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Parliamentary Joint Committee on Human Rights
Freedom of speech in Australia

CODY, Professor Anna, Director, Kingsford Legal Centre; and Member, National Association of Community Legal Centres

LEVIN, Mr Anthony, Senior Solicitor, Human Rights Group, Legal Aid NSW

NAWAZ, Ms Maria, Law Reform Solicitor, Kingsford Legal Centre

TUCKER, Dr Linda, Solicitor, Redfern Legal Centre; and Chairperson, Community Legal Centres NSW

CHAIR: Welcome. Before we go any further, would any of you like to make any comments about the capacity in which you appear here today?

Dr Tucker : I am the employment and discrimination solicitor at Redfern Legal Centre.

CHAIR: I invite you to make a brief opening statement, and then members of the committee may ask some questions. In the interests of time could you please limit the length of the statement.

Prof. Cody : Kingsford Legal Centre is a community legal centre with a specialist discrimination law service, with coverage New South Wales wide, and also a specialist employment law service and an Aboriginal access program. We are also representing the National Association of Community Legal Centres, which is the peak body of community legal centres in Australia. In 2016 Kingsford Legal Centre gave 214 advices on discrimination and ran 33 cases in that area of law. Nineteen per cent of those advices were on race discrimination.

Our first point is around the issue of how rarely section 18C is actually used. In our experience, section 18C is rarely used by people who have experienced racial vilification because section 18C already sets a high threshold and places significant limits on the type of speech that is actually actionable. We submit that section 18C should be expanded to include vilification on the basis of presumed race, which currently is not covered, and also religious vilification.

We believe that the racial vilification provisions strike the right balance between freedom of speech and freedom from racial vilification. It has not been heavily litigated, with fewer than 100 cases going to court, and the courts have consistently interpreted the protections in section 18C from a public interest perspective, in line with the objects of the Racial Discrimination Act. The courts have held that, to amount to racial vilification, the conduct complained of must have profound and serious effects and not to be likened to mere slights.

Amending or repealing the racial vilification provisions will not guarantee the right to freedom of speech in Australia, and, if the government wants to better protect freedom of speech, we would recommend enshrining the right to freedom of speech in the Australian Constitution or in a national human rights act.

Ms Nawaz : I will just cover the issue of the impact of racial vilification on our client group. Our clients come from disadvantaged backgrounds, often experiencing significant harm from racist speech, and to weaken the provisions would disadvantage our clients further. Arguments that section 18C needs to be amended or repealed fails to recognise the prevalence of racial vilification and racism in Australia and the impact of this abuse on minority groups. We note that the Challenging Racism Project found that over one in five Australian surveyed had experienced race hate speech and one in 20 had been attacked because of their race.

The other issue I want to cover is the commission's role in the complaints process. Kingsford Legal Centre has significant experience dealing with the commission in representing applicants in discrimination matters. In our experience, the commission does an excellent job of dealing with complaints in an open and transparent manner and affords parties natural justice.

Last year, we understand, the average length of time between a complaint being lodged and the complaint being finalised was 3.7 months, which is a relatively quick resolution in several jurisdictions. We recommend the commission retain the power to educate the public about human rights and the commission's complaint processes.

Mr PERRETT: Could you give some concrete examples of the harm people you have represented have suffered as a result of racial abuse?

Dr Tucker : At Redfern Legal Centre, I acted for a client who had been racially vilified with someone yelling abuse. She is Aboriginal and was called a black 'insert various epithets', and made a complaint. We acted for the human rights commission in relation to that.

Mr PERRETT: Was it in public or in a workplace?

Dr Tucker : It was public abuse, as she was outside her house. However, she was so traumatised by the whole process that every time we would be speaking to her it would actually entrench the abuse, in a way. So it is so incredibly difficult and brave for an individual such as this. She was from a stolen generation background; she had been homeless; she had finally got into public housing in Redfern; and she had an incredibly difficult life. So to turn around and take on institutions and to be in that complaints process is not done lightly. It is not like this free for all that is out there trying to prevent freedom of speech; it was horrendous abuse suffered by an incredibly vulnerable person. And that process itself is extremely difficult. The conciliation itself is undertaken well and thoughtfully and in a neutral manner, but the whole process can be difficult. In fact, she ended up withdrawing the complaint because it was too difficult to go on. So it is very unusual, as has already been noted, for people to make the complaints. I think it should be seen as it is an educative process—when does robust debate trip over into what is unacceptable? Of course, we all know about the likely consequences of what speech can lead to. Just in one case we could see many of the issues that are being undertaken by this inquiry.

