhaps with people with physical disability?

Mr Innes : Yes, it has. There were concerns in the intellectual disability sector prior to the commencement of the scheme.

Senator BOYCE: Yes.

Mr Innes : Those concerns continue. I think the particular concerns were also related to the fact that people with an intellectual disability, if I can make these generalised comments, would be less likely to engage with the NDIS than, perhaps, people with other disability. My understanding is that the NDIS is working to address those concerns, but I still think it is a bit early to judge how effective that recognition is. But the NDIS is certainly aware of that as an issue, because many other people, probably including you as well as me, have raised that with it.

Senator BOYCE: Thank you.

Senator SIEWERT: Thank you. I go on to the issue around the agency, the issue of systemic advocacy and the amendments that were made to the bills during the debate. Have you had any contact with the agency about that particular process yet?

Mr Innes : Do you mean the funding of systemic advocacy not being within the NDIS?

Senator SIEWERT: No, not that—their ability to be able to advocate on behalf of people who are part of the NDIS.

Mr Innes : I, and representatives of the complaint-handling section of the commission, spent some time with the NDIS before commencement, developing their complaint system. This was one of the issues we discussed with them, and we discussed the particular importance for many people with a disability of being able to have the support of an advocate. I have had this issue raised with me since the commencement and have again raised it with a senior executive in the agency. I have not had a response to my concern, but it is something that I am following up because I want to ensure there is not any bar or restriction to advocates being involved in the planning process if that is the wish of a person with a disability or of their family.

Senator SIEWERT: Have you been consulted or has your advice been sought on any possible movement of contracting NDIS services to Medibank?

Mr Innes : No.

Senator SIEWERT: Ms Ryan, I want to follow up on the report that you have been working on for some time and released not long ago, Fact or fiction?Stereotypes of older Australians.Particularly given the finding that employers are reluctant to take on people aged over 50 and the new statistics showing that even more people over 50 or 55 are staying on Newstart for longer, where do you go to from now with that report? Do you think there needs to be stronger action, stronger legislation? Or how do you better enforce the legislation around discrimination of those over 50 in the workplace?

Ms Ryan : The actions that have come out of that report, which was pioneering research into the extent of negative stereotypes of older people, are several. I have a series of meetings with employer bodies, with recruitment agencies and their national organisations, and with national human resource bodies in order to take up with them the significance of the findings and to persuade them that a change of approach towards employing older Australians is in everyone's interests, most particularly those older Australians who are seeking employment and are unable to find it, and in the interests of the economy.

I have done some other work on the massive positive impact on the national economy which would come from increasing the participation in the paid workforce of over 55s. I also have a series of meetings with advertisers scheduled and some have started. One of the interesting and, I think, important findings of the Fact or fiction?research was that even though people over 65, for example, are over 14 per cent of the population, advertising targets about four per cent of older people, and that is for a very narrow range of products, such as funeral insurance, whereas of course people in that age group present a huge market, wish to purchase goods and services and to have advertising reflect what they are interested in. Indeed they are very keen to be consumers, if only things were targeted to them. So there is a series of discussions there.

In relation to whether we should be looking at stronger legislation, I think at this stage the business case for opening up employment to older Australians is so strong that I am hoping it will bring about the changed attitudes. As a result of the Law Reform Commission's report on Commonwealth laws and policies in relation to older people, we do have an issue with insurance where quite a number of age barriers are in place. These are not unlawful as such under the Age Discrimination Act at this stage, and I do have a number of discussions with insurers and representatives of the insurance industry, again to see whether presenting them with the facts about the potential business opportunities of removing some of their age discriminatory policies will be enough to change and open up better opportunities for older Australians.

Senator SIEWERT: In terms of the organisations and employers you are meeting with, are you working or meeting with Job Services Australia employment services?

Ms Ryan : I have had meetings with them in the past, but not since the report has come out. One of the changes that I will be very interested to see as a result of the new government is that the new government announced, as a part of its election commitments, an increased incentive to employers to take on people over 50 who have been unemployed—an incentive of $3,000 per employer, which is three times the amount that was available previously. I am very interested to see, once that is implemented, whether that in fact does encourage particularly small and medium sized employers to have a more open mind about the employment of older Australians. Again, with Jobs Services Australia the issue is, as I have stated in many submissions, that people in their 50s who lose their jobs need assistance in preparing themselves for job search straightaway. They do not need to wait until they have used up all their savings, maybe six months or 12 months, and then get assistance in terms of how to present a CV, what part of the market to target and so forth. So I think my message to Job Services Australia would be: assist people to look for employment straightaway; do not let them run down their motivation and their resources before offering them training and other forms of assistance.

