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Parliamentary Joint Committee on Human Rights
12/12/2016
Human rights

EDGERTON, Mr Graeme, Senior Lawyer, Australian Human Rights Commission

O'BRIEN, Ms Julie, Director, Legal, Australian Human Rights Commission

RAMAN, Ms Padma, Executive Director, Australian Human Rights Commission

SANTOW, Mr Edward, Human Rights Commissioner, Australian Human Rights Commission

SOUTPHOMMASANE, Dr Tim, Race Discrimination Commissioner, Australian Human Rights Commission

TRIGGS, Professor Gillian, President, Australian Human Rights Commission

Committee met at 13:34

Evidence from Dr Soutphommasane was taken via teleconference—

CHAIR ( Mr Goodenough ): Welcome. I declare open this hearing of the Parliamentary Joint Committee on Human Rights. The committee is hearing evidence for its inquiry into freedom of speech in Australia. The Attorney-General has referred the following to the committee for inquiry and report:

1. Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss. 18C and 18D should be reformed.

2. Whether the handling of complaints made to the Australian Human Rights Commission (“the Commission”) under the Australian Human Rights Commission Act 1986 (Cth) should be reformed, in particular, in relation to:

a. the appropriate treatment of:

i. trivial or vexatious complaints; and

ii. complaints which have no reasonable prospect of ultimate success;

b. ensuring that persons who are the subject of such complaints are afforded natural justice;

c. ensuring that such complaints are dealt with in an open and transparent manner;

d. ensuring that such complaints are dealt with without unreasonable delay;

e. ensuring that such complaints are dealt with fairly and without unreasonable cost being incurred either by the Commission or by persons who are the subject of such complaints;

f. the relationship between the Commission’s complaint handling processes and applications to the Court arising from the same facts.

3. Whether the practice of soliciting complaints to the Commission (whether by officers of the Commission or by third parties) has had an adverse impact upon freedom of speech or constituted an abuse of the powers and functions of the Commission, and whether any such practice should be prohibited or limited.

4. Whether the operation of the Commission should be otherwise reformed in order better to protect freedom of speech and, if so, what those reforms should be.

The Committee is asked, in particular, to consider the recommendations of the Australian Law Reform Commission in its Final Report on Traditional Rights and Freedoms - Encroachments by Commonwealth Laws [ALRC Report 129 - December 2015], in particular Chapter 4 - “Freedom of Speech”.

The Attorney-General has requested that the committee report to parliament by 28 February 2017. The closing date for submissions was set as Friday 9 December 2016. However, the committee has agreed to accept submissions until 23 December 2016 if an extension is required.

This is a public hearing, and a Hansard transcript of the proceedings is to be made. Before the committee starts taking evidence, I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee. The committee prefers all evidence to be given in public but, under the Senate's resolutions, witnesses have the right to request to be heard in private session. It is important that witnesses give the committee notice if they intend to ask to give evidence in camera. If a witness objects to answering a question, the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may, of course, also be made at any other time.

The media has requested permission to film and take photographs of proceedings, and the committee has agreed to this. I remind the media that this permission can be revoked at any time and the media must follow the direction of the secretariat staff. If a witness objects to filming, the committee will consider this request. The media are also reminded that they are not able to take images of senators' or witnesses' documents or the audience. Media activity may not occur during suspensions or after the adjournment of the proceedings. Copies of resolution 3 concerning the broadcasting of committee proceedings are available from the secretariat.

Finally, on behalf of the committee I would like to thank all of those who have made submissions and representatives here today for their cooperation in this inquiry. I welcome Professor Gillian Triggs, Mr Edward Santow, Ms Padma Raman, Mr Graeme Edgerton, Ms Julie O'Brien and, via teleconference, Dr Tim Soutphommasane representing the Australian Human Rights Commission. Do you have any additional comments on the capacity in which you appear today?

Prof. Triggs : I would like, if I may, to make an opening statement and prevail upon your patience to go through just a general schema of an indication of the complaints processes of the commission and deal with the request in this inquiry to look at part IIA of the Racial Discrimination Act.

Firstly, though, thank you for that opportunity. As the commission celebrates its 30th anniversary this year, it is appropriate that parliament should scrutinise the operation of legislation for which it is responsible. Indeed, the commission regularly reviews its processes to ensure speedy resolution of the 65,000 or so complaints it has handled over the years. As members of this committee will have only recently received the commission's admittedly lengthy submission, I would like briefly to set out our responses to the four terms of reference upon which you have been asked to report. But I would like to begin by referring to a valuable maxim for those who propose law reform: hard cases make bad law. And I will explain in a moment what I mean by that.

I would like to begin with the second of the terms of reference, the complaints processes, as they relate in particular to the statutory responsibility of the commission to deal with, among other things, complaints under four statutes dealing with race, sex, disability and age. The public policy objectives underpinning the commission's complaint processes are impartially to facilitate the conciliation of allegations of unlawful discrimination. Conciliation is voluntary and confidential. Over the last five years the commission has received on average 20,000 inquiries and 2,300 complaints a year. Of those complaints, that the commission attempts to conciliate, 76 per cent have been successful. The complaints process is free and it provides timely and efficient access to justice for tens of thousands of Australians as an alternative to lengthy and costly legal action. I would like to set out the main features of the complaints process. I have a chart with me that might help, and every member of the committee already has a copy of it.

Senator REYNOLDS: It was so good that I took the liberty of handing it out to the members after you had tabled it this morning.

Prof. Triggs : I am very grateful. Thank you very much.

Senator REYNOLDS: It is very helpful.

Prof. Triggs : Thank you, Senator Reynolds. I hope so. What I would like to do now is just encapsulate what that process is so that it is clear. For Senator Di Natale and Senator Reynolds, I realise this repeats something of what I said this morning, but I hope you can just bear with me as I go through this because I think, if I may say so, understanding the complaints process as a general process is critical to taking us to the next stage with regard to reviewing the way in which the Racial Discrimination Act works.