Ms Nawaz : As my colleague, Anna, earlier mentioned, we do see a lot of clients subject to racial vilification or religious vilification. I would like to give you an example of a client who came to Kingsford Legal Centre for advice. The case study is in our submission on page 7. Zeinab is a muslim and wears the hijab. One day, while waiting in line at a cafe, a fellow customer started yelling at her. The customer said, 'Go back to your country, Terrorist.' When Zeinab went back to the cafe the following week, the same customer was there and yelled at her again saying, 'If you love Islam, I'll show you.' He used a number of swear words, called her a murderer and said, 'Maybe you'll kill me, because Muslims kill people.' Zeinab was very intimidated and shaken by this incident and reported it to the police. We advised Zeinab that she was unable to take action under section 18C, as it does not protect Muslims against religious vilification. I will just add that this client did tell us she was very afraid after this incident. She had worked up the courage to go to the cafe the second time but did not feel comfortable. I note that racial vilification often has the effect, we see, of silencing victims and causing them to withdraw from the community.

Mr PERRETT: Those two examples that have just been given are probably not great ones for my next question but could you tell me what level of understanding complainants that you have dealt with have had about the RDA when they first come to see you more generally—it does not have to be those two.

Prof. Cody : Generally, I think the level of understanding is quite low in the community. People will have a sense of outrage at having being treated unfairly but are not aware what specific rights they have to bring any sort of complaint or action that in any way. So it really is a sense of grievance and of having being treated unfairly and wanting to do something about it, which, at community legal centres, we would see a lot of clients in that situation. But the level of knowledge and certainly the detail of what is possible, most clients do not have that.

Mr PERRETT: But they have a gut feeling that that is wrong?

Prof. Cody : Yes, that that is wrong and that they should be able to do something about it.

Mr Levin : As you might be aware, we have not made a specific submission about the first part of the inquiry in relation to 18C so we are not into position to make extensive comment on questions directed at that part of the inquiry. We are really just disposed to assist the inquiry in the second part, in the complaints handling process of the commission.

Dr Tucker : I simply confirm what Anna is saying there, that generally there is a sense of grievance. We are always excited that people realise that they can come and see someone for legal advice. We think that is a win that people know they can come in and get advice. The Human Rights Commission often does refer people to our organisations as well when they need a bit extra bit of help, so we do get a lot of referrals that way, where clearly there does need to be a bit of extra understanding and assistance through the process. But, unfortunately, that can be sometimes to say that yes this is wrong but it is not something that the law actually deals with. That can be unfortunate but at least they can be heard. We would say that there are clearly limits in the law that do not go to a lot of the issues that are being faced by our clients.

Mr PERRETT: With that referral from the HRC, are they being triaged through that and someone has said—

Dr Tucker : Someone would have made a complaint and they will have identified that there is a need for further assistance there. It happens quite regularly. They would then call us and ask is if we can advise the client of the appropriate legal centre for where they may be living.

Mr PERRETT: Are you geographically confined?

Dr Tucker : Kingsford is state wide and for Redfern we have a specific catchment.

Mr PERRETT: You are not a million miles from each other, are you?

Prof. Cody : No, we relatively close but Kingsford Legal Centre is state wide and would cover anyone. A lot of our clients are actually from rural and regional areas where there is less coverage—particularly in this area of law, which is a specialist area. A lot of community legal centres would not feel comfortable advising on this area so in fact a lot of clients would get referred by the Human Rights Commission and by Law Access, for example, to Redfern Legal Centre, to Kingsford Legal Centre and to legal aid.

Mr BROADBENT: On the same subject, did the police take any action on that? Linda, is there any law where the police could take action with regards to the incident we heard?

Ms Nawaz : Sorry, I am not aware if the police took any further action. It was just one-off advice.

Dr Tucker : Depending on the situation—

Mr BROADBENT: Is there any law of public disturbance that the police could act on?

Dr Tucker : There could be. It is a question for legal aid here.

Mr Levin : I am not a criminal lawyer, I should probably disclaim from the beginning. There may well be laws of public disturbance or public disorder. The one that comes to mind is more about an imminent breach of the peace but the key word there is 'imminent'. If a matter is not imminently about to happen to cause harm either to a person or to property, for example, then it is unlikely that the police are going to rely on that common law power to take action—if that answers your question.