Senator SIEWERT: Perhaps I could go back to the insurance issue and the issues we have with age barriers there. You say it is not unlawful—

Ms Ryan : You will be aware that there are exemptions to the Age Discrimination Act, and insurance is an exemption. A person can still bring an age discrimination complaint against an insurer to the commission. What then happens is that the insurer must produce actuarial data that justifies their discrimination on the basis of age. Now, that rarely happens, but when it does that data is made available in the private conciliation process. I do not have access to it. So, I am now discussing with a representative group from the insurance industry ways in which data can be more publicly available. Obviously each insurer has its commercial-in-confidence issues, but I believe it would be in the interests of our better understanding how insurance affects older people to have the data more publicly available. I have a group now that is going to meet regularly to see if we can come to some better agreement so that we do understand why, for example, a person getting travel insurance over 75 has to pay vastly more than a person under 75. These are things that are quite important but at this stage I believe the best way forward is cooperation with the industry. And, again, I strongly believe that the market—the business opportunities—are there for insurers if they look again and remove some of the age barriers that they have in place in relation to their products.

Senator SESELJA: Professor Triggs, this is a new area, but maybe just briefly going back to one of your earlier answers in relation to 18C of the Racial Discrimination Act. In listening, it appeared that you were suggesting that 18C is actually reasonable as drafted, but I note that in the past you have suggested that some aspects of 18C are probably ripe for reform, such as the references to 'insulting' or 'offending'. Are you able to clarify that for me, given that I am new to this space? Does it remain your view that 18C does need some amendment?

Prof. Triggs : I and my predecessor are on record as saying that there is at least an arguable case for thinking of amendment—but amendment to strengthen the provision. As you will know, the words are 'insulting', 'offending', 'humiliating' and 'intimidating'. And those matters that have gone to the Federal Court on this question—ultimately to the High Court—have always applied the law at this egregious end of the scale, and they have typically not gone through an interpretive process of saying 'insulting' means this and 'offending' means that and 'humiliating' means this et cetera. They have always asked for much more than merely 'offending' and 'insulting' and for something at the egregious end, and indeed the cases that have been determined have all been extremely serious cases. I have had to look at some of them, and I think no reasonable Australian would come to any other view.

But I am aware that there has clearly been a public debate over the last year or so and it has questioned the validity or usefulness of these words, the argument being that it is at too low a threshold. Now, we accept that the public debate is concerned about this, and it might be that after proper consultation those words could be taken away and replaced with tougher words, like 'vilification' or 'hatred' or 'incitement to racial violence'. You could toughen the phrase. Another is to toughen it by talking about meeting acceptable community standards or possibly inserting the word 'serious', which in fact adopts the jurisprudence of our courts. So I think my position, to answer your question—and the position of the commissioners and the commission as a whole—is that we accept that there has been and should be a public debate about this, and we hope to be a part of that debate. We certainly think that there might be a case for amendment, but most particularly to strengthen its service to the Australian public.

Senator SESELJA: You say there is an arguable case, but do you believe that the bar is too low with those words, 'insulting' or 'offending'?

Prof. Triggs : It is not really for me to put my personal views about that language. What I can say is that the courts have always asked for the standard to be at the highest level. If it is a political judgement through the Attorney and public discussion that those words do not quite meet the seriousness of racial vilification, then we will obviously administer that accordingly, but that will be pretty much exactly as the courts are doing it already. So, our position is that we are not promoting any particular form of amendment. We are interested to hear what the public and ultimately the Attorney believes is appropriate, and we hope that that will be a suitable strengthening to protect various groups within the community. And we have seen in the media in the last few weeks and months, and most recently just a couple of weekends ago, that there are serious instances of abuse which can lead to physical violence. It does not happen very often but it does happen, and the need for a strong, symbolic message to the Australian community where it is needed that the language of this racially vilifying kind is not acceptable is a message we support.

Senator SESELJA: A related question, though a different one, relates to the issues around promoting certain freedoms, as Senator Brandis has raised a number of times with you, particularly from opposition—and I note that you have made some comments to the committee before about work that the commission was doing to try to promote some of those freedoms. Are you able to bring me and the committee up to date as to what recent progress you have made in that space?

Prof. Triggs : We are certainly wanting to use the language of freedom, perhaps more than we have in the past, and one of the key ways in which we have been doing that is to link our work to the precise articles of the International Covenant on Civil and Political Rights, which is part of our mandate in terms of determining human rights. Those provisions are, of course, freedom of assembly, freedom of speech, freedom not to be arbitrarily detained without trial and charge et cetera. And we are linking our work to that on the website, so that somebody who wants to know a little bit more about what freedom of speech means can go directly to that provision on the website. Similarly we are about to—I think in the next week or so—issue a discussion paper on freedom of religion, a debate that was again prompted over the last year or so, partly in the context of aged care facilities, and Commissioner Ryan played a significant role in that matter. But it has been an issue that we have taken up. So, in those ways we are trying to ensure that we are engaging in the language of freedom. We are also developing teaching modules for the Australian curriculum to ensure that that language and understanding of core human rights are understood by school children.