First of all, can I point out that the High Court determined in the Brandy case in 1995 that the commission is not a judicial body. It makes no decisions about the law or about a complaint. It has no powers to determine or enforce any agreement that might be reached voluntarily by the parties. Complaints are brought by a complainant. The commission has no power whatever to prosecute a complaint, either before the commission itself or later before a court. A formal complaint is simply made. It is defined as a written allegation of unlawful discrimination by a person who is aggrieved. The president is bound to inquire into and attempt to conciliate the complaint. She is expressly prohibited from declining to do so, unless it is withdrawn by the complainant or otherwise resolved. For practical purposes, all complaints of unlawful discrimination are subject to that inquiry and conciliation process. The threshold is relatively low—relative, that is, to the significantly high standard applied by the courts. The low threshold for triggering the commission's processes reflects the primary function of the commission of inquiry and conciliating a complaint as an alternative to judicial proceedings.

As I said, last year, of those matters that we attempted to conciliate, more than three-quarters were successfully resolved, saving we believe something in the order of $200 million a year in potential Federal Court costs. In the overwhelming majority of the conciliated cases, parties agree amongst themselves to outcomes that typically include an apology. It might include: the removal of offensive materials, for example, online; changes to policy within a government department or a manufacturing company; and it might include staff training or a financial settlement. These outcomes are for the parties; the commission does not direct these agreements. The commission process is assessed by 94 per cent of both complainants and respondents as being satisfactory. Seventy-three per cent considered the service very good or excellent. On average, complaints are concluded within 3.8 months. Ninety-eight per cent of complaints are terminated for one reason or another within 12 months. If the parties ask for more time to seek resolution, that will usually be granted if reasonable.

The complaint process does not abridge the right of a complainant to appeal to a court if their complaint is not resolved. While a complainant may not apply to a court under anti-discrimination laws without first bringing the complaint to the commission, once the commission has terminated the matter or it has otherwise been withdrawn, the complainant is free to apply to the Federal Court or the Federal Circuit Court for a decision. In fact, on average, only about two to three per cent of unresolved complaints ever proceed to court and the Australian Human Rights Commission has no role whatsoever in any decision to proceed to court.

Vital to the success of conciliation, indeed of all forms of alternative dispute resolution, is confidentiality. In those rare cases where a party goes to the media to advance their case, conciliation becomes difficult to achieve—and I use the word 'rare' advisedly. This difficulty is compounded by the commission's statutory obligation not to divulge any information relating to the affairs of another person. Accordingly, the commission is not in a position to correct inaccurate statements and clearly the commission cannot comment on any matter that is currently before a court.

One aspect of the commission's role that has attracted particular attention has been the power to terminate unmeritorious complaints. The president has the power to terminate complaints that are vexatious, trivial, misconceived or lacking in substance. In fact, about 46 per cent of matters are withdrawn by the complainant or terminated on a number of grounds, including that the matter does not amount to unlawful discrimination. In considering termination, it should be remembered that a primary role of the commission is conciliation and to respect the rights of all the parties according to the administrative law principles of natural justice. All laws and processes should be subject to regular review and, if necessary, reform. While the complaints process has been refined over a 30-year period, it has provided genuine access to justice for many people.

The commission has, however, proposed amendments or improvements to the act to deal more efficiently with unmeritorious cases. In our submission, we suggest that the committee consider the following amendments: that the threshold for lodging a complaint be raised by requiring the complainant to allege an act that, if true, would constitute unlawful discrimination; that the written complaint should include details that indicate a breach of the relevant act; and that an application to the Federal Court should be permitted only with special leave of the court when the president has terminated a complaint because, for example, it is trivial, vexatious, misconceived or lacking in substance.

I now turn to the first term of reference, the concerns around complaints under 18C and D of the Racial Discrimination Act. It may be useful to put 18C complaints into perspective relative to the overwhelming bulk of the commission's work. About 3.8 per cent of complaints last year or only 77 cases were made under section 18C. The numbers of section 18C complaints are declining. Fewer than four such complaints a year ever proceed to court—in short, section 18C, while attracting significant public discussion, is but a tiny part of the commission's daily work. The small number of 18C complaints is important to understand because were this committee to recommend amendments to the complaints process, it should do so knowing that any amendment could have an impact on the remaining 96 per cent of complaints. Two-thirds of these complaints concern discrimination in employment and in the delivery of goods and services because of disability, gender and age—disability being the major area of discrimination complaints.

The reality is that most complaints of concern to most Australians relate to aspects of discrimination law that have nothing to do with racial or verbal abuse. May I repeat: hard cases make bad law. Any amendment may attract severe and unintended consequences. The commission believes that sections 18C and 18D, interpreted and applied consistently by federal courts over 20 years, strike an appropriate balance between freedom of speech and freedom from racial abuse. These provisions have served our multicultural democracy well in sending a message that race hate speech is not acceptable in Australia.

It is nonetheless true that there is some confusion as to the meaning of the civil prohibition on speech in public that is reasonably likely to offend, insult, humiliate or intimidate another person because of their race, colour or national or ethnic origin. The proverbial man or woman on the Manly ferry may reasonably believe that a mere offence or insult in the Australian vernacular would unjustifiably attract the anxiety and public condemnation that allegations of racial vilification can attract—a complaint that, as we have seen, can all too easily be made under the current act. As the former High Court judge Michael Kirby observed in Coleman v Power, insulting words are a well-known tradition in Australian politics from 'its earliest history'.