Prof. Cody : In our experience, it would be very unlikely that there would be a criminal offence involved. It would also be unlikely that the police would action that as well because they have got a huge workload in other areas. Assault would be the only other offence but mostly assault involves physical violence rather than threats or words.

Dr Tucker : Clearly there are threats and statements such that there could be apprehension of violence, and that may be the case. But I think we are talking here about how we have provisions. We have a regime that has been set up to have conciliation, to try to have education, to try to involve both parties. And it would be unfortunate if there was a new reference to criminal law and the relatively blunt instrument of criminal law and overworked police when instead we should be looking at—

Mr PERRETT: And the legal system.

Dr Tucker : Yes. And instead of shoring up a valuable, conciliatory educative system that we have via the Human Rights Commission and the provisions we are looking at today, we are really trying to take a systemic and broader view to say, 'We know there is this problem in Australia, in our society, in many societies, and we have this system in place, so why don't we just make sure it works as effectively as possible to try to nip in the bud these issues of violent statements'—which may in fact be criminal in some cases, but massively offensive statements that are not made in good faith that would clearly breach our understood norms of how a society should operate. It is out there for us. That is what we should be working on to make sure that this is strong and robust and that the Human Rights Commission is allowed to do its job and is funded well to do that job and that we do not then rely on these individuals to bring these complaints.

Going back to that individual I was talking about and that we all see: could you imagine, if you are already vulnerable, you have that slur on you and you are frightened to go out the door and you are now going to go and make a complaint? So, we are relying on the most vulnerable individuals to prosecute really on behalf of society to deal with societal issues. And we think that they should receive as much support as possible and the commission should receive as much support as possible so that we do not get to that point in the first place. And I think we should be appealing to the better angels of our nature in dealing with these issues throughout our society, rather than always depending on the individual. I will just get off my soapbox!

Mr BROADBENT: I know how unsettling it is when I am verbally attacked in public, and I pretend that I am unaffected by it.

Dr Tucker : Good point.

Mr BROADBENT: And for a 26-year-old—look at me!

Mr LEESER: I wanted to take you to one of the suggestions that I had made in my submission, and I hope you have been presented with a copy of the submission. I think some of this is covered in each of your submissions, in a slightly different way, and I might put to you the parts of your submission where it is covered, but it all covers the similar question, and that is the question of 'no reasonable prospects of success' test. In the Kingsford Legal Centre's submission, on page 17, you commented that the 'no reasonable prospects of success' test is a determination for the courts to make. Isn't the commission already terminating complaints on similar grounds, such as trivial, vexatious, lacking in substance, not unlawful? Does the view change at all if a part-time judicial member is exercising that function rather than the president, as it currently is constituted?

To the Legal Aid Commission, you note that there is a difference between unmeritorious complaints and those ultimately unlikely to succeed. I wondered whether you would expand on that particular point. And to the Redfern Legal Centre, at page 7 you state that the commission providing a report with determination of a complaint is a sufficient safeguard against previous respondents in matters which may be misconceived, trivial, vexatious or lacking in substance. And you then go on to recommend that there might be grounds to consider the introduction of a requirement to seek the leave of the court when the complaint is being terminated on the ground that it was trivial, vexatious et cetera. Doesn't this suggest that the commission processes are in fact not currently sufficient to prevent such cases from proceeding to litigation? And would a 'reasonable prospects of success' assessment early on in the complaints process be useful in deterring applicants to the court?

Prof. Cody : We would submit that having that test is too onerous and it is too heavy a burden that a complainant would have to meet and that the current test of frivolous, vexatious or lacking in substance is the appropriate test. And it would also require the commission to exercise judicial power, as you are recognising, in that, which would really take us back to years ago, before the—

Mr LEESER: Why does it require the commission to exercise judicial power? Could they not just offer it as an opinion? That is effectively—

Prof. Cody : Because I think 'reasonable prospects of success' is much more a legal test that is properly addressed by a court when it is weighing up the merits of the case when it is actually looking at some of the evidence in front of it. And I think that with the sorts of clients we see, who are quite disadvantaged and, as Linda has talked about, find it hard enough to actually make a complaint, to present it in a way that is going to ensure that it meets that sort of test would be very onerous on a complainant and would then disadvantage them, whereas the legislation is supposed to be beneficial and to try to reduce racial discrimination.