Senator SESELJA: You talk about engaging in the language of freedom, but do you see it still as your role to be a genuine advocate for those freedoms that you talk about? Or do you see that because of the legislative framework that is actually not your role?

Prof. Triggs : According to our statute it is my role and the role of other commissioners within their particular portfolios and legislation to advocate and to monitor and to educate. So, all of those things apply. But, as you suggest, we do have an impediment to being as effective as we might like to be because we do not have legislation on which to hang our concerns about some of these core fundamental freedoms.

Senator SESELJA: But in terms of that advocacy for freedom, this discussion paper you talk about in relation to freedom of religion, is it coming from the perspective of how freedom of religion may not be respected in this country? Or is it coming from the perspective of what should be the limits on freedom of religion in this country? What is the driver for that discussion?

Prof. Triggs : I would say that the purpose of this paper is to provide as objective a statement as possible as to what freedom of religion is at international law, and in Australian law of course it is the one freedom protected by the Australian Constitution and the jurisprudence by the Australian courts that have given effect to it. Historically, you will know, freedom of religion is protected in Australia, curiously, by virtue of exemptions, and there are many in the community who see that as inappropriate. So we have taken that argument on and looked at whether we should be on the front foot with protecting the freedom as distinct from viewing it constantly from the point of view of exemptions. And that really arose out of an earlier debate this year, and we hope that the Australian public will see it as a useful contribution, hopefully at an objective level, so that we can discuss it outside an election context in a way that should be balanced.

Senator SINGH: I did have questions in relation to the freedom commissioner proposal by government, but I may have to put those on notice due to time, because I did want to go back to the Attorney in the astonishing admission he made earlier in relation to the fact that there will be no open process of consultation for the amendment of the Racial Discrimination Act, which he is proposing, but instead private conversations. Attorney, you are planning to scrap laws that protect Australian people from racially motivated hate speech, but you will not give the Australian people any opportunity to be part of a public consultation process in doing that?

Senator Brandis: I think, if I may say so, your rhetoric is very, very misleading. What the government intends to do is to reform the legislation so that it is more respectful of freedom of speech.

Senator SINGH: But are you going to have an open process for consultation—yes or no?

Senator Brandis: If I may finish my answer, please: it is not ordinarily the case that governments engage in widespread public forums before bringing legislation to the parliament. Now, you know that, Senator.

Senator SINGH: This is a pretty fundamental change—

Senator Brandis: Because of the sensitivities involved here, what I am in the process of doing is speaking to a number of community leaders, and I have been doing that for quite a long time now, since my party was in opposition. And we will bring legislation to the parliament, which, under our system—as you know, Senator—is the place where that legislation is debated. And I have no doubt at all that it will be referred to this very committee and debated in this very committee when the legislation comes forward. But rather than merely write legislation without any process of advance consultation, I am going to a great deal of trouble to ensure that I do engage significant community leaders in discussing the best way of achieving the balances between the protection of racial minorities from unacceptable forms of conduct on the one hand and protecting the freedom of Australians to express opinions, including unpopular opinions or divisive opinions, which is part of the lifeblood of a healthy democracy.

Senator SINGH: How can you conduct community consultation in private?

Senator Brandis: The term 'community consultations' is yours, Senator Singh, not mine. I said I would be consulting a variety of community leaders.

Senator SINGH: Professor Triggs used that term as well. It is quite a common term used in government to consult on legislative change.

Senator Brandis: Well that is not my term. What I said is that I would be having conversations with a number of community leaders, as I am.

Senator SINGH: Have you met with any Indigenous leaders?

Senator Brandis: I am not going to talk about individual conversations. The government informs itself in various ways about the best shape of legislation, as you know.

CHAIR: That is what you are elected for.

Senator Brandis: When the legislation is produced to the parliament, no doubt there will be a parliamentary debate, and I would hope that if the party that you represent, Senator Singh, is serious about what at least some of its members claim is a belief in intellectual freedom it will support the legislation.

CHAIR: We might have to leave that there. Just before we conclude, can anyone indicate if they, again, want the Australian Law Reform Commission? In which case I can say to the Australian Law Reform Commission, apologies for getting you here, but we will excuse you.

Proceedings suspended from 12:47 to 13:45