But, of course, as lawyers we know—and I am sure you do, and we at the commission know—that the Federal Court of Australia and the Federal Circuit Court have been consistent over the last 20 years in a number of cases in applying section 18C so that it covers only those acts that cause profound and serious effects not to be likened to mere slights. And herein lies the policy dilemma: there is, in the minds of some, a disconnect between the consistent jurisdiction of the courts and the ordinary meaning of the words 'offend' and 'insult'. For this reason, the commission supports the promotion of a clearer understanding of the judicial application of sections 18C and 18D. I might use some cases, if I may, to illustrate how the law actually applies in practice. It is notable that almost all 18C cases before the courts are dismissed, either because the provision itself is not breached or, very often, because the free-speech protection in section 18D applies. Perhaps I could give you some examples of those cases that have been found to contravene the provision.

The most recent one, and one that has received very little media attention, was the decision of the court in Murugesu v Australian Postal Corporation. And I hope you will excuse this language. I will not repeat all of it, but I will some of it. The rest of it is on the record. The court found that an employee who called the plaintiff a 'black bastard' and told him that 'you black bastards should do the slave jobs' had been grossly offensive, in breach of section 18C, and was not otherwise excused. Another case, and one that is very well known, of course, is the publications in the so-called Bolt case that were found not to be protected by section 18D, because they were inaccurate and had not met the good-faith precaution. In another case, the Kanapathy case, a solicitor was found to have breached section 18C when she called a court security guard a 'Singaporean prick'. Now, those are unusual cases. In other words, they did reach the standard, and the civil prosecution proceeded.

But let me give you an example of many of the others that are dismissed. So many of them are dismissed. In the Hagan case, the Federal Court found that the sportsground stand called 'Nigger Brown' was not offensive because it was a fond recognition of a former and much-loved player. In Walsh v Hanson, the commission found that the publication Pauline Hanson: The Truth did not contravene section 18C because it dealt reasonably and in good faith with a matter of public interest. In Bropho, the Federal Court found that a cartoon in TheWest Australian newspaper depicting an Aboriginal head asking to be sent back to England was protected as artistic and published in good faith. Finally, in Kelly-Country v Beers, the Federal Magistrates Court found that, while a comedian's stereotypical characterisation of an Aboriginal was crude and offensive, it was protected under section 18D as a comedy performance done in good faith.

Now, I have gone through those cases. They are in our submission in much greater detail, but I think they give you some idea of the seriousness of the ones that are successfully prosecuted under that civil provision and the overwhelming bulk of them which have failed to meet that test. I would suggest then that sections 18C and D do send a message to us all—that abusive, race-hatred speech is not consistent with Australian values. Indeed, were section 18C to be limited in any way by parliament, this would send precisely the wrong message—that language of the kind used in the cases that I have mentioned is acceptable. I suggest that to weaken section 18C in any way would be a seriously retrograde step. If anything, the section should be strengthened and clarified, as we said in our submission. With respect to the third term of reference, the commission totally rejects the underlying premise. The commission, the president and the commissioners do not solicit complaints; the bringing of a complaint is exclusively a matter for the complainant.

Finally, may I point out that the budget of the commission has been severely reduced over the recent years for a number of reasons. The core funding of about $14½ million for all of the commission's functions is seriously inadequate to respond to so many inquiries and complaints every year. As a backlog is now developing, the high standard of service to the community is at risk of being jeopardised. The terms of reference that you have to consider are complex, and we really do appreciate that. I and all my colleagues look forward to assisting the inquiry and your consideration over these coming weeks.

CHAIR: Would you mind tabling a copy of your opening statement?

Prof. Triggs : Can I do so tomorrow? It is just that the only copy I have got is much amended.

CHAIR: Okay, certainly. You have lodged a submission with the committee. Did you wish to make any amendments or additions to that submission?

Prof. Triggs : I do not believe so at the moment.

Senator REYNOLDS: I want to pick up a line of discussion we had this morning in relation to reported media comments about your thoughts on section 18C. I asked you what your thoughts were and whether you had been accurately reported in the press. You said that I was extrapolating from the interview. You said that the provisions need to be strengthened, which is what you just reinforced there. That article actually said you thought it could be made stronger by replacing the words 'offend' and 'insult' with 'vilify'. Is that still your thought or do you have other ways of strengthening 18C?

Prof. Triggs : The core point is that I do believe the provision could be clarified and, if anything, strengthened. With my colleagues, we have discussed this and have produced a submission that sets out the agreed position of the commission, which in fact reflects the submission we made to the exposure draft some 2½ years ago. I believe now that, rather than making any specific proposals to you as to how that drafting could take place, we believe that really the drafting of any strengthening or clarification of the provision is a matter for government. We will then help as much as we possibly can in responding to those suggestions, as indeed we are very happy to respond to Mr Leeser's proposals.

Senator REYNOLDS: Is that a yes or no to my question? Do you still think that 'offend' and 'insult' could be replaced by 'vilify'?

Prof. Triggs : As I said, the commission's position is that the position can be strengthened. I do not now, in relation to this inquiry, intend to make specific drafting suggestions; that is for the government.

Senator REYNOLDS: So that is maybe yes or maybe no. We also started having a talk about 18D and about the Bropho case, which you have obviously talked about in your submission here. As I understand it, in the Bropho case, section 18D operates by setting a condition that must be satisfied before an act, in this case 18C, applies. So 18D has to be a precursor consideration before a determination is made about 18C. You have given us this framework here, which is very helpful, but if you could just overlay then any commission considerations, and when 18C and 18D considerations come into play.

Prof. Triggs : I might ask my colleague from the legal division of the Australian Human Rights Commission, Mr Graeme Edgerton, to answer that question.

Mr Edgerton : Thank you for the question. Are you asking specifically in relation to the Bropho case? Were you asking more generally how 18C—

Senator REYNOLDS: No. The determination was very clear in the Bropho case in 2004 that 18D was a precursor consideration for 18C. We have a very helpful diagram about the Australian Human Rights Commission Act, but it does not actually say, for example, in the Race Discrimination Act, where the commission or the Federal Court takes into consideration 18D as a precursor for 18C.

Mr Edgerton : I am not entirely sure what you mean by 'precursor', but maybe I could say something briefly about the Bropho case.

Senator REYNOLDS: No. We went around this before. Very clearly, section 133 of the Bropho case—which I have here and I have read, and I can table it for you if you have not seen it—says, 'Section 18D operates by setting a condition that must be satisfied before an act to which this section applies may be lawful.' As you go through that judgement, it is very clear that 18D has to be decided before 18C proceeds. Having a look at that act and also the Australian Human Rights Commission Act and the process you follow for all four acts, at what point, if any, in an 18C case does the commission consider 18D?

Mr Edgerton : Maybe one answer to this is to say that the commission's process at the moment is very different from what it was in the Bropho case, and now the commission does not make determinations about whether or not 18C has been breached or whether a case comes within the exemption in 18D. It did do that at the time that the Bropho case was before the commission. This case was first determined prior to 2000, when the commission still had a hearing function. One of those functions was when complaints are made the commission makes a final and binding determination about the rights and duties of the parties. It makes a final determination about whether or not there has been a breach of 18C. That does not happen now. That was a consequence of the other case that we discussed this morning, the Brandy case, which found that the hearing function of the commission and the making of binding determinations was contrary to the Constitution. It infringed into judicial power.

The current process of the commission is that, when a complaint comes in, there will be an assessment to make sure it complies with the mandatory requirements in the act. Those mandatory requirements, you can see from this spreadsheet, are that it has to be in writing, the person has to be a person aggrieved—

Senator REYNOLDS: That is section 46P, correct?

Mr Edgerton : That is right. And the third aspect is that there has to be an allegation of unlawful discrimination. Once those requirements are satisfied, there is a valid complaint that has been lodged. There will be circumstances in which the commission will look at a complaint and say, 'This is so trivial, vexatious, misconceived or lacking in substance that we think it should be terminated on that basis.'

Senator REYNOLDS: This is section 46PH, correct—those nine tests that the president has available to work out whether it should be dismissed at that point?

Mr Edgerton : That is right. It is just one of those available grounds under section 46PH, but that is a very low threshold. The 'misconceived' or 'lacking in substance' threshold is really about whether there is no more than a remote possibility of merit that the case could go forward. Again, it is not an ultimate determination about whether there has been a breach of 18C and it is not an ultimate determination about whether the exemption in 18D applies. So there is that shift in functions. We will get rid of cases that are trivial, vexatious, misconceived or lacking in substance, but that is a pretty low bar to get over.

Senator REYNOLDS: So back to the preliminary assessment phase on this diagram, you go through and do that review under 46PH or you will decide to go into the conciliation process, which, as you have in your diagram, is either resolved or not resolved. Then you go into, as you said, 46PH, and then you can terminate it after that conciliation point. Is that correct up to that point? But at no point in that, when you are looking at an 18C matter, right through to termination or conciliation, is 18D a factor of consideration anymore, because of the Brandy case?

Mr Edgerton : That is not exactly right, no.

Senator REYNOLDS: Where does it come in?

Mr Edgerton : Can I make one point. We have this conciliation process in a sort of linear format, but you will see in the top right-hand corner that this says that the process varies according to circumstances. So there will be cases where, for example, termination might be considered very early in the process, or sometimes it is later in the process. I do not want to leave you with any misapprehension that this is the only way in which the process can—

Senator REYNOLDS: No, there is no misapprehension there. I think your diagram is quite clear—you can either do a preliminary assessment and then make a determination under 46PH, or you go into conciliation. But at no point for 18C considerations is 18D a factor, because of the Brandy case.

Mr Edgerton : No, that is not quite right.

Senator REYNOLDS: If you could clarify then at what point the commission, going through that initial process, would consider 18D.

Mr Edgerton : It would consider 18D at the third step, where it says 'obtain and review information'. So if we got a complaint in under section 18C, usually our first step would be to write to the respondent and say: 'We've got this complaint. It alleges that there has been a breach of 18C. We note that 18D provides an exemption. Can you give us a submission that tells us why 18D might apply?' So we would consider it under that third step of obtaining and reviewing information. If we formed the view there that it clearly could not be a breach of 18C or it was obvious that there was a breach of the exemption and that 18D applied then we may terminate at that point. This is why I am saying that the process varies according to the circumstances. If it is clear at that stage that an exemption applies, we may go down the preliminary assessment route, write to the complainant and say, 'It appears that this complaint is not meritorious.' The complainant then has a number of options available to them. One of those is to withdraw the complaint, so the complainant would review the information the commission has provided and say: 'We accept what you say about the merits of the complaint. Thanks for explaining the law to us, but we have decided that we do not want to proceed with the complaint.' It may be because of what the commission says; it may be for other reasons. But one option is withdrawing. Sometimes we provide feedback to a complainant—

Senator REYNOLDS: This is obviously at the heart of one of the things we are looking at. At either of those stages, is it correct to say that when a complainant makes a complaint, you will go back and say you think it is either frivolous or vexatious, or it might not meet section 18D? Do you ever go back and apprise people of the fact that there is a section 18D?

Mr Edgerton : Yes, we do.

Senator REYNOLDS: So you actually do take that as a test at that initial point—18D?

Mr Edgerton : We take it as a test in the sense that if it is clear that an exemption applies then the commission may terminate a complaint either as misconceived or lacking in substance, or as being not unlawful. That is 46PH(1)(a). Some of the exemptions within the whole body of the statutes that the Human Rights Commission operates under are easier to apply than others. 18D is a more difficult exemption to apply because part of the test for 18D is that the conduct is done reasonably and in good faith. Some of the other exemptions that we apply are more clear-cut, and it would be easier to apply those exemptions at that early stage.

Senator REYNOLDS: When you receive a complaint you always go back to every complainant and give them initial feedback or assessment, and you will have it assessed whether you think section 18D applies. You will raise that with the complainant, but do you raise that with the person who has been the subject of the complaint as well?

Mr Edgerton : I think you have characterised some of the evidence I have given maybe in more crystalline terms than I wound. I think you have said, 'You would do this in all cases.' As I said previously, the process varies from case to case, but the general process is, if we get a complaint in—

Senator REYNOLDS: Sorry, just to clarify that, because other colleagues want to ask questions. I appreciate the fullness of your responses. The point is the Human Rights Commission staff, at this early stage, will go through and make some initial assessment about 18D considerations, and then you may or may not decide that it is applicable and you may or may not tell the complainant and the person who is the subject of the complaint. So it depends on the discretion of Human Rights Commission staff at that point?

Mr Edgerton : If we are considering terminating on one of those grounds then we will write to the complainant and say, 'We are considering terminating on this ground. Do you have any submissions to make?' And the reason we do that—

Senator REYNOLDS: Conversely, on that point, if you have done that assessment and your staff—as you have just said, it can be very subjective—have looked at it and do not make that initial assessment that 18D applies then that is also making a decision about that right at the very early stage, whether you think it applies or it does not apply.

Mr Edgerton : I am not sure if I understand the question.

Senator REYNOLDS: Who makes that decision?

Prof. Triggs : I do not want to speak about specific cases. But let us take an instance in which somebody has produced a documentary that makes very negative statements about a racial group in Australia, and some people bring a written complaint to the Australian Human Rights Commission. They allege that they are persons aggrieved, that it is an unlawful discrimination and it is written, so it meets the preliminary requirements.

Senator REYNOLDS: Thank you. We will come back to that.

Mr PERRETT: I am an MP from Queensland. The discrimination act there has religion as a ground under which someone might take a matter to the Anti-Discrimination Commission. Section 18C was introduced into the Racial Discrimination Act by the Racial Hatred Bill 1994. The explanatory memorandum to the Racial Hatred Bill expressly states:

It is intended that Australian courts would follow the prevailing definition of "ethnic origin" as set out in King-Ansell. … This would provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims.

The term "race" would include ideas of ethnicity so ensuring that many people of, for example, Jewish origin would be covered. While that term connotes the idea of a common descent, it is not necessarily limited to one nationality and would therefore extend also to other groups of people such as Muslims.

There has been no judicial consideration of whether Muslims would be considered an ethnic group for race under the Racial Discrimination Act, but the Muslim community is impacted obviously by racial hate speech. I ask whether there is thinking about whether they should be specifically protected in the legislation, as the Jewish and Sikh communities have been recognised as being protected, through judicial interpretation of the section? So I have three questions. Have there been any complaints to the commission by members of the Muslim community about hate speech being directed at their community? How have these complaints being treated? Have they proceeded to conciliation or been dismissed? And, if they have been dismissed, was it because the complaint was not considered to be unlawful discrimination under the Racial Discrimination Act?

Prof. Triggs : Could I take a question on notice? We would have to look back into our statistics and cases.

Mr PERRETT: Yes.

Dr Soutphommasane : I may be able to give a preliminary response to that question, at least in relation to the coverage with respect to Muslim backgrounds. Mr Perrett, you are right to identify that Muslim backgrounds in practice have not been covered by the administration of the Racial Discrimination Act. There are a number of ethno-religious groups that have been able to claim protection from racial abuse and vilification, under part IIA—for example, those of Jewish background and those of Sikh background. But there has been no case law to date that has established that a Muslim identity could be considered an identity that is covered under the Racial Discrimination Act, in particular part IIA, given that the provisions refer to the attributes of race, colour and national or ethnic origin. That is not to say that Australians of Muslim background cannot claim protection concerning racial vilification, if there should be abuse for example that entails attention at both religious and racial background. To the extent that racial background is involved, a person may be able to lodge a complaint under the Racial Discrimination Act. I thought some of that might have been useful as a preliminary background, although of course the commission will take your question on notice to give you a more considered response.

Ms MADELEINE KING: Thank you for coming in today. It has obviously been a long process and I am sure we will hear from you again in relation to this. I enjoyed reading the submission, even though there was a lot of information in it. I thought it was very well informed and helpful for someone like me who has not had a great deal to do with the Human Rights Commission before, given my privileged place in society, quite frankly! I would like to clarify a couple of things. Professor Triggs, did you say before that the commission is expressly prohibited from ignoring or dismissing a complaint without going through some kind of consideration process?

Prof. Triggs : What I said is that under our legislation if a complaint—defined as a written letter alleging unlawful discrimination by an aggrieved person—reaches us then the president must inquire and investigate into it. The president may not decline to do so, unless it is resolved or withdrawn. That sets the stage before the rest of the processes start. Because of that very simple way of triggering the process, that is why we use the phrase that it is a very low threshold for us to begin a matter, even though at various stages it might be terminated by us or withdrawn or discontinued by the parties, for one reason or another.

Ms MADELEINE KING: There is a positive obligation on the commission to go through it?

Prof. Triggs : Absolutely.

Ms MADELEINE KING: That is set out in legislation?

Prof. Triggs : Yes.

Ms MADELEINE KING: I just wanted to make that clear for the record. In your submission and also in your discussion earlier you raised the other acts that the commission deals with, and that they use similar language is what we have in 18C in the Racial Discrimination Act.

Prof. Triggs : Just to make sure we get this right all the way through, because you are at the beginning stages and we want to get it as right as we can, that phrase 'offend, insult, humiliate and intimidate' actually was borrowed 21 years ago from the Sex Discrimination Act, but it is not true of other legislation that we deal with.

Ms MADELEINE KING: I totally agree. Let's talk about the Sex Discrimination Act, because I read in your submission that that is the history of the terms used in the RDA. What in your view would be the effect on the Sex Discrimination Act, and all that it has achieved, given that we are now moving into this review of that terminology in the Racial Discrimination Act.

Prof. Triggs : That is a question I would have to take on notice. I have not been concentrating on the effect of this on the Sex Discrimination Act. It is a very fair question, but I would like to think about it and get some advice before we respond. That might help your thoughts later on.

Ms MADELEINE KING: To me, as someone coming into this, it would seem to me that if you changed 18C of the Racial Discrimination Act—bearing in mind that I have read a lot of the case law about the high threshold of offend and insult as it is a very serious matter we are talking about and not the ordinary meaning of the words—it would mean that you could offend and insult at that high level on the basis of race but not on the basis of sex. So, clearly, we move into another area where we have to go through that act as well I would have thought. Anyway, I will wait.

Prof. Triggs : As a preliminary matter, my understanding is that the courts have been quite consistent in interpreting those words. You are quite right in the underlying premise of your question—that is, courts do leap from legislation to legislation trying to interpret particular words in very consistent ways. One very important case is the Monis decision, which concerned freedom of speech. That actually used the words 'offend and insult', but in the postal act. I mention it simply to make the point that if you change one piece of legislation you are almost going back to square one and what words are going to mean, because it then becomes different from other pieces of legislation. So it makes my point again. I would suggest that great care be taken before changing language that has been consistently interpreted by the Federal Court and Federal Circuit Court.

Ms MADELEINE KING: On the considerations by the court, you mentioned before—and correct me if I am wrong—that there were 77 cases last year—

Prof. Triggs : Yes, the last reporting year.

Ms MADELEINE KING: —made under 18C. Those numbers are declining over the years.

Prof. Triggs : They peaked about four years ago. They peaked and went right up in the context of some public matters in the sporting arena, as a matter of fact. We find consistently across all of our jurisdictions that whenever there is a big issue in the media then in the following weeks and months you tend to get more complaints along those lines. Perhaps if I could mention the case of the 'white men', which comes up. Once that is in the media you suddenly get an influx of cases on that issue. So one has to be a little careful about drawing too many conclusions about these peaks and troughs. But in the last year or so they have gone down to 77 in one year. I think it has gone down from about 150 or so. I think that figure might be in the submission itself.

Ms MADELEINE KING: And four of those proceeded to court.

Prof. Triggs : An average of 117 over the last five years. You can take on average, but like all averages they do not tell you about the peaks and troughs.

Ms MADELEINE KING: And of the 77 only four proceeded to court in the last year?

Prof. Triggs : An average of four a year go to court.

Ms MADELEINE KING: Under the Racial Discrimination Act?

Prof. Triggs : That is correct. So it is a very tiny part that emerges from the work of the commission. But they are important cases and they are often ones that clearly generate significant public discussion.

Ms MADELEINE KING: Some might say that that is quite a good success rate if it is only four cases out of that many. And it has also been declining as a general rule.

Senator PATERSON: Thank you for your submission. I appreciate it and I am particularly interested in the recommendations about reforming the process of how the commission deals with complaints. I think they are very constructive contributions. I am interested in what the effect of those recommendations would be had they been put into place prior to the particular case that has been of great interest, the QUT case. I have a number of questions about the QUT case. I realise, though, that it is before the courts and that is why am going to restrict my questions to the commission's handling of the complaint and not the merits of the case in the court. Had these recommendations you have made today been put in place prior to the QUT case, how would your handling of it have differed?

Prof. Triggs : The difficulty is that the entire process, papers, parties and actions in relation to the QUT case are in fact subject to judicial determination. They are also part of the case. So I cannot answer questions about what would have happened in that case had the threshold been higher. I think one can only talk about these issues as part of our general process or as a hypothetical case. But I cannot speak in any way that would illuminate how the QUT case has been handled. I am sorry about that. I know that it is exercising everybody, because that has an underlain the political impetus to consider these matters. It is extremely inappropriate for us or for me to comment on this case in its detail.

Senator PATERSON: If that is the case, why did you go on the 7:30 Report on 7 November to discuss the case at length.

Prof. Triggs : As you might recall, in that case I at length said repeatedly that I could not comment on the case; I could talk only about our processes, and that is what I have done over and over again. I cannot speak about the details of the case.

Senator PATERSON: With respect, Ms Triggs, I have the transcript in front of me and you did comment on the case. I have questions about your comments on the case, at length and in detail. For example, you talked about the length of the process for handling the complaint. You referred to the fact that it took 13 of 14 months and you went on to explain why it took 13 or 14 months. You said that some students had gone away on holidays, were difficult to connect and so on, so that was why it took much longer than usual. You went actually to comment on whether the case had substance. You were asked by Leigh Sales why you did not dismiss the case and you said it:

… had a level of substance. The complaints were ones that attracted a certain measure of concern about the nature of the comments that were made.

You went on in some detail to comment on the case. Why aren't you willing to do it today?

Prof. Triggs : I can only repeat that I cannot discuss the details of the case. I have been asked this morning about the time factor several times. I have responded on the time factor by reference to the fact that it is a very unusual time factor. But I cannot comment any further on this case.

Senator PATERSON: Why did you do so on the 7.30 report then?

Prof. Triggs : It was not my intention to do so.

Senator PATERSON: Why did you not tell Leigh Sales then that it was not appropriate for you?

Prof. Triggs : I did. With respect, if you look at the transcript, you will see that I specifically began that interview by saying, 'I cannot comment on the details of this case.'

Senator PATERSON: And then you went on to do so.

Prof. Triggs : No, not in my view.

Senator PATERSON: If this is not commenting on the case then I think we can explore this issue. You said:

In good faith we tried—

I will insert the words 'to conciliate'—

for 13 or 14 months.

Are you happy to discuss what constituted the good faith of that part of the commission in trying to conciliate the case?

Prof. Triggs : No. I can only repeat that we did everything in good faith to manage this matter consistently with our statute. I think that is a fair enough comment to make, especially in light of the barrage of public criticism. I think perhaps a reasonable person will understand that the criticism has been so misleading and so unremitting for weeks on end that I, as president, of course want to stand up for the reputation and the work of the highly trained staff of the commission and so I was prompted to assure the interviewer that the work of the commission has been done in good faith according to our statute. That in my view is not to give away details of the case. Also, as you would be well aware, the time spent in relation to this matter is, as I gave evidence this morning, most exceptional—rare even—and that is in the public arena. So I think I am more than entitled as president to emphasise that, in good faith, the commission staff have done everything they can to resolve this matter in a way that is in the interests of all the parties, and that is our job under the statute.

Senator PATERSON: I am happy to give you ample opportunity to talk about that good faith because I would like you to answer some questions, only ones that you have raised in the public domain so far nothing further. For example, was your comment that some of the students had gone away on holidays and that was one of the reasons that the process had taken such a long time, 13 or 14 months, right?

Prof. Triggs : No.

Senator PATERSON: What was not right?

Prof. Triggs : The way you put the question was inaccurate.

Senator PATERSON: I am quoting from the 7.30 report transcript. Some students have gone away—

Prof. Triggs : I do not have that transcript.

Senator MOORE: Can Professor Triggs get a copy of the transcript? Rather than Senator Paterson just talking about it, it might be useful if we could be reminded of exactly what the transcript says.

Senator PATERSON: I would be very happy for copies of the transcript to be made although I only have one copy myself and I am relying on it to quote from. Let's just stick with this one moment and I will ask for it to be distributed. You said:

Some students had gone away on holidays, were difficult to connect and so on so that was why it took much longer than usual.

Is that correct?

Mr Edgerton : It might assist if I can provide some more explanation about why it is that we cannot comment on the QUT proceedings as it is currently proceeding. I know it sounds like it might be an unusual thing to say.

Senator PATERSON: Thank you but this was well litigated this morning at another committee's hearing. I do not think there is anything necessarily that can be added here. I am interested in Professor Triggs's comments.

Senator DI NATALE: Professor Triggs has said on a number of occasions that she does not want to discuss the details of the case. She does not feel that it is appropriate. Senator Paterson is continuing to go down this line of questioning. I think Professor Triggs is within her rights to repeat the statement she made this morning and has made already before this committee. If Senator Paterson wants to waste his time pursuing a line of questioning that Professor Triggs has indicated she is not at liberty to answer, that is his prerogative.

Senator PATERSON: Thank you.

Senator DI NATALE: But he should not expect an answer from Professor Triggs.

Senator REYNOLDS: Maybe I could suggest that I think Senator Paterson is perfectly entitled too. So why do we not actually suspend this until we can circulate the transcript because it was what was said publicly. Maybe if we could get that circulated, Senator Paterson, and then come back so we have all got it.

Senator PATERSON: Thank you.

Senator MOORE: I would be really interested to hear from the legal adviser to the commission exactly what the position is. Personally, I would be interested in hearing that. You began to give that answer and it would be useful to get that on record.

Mr Edgerton : In ordinary cases, if a matter goes from the commission to a court, we would not comment on the contents of that proceeding until the proceeding had concluded. Largely the reason for that would be the personal information of the parties to that proceeding. The QUT proceeding is slightly different, in the sense that the respondents to the proceeding have raised as an issue the way in which the commission handled the proceeding. They say that there was not a proper inquiry, and they say a result of that is that the case was not properly brought before the court. One of the issues that is currently before the court—in the sense that, if the appeal is successful and the case is remitted back to the Federal Circuit Court—will be the way in which the commission handled the case. It would be completely inappropriate for the commission to comment on its handling of the case while that matter is still in front of the court.

CHAIR: I might alternate the questions to the opposition while the transcript is being photocopied. Is there an opposition member? Senator Di Natale.

Senator DI NATALE: Thank you, Professor Triggs. Without going into any of the details of the cases, it seems to me we have got really a couple of high-profile cases that have dominated this debate. We have had the QUT case—and I note that a number of selective facts have already been leaked into the public domain and that you are restricted in terms of how you can respond to those. I also note, based on what you told the committee this morning, that the Leak case now appears as though it will not proceed. Obviously we know about the Bolt case. So we have had a couple of high-profile cases, one of which has been proven, one of which is still underway and another one which has now been dismissed. I would like to hear from you the broader context in which those cases sit. You gave some evidence this morning that I think might be of benefit to this committee. In terms of the total number of cases that you hear: what are the number of inquiries that are made; how many cases are heard each year; what is the likelihood of a case being resolved; and what is the level of satisfaction with the process? Perhaps you could just talk us through all of that.

Prof. Triggs : Perhaps it would be helpful to do that in the context of this chart that we have produced. Broadly speaking, as I said in my opening address, about 20,000 inquiries are made to the commission every year, but of fully crystallised complaints that are written making the allegation of unlawful discrimination, and they are by an aggrieved person, they come down to, on average over the last five years, about 2,300 cases. Of the ones that we try to conciliate—and some we cannot because the parties just are not interested in conciliation, and this is a voluntary process—76 per cent are successfully conciliated. That is why we have such a high rate of satisfaction with the work of the commission. We have a 94 per cent rate of satisfaction for both respondents and complainants. Did you want me to put the relative position of the Racial Discrimination Act matters?

Senator DI NATALE: I am more interested specifically in the—

Prof. Triggs : The general process?

Senator DI NATALE: Yes.

Prof. Triggs : I think that pretty much answers it then.

Senator DI NATALE: So there are 20,000 or so inquiries, ballpark, and—again we are talking rough numbers—2,000 or so formal complaints. Of those, how many did you say ended in a formal conciliation process?

Prof. Triggs : Something like 1,500 would actually go in, and 76 per cent of that number would be successfully conciliated.

Senator DI NATALE: At the end of that process, you have got either two parties who do not agree, or, in a larger number of cases, actually a resolution where the two parties understand each other's position.

Prof. Triggs : Yes.

Senator DI NATALE: You have got a very tiny minority that end up proceeding with legal action, and you have got a 94 per cent satisfaction rate for people who have made a complaint and have gone through that process. So we are talking here—and this what I really do not get with this whole issue; it feels like to me like a solution in search of a problem. We have 20,000 people every year contacting you. We have thousands going through this conciliation process. We have the vast majority coming out of it saying, 'Well, actually, this worked out well for all parties.' And we have a couple of cases: one in which the facts are completely disputed and where, as we have heard, there has been some selective leaking of the facts, and one which has been dismissed only recently. Yet we are here having an inquiry to look at how we change this process. Does that strike you as odd?

Prof. Triggs : That is why I go back to that law school principle: hard cases make bad law. These are two issues that have been promoted in the media, and that is rare. Most parties accept that confidentiality is vital. You cannot get conciliation of a matter when the parties are fighting it out in the media. Now, these are two matters which have sparked enormous public concern and a great deal of discussion. I have forgotten the figures—they are in our submission—but it was something like 50-something media pieces over 35 days. I forget the exact number, but it was phenomenal number—1½ media items a day for weeks on these questions.

Indeed, this is for you to think about, really, rather than me, but it does mean that the questions both this morning and today are driven by two cases that are very rare, in the sense of being pursued in the way that they have been, and where some of the facts, but not all of the facts, have been leaked to the media. And, of course, that is what is very frustrating for me as president, because I would like very much to defend and explain.

The Leak case is on the record and finished, so I do not think we really need to worry about that one anymore. But what we do need to think about is the QUT case, which has raised very many justifiable public concerns, because the information that the public has is so distorted and so one-sided that it is very, very difficult for the public or politicians or parliamentarians to get a fair assessment. Everybody views the Human Rights Commission processes through the prism of the QUT case, but the reality is that we have been managing this legislation, or most of it, for 30 years, and we have managed 18C for 20 years, and we have done it with very little public or parliamentary interest in what we do. I think one needs at least caution, accepting that all laws and all processes can be refreshed and reformed and reconsidered. That is perfectly reasonable. It is not my place to debate why this inquiry has been called, but what I do ask is that we try to get the QUT case in perspective and to understand that vital elements in relation to it are not yet in the public arena. Some aspects are.

Senator DI NATALE: Often in the debate we hear about 'offend' and 'insult' and we hear that we should not be prosecuting the law on the basis of people's hurt feelings, yet we have heard through your submission that the courts have really only applied that test where a behaviour has had a profound and serious effects on individuals. One of your suggestions was that we more clearly define what the offend-and-insult test actually means and how courts have interpreted it. Can you elaborate a little more on that?

Prof. Triggs : As I said in my opening address, if we were to go to the man or woman on the Manly ferry—in English law it is the man on the Clapham omnibus, but let's take someone on the Manly ferry—and ask them to read 18C, they might say, 'Well, look, no. Offend and insult, well, we do this all the time. Look at the comedian. Look at media commentary. Look at what people say to each other jokingly or half-jokingly. The Australian dry humour—we're used to this. It is silly to have a right of civil action in relation to these kinds of words.' That might be the view of somebody in this area, but we know that the court actually has a very specific meaning, and it has been very consistently applied, as you correctly say: more than mere slight but something that is serious or profound that effects the individual. Now, as I said, the dilemma is that you have a possible individual view at a lay level, if you like. The ordinary meaning is viewed by the public at one level and by the courts at another.

The question is—it is for you: how do you try to bring those two, perhaps, together? We have said that we think there is a case to be made for clarification. There are various ways as a drafting technique that you could achieve this. We feel at the commission that we can certainly discuss potentials. But, frankly, this has now moved far from the technical legal question into the political arena. For us to comment in detail about whether taking certain words away or adding a word—'and' instead of 'or', or putting another word in to strengthen it—we are getting engaged in, essentially, a political process. We feel that we played, I believe, a helpful role with the exposure draft by the Attorney-General. We put a lot of work into that process. It was ultimately not successful, but we feel now that the better part is for us to say that some clarification is required and that, in a way, it is the draft person's job and the government's job to make some proposals that the public and, we amongst others, could respond to.

Dr Soutphommasane : Mr Chairman, would it be possible for me to very quickly elaborate and to add to Professor Triggs' response with your indulgence?

CHAIR: Yes, just briefly, please.

Dr Soutphommasane : Senator Di Natale, I do believe it is important to promote a clear understanding of the judicial interpretation and the practical operation of sections 18C and D. The commission has a fundamental role in explaining how the law works to the Australian public. I think you and other members of the committee can be assured that we are open to redoubling our efforts to better explain how the law works because the law does only capture acts and conduct that cause profound and serious effects which are not to be likened to mere slights. The law does not cover hurt feelings. There is an objective test that is applied by the courts. Moreover, the words 'offend' an 'insult' relate to offence and insult on the grounds of race, which is very different to mere or generic forms of offence and insult because race is something that no-one has any control over. One can choose one's beliefs and opinions, for example. Offence and insult directed at people's opinions is one thing, but offense and insult that is directed at someone's race—an immutable quality of someone's person—clearly falls into a much different category.

CHAIR: Thank you. I will now alternate to Senator Paterson.

Senator PATERSON: I understand that the transcript has now been circulated to all witnesses