Mr LEESER: There are surely legal tests that examine what in effect is vexatious, what is trivial, what is lacking in substance. So, why is it substantially different?

Prof. Cody : I think the practice of the commission has been to exercise that carefully when they are dismissing complaints as frivolous, vexatious or lacking in substance, because of the aims of the legislation. And I think having that test of reasonable prospects of success would change it. The way in which they have approached the interpretation of it, it is true that there are legal understandings and reasonings around each of those three areas, definitions of each of those. But the 'reasonable prospects of success' I think is much more a legal test.

Mr Levin : In relation to your question, if I understood it correctly, you were wondering whether we could elaborate on the tension, if you will, between unmeritorious claims and those which are perhaps unlikely to succeed but still arguable. The view of Legal Aid New South Wales is that the best approach is early advice—quality legal advice at the earliest possible stage. And we say that that approach is borne out by the findings of the Productivity Commission report into access to justice arrangements in that there were positive findings about the way in which early intervention can benefit disadvantaged people who are the people we work for across the state in remote and regional areas and in metropolitan centres. And they are the people who need the most help, because they are vulnerable, they often lack the skills required to run a case on their own, they lack the psychological readiness to be able to run cases.

The most effective check on a system is when unmeritorious cases can be properly diverted away from the court or tribunal system. We do this in practice in New South Wales, because we run two let's call them duty roster services, one at the Anti-Discrimination Board, which is in a pilot phase, and one at the New South Wales Civil and Administrative Tribunal. We see each year hundreds—thousands—of clients who require advice about discrimination matters or make inquiries about them. And in the course of that, some of that volume comes from these duty services. What those duty services enable us to do is to give frank, confidential advice about the merits of a claim and to divert them, if appropriate, from the proceedings, depending on where they come. If they have come at the ADB stage it is much easier to prevent the costly litigation than it is if they are halfway through a matter. That process operates as a kind of reality check for those clients. The other—

Mr LEESER: Do you know whether your Commonwealth equivalent does the same at the Human Rights Commission?

Mr Levin : As far as I am aware there is no equivalent service at the Commonwealth level. Linda adverted earlier to the way in which referrals can come through as a result of a phone call on an ad hoc basis. We would say that that is not necessarily the most efficient or desirable way for those clients to get in contact with quality legal services. A better approach is if we are funded to do so, if they have the opportunity to provide that advice at an early stage. There is a particular case where this is borne out. We have had the benefit of reading the submission of Kate Eastman, Senior Counsel, and Trent Glover. In that submission they refer to a case of Ekermawi. That has a particularly long and complex procedural and legal history, which I will not go into. But the points to take away from that case are illustrative in response to your question, and that is a case that Legal Aid was representing Mr Ekermawi in, but only at a late stage of proceedings. Mr Ekermawi was unrepresented at the ADB stage. That was the point at which his complaint, which did relate to racial vilification under state legislation, was declined. After it was declined he sought leave from the state tribunal, NCAT, for his matter to be heard, and he was unsuccessful. But he was unrepresented there as well.

That then resulted in a long process of hearings and appeals that ended up in the Court of Appeal on judicial review grounds that he had been denied procedural fairness. He had fundamentally misunderstood the directions given by the tribunal, and he therefore had not had the opportunity to make submissions on key points raised by the respondent. He was successful on appeal in the Court of Appeal. It was remitted to the tribunal, and part of his claim was substantiated. What we would say about that case is that it illustrates that if a person receives assistance, in particular from Legal Aid, at an early enough stage a lot of cost could be saved. In fact, that matter may never have needed to go to the Court of Appeal had advice been available at that time from Legal Aid or another service at the ADB stage.

Mr LEESER: Although legal advice in and of itself is not necessarily curative of controversy. For instance, in the QUT case the complainant had a very experienced discrimination lawyer representing her, yet that is a case that the Federal Circuit Court, as it now is, found had no reasonable prospects of success.

Mr Levin : I would agree with that statement, because discrimination law is an area of law that is incredibly technical, incredibly complex, and often they are matters about which reasonable minds may differ. So ultimately the distinction between a matter that is unmeritorious and a matter that is perhaps clouded in doubt—a phrase used in our submission—or unlikely to succeed on one view but that would perhaps succeed on another, those are the arguable cases. And we would say that arguable cases should not be prevented from having an opportunity to properly garner and test evidence in a judicial context by virtue of an amendment that stymies that possibility at a much earlier stage.

Senator McKIM: Thank you all for your submissions, which, although I will not speak on behalf of the committee, I found very informative and helpful. Many of your submissions have canvassed issues that have been raised in a number of other submissions, so, in the interests of time, I just wanted to go to a couple of matters that were not broadly canvassed. Just to start with the Kingsford Legal Centre's submission and the case study of Sally that you have provided, in your commentary on that you said that a vilification complaint cannot be made if the offender incorrectly assumes the race or national or ethnic origin of the person. Has that been tested in the courts? Or is that a policy position of the Human Rights Commission, or is it your legal opinion? Where does that comment come from?

Ms Nawaz : I am unaware of whether it has been tested in the courts, but I could take that on notice. But my understanding is that given that the Racial Discrimination Act prevents vilification on the basis of race, national or ethnic origin, if someone in the position of Sally was to be vilified on the basis of assumed race then that protection does not exist and Sally could not bring such a complaint under the law.

Prof. Cody : And in other legislation relating to race discrimination or in other types of discrimination it actually states 'presumed or assumed'—for example, around disability. That would imply that it did have to be included explicitly within the legislation rather than—

Senator McKIM: Yes, and I certainly accept that and take that on board. If you are able to, I would appreciate your taking that question on notice, and perhaps you can answer this one here: has it been tested in the Human Rights Commission? Has that opinion been tested in the Human Rights Commission? In other words, has the matter been taken to the Human Rights Commission where there has been an inaccurate assumption of the race of the person involved?

Ms Nawaz : I would say that due to the confidential nature of the complaints handling processes of the Human Rights Commission we are not in a position to answer that, unfortunately.

Senator McKIM: I know that we are already over time, so I will leave it there.

Senator PATERSON: This question is directed mostly to Legal Aid New South Wales, but if others feel that they could assist then I would appreciate that. A submission to the inquiry was made by Calum Thwaites, one of the students in the QUT case, one of the respondents. He approached some legal aid organisations in Queensland to receive representation because he was of limited means and could not afford to pay to be represented. He described a couple of things: one, he described being treated dismissively because he was a respondent in a racial discrimination case; and, two, he was turned away immediately, he believes, because of the nature of his complaint. So I am just wondering if you have any examples of a respondent in a racial discrimination case that you have represented.

Mr Levin : I may have to take that question on notice because none come to mind and it is not in the usual course of the work that legal aid does.

Senator PATERSON: Why is that?

Mr Levin : I do not think I am in a position to answer that comprehensively here today, but it might assist if I, indeed, check.

Senator PATERSON: If you take it on notice, that would be helpful.

Mr Levin : Yes.

Prof. Cody : Could I respond to that?

Senator PATERSON: Yes, please.

Prof. Cody : The Kingsford Legal Centre would advise both respondents and complainants in discrimination cases, including race vilification. We have advised, for example, Anglo-Saxon Australians about their ability to bring complaints of discrimination. Our guidelines are that we are there to assist disadvantaged people. If the respondent is an employer or an organisation that has means, for that reason we obviously would not be representing them. It is most likely, therefore, that we would represent complainants rather than respondents, but we have represented respondents. One of the cases that we represented a respondent in was around the Coogee women's pool. It was attempted some years ago to have that open to men and women.

Mr Levin : Could I add to that response briefly? Similarly, we provide advice services to respondents on occasion. It is unusual for respondents to be referred to Legal Aid on a duty roster service, for example, at NCAT, but it does happen. It has happened over the course of the years. We obviously provide that advice when it happens. Similarly to Kingsford Legal Centre and other legal centres, Legal Aid has very stringent means and merit tests and we also have internal policies about priority clients. That means that we are working for the most disadvantaged and vulnerable people socioeconomically across the state. Almost as a matter of self-selection, those people tend to be complainants rather than respondents. I will still take the question on notice because it is within the realm of possibility.

Senator PATERSON: Thank you. I would appreciate that. Could you also take on notice to provide any instances where people have asked you as a respondent for representation and you have declined and, if so, what the reasons for declining were.

Mr Levin : Okay.

CHAIR: I thank representatives from the Kingsford Legal Centre, Legal Aid New South Wales and the Redfern Legal Centre for their appearance today. Thank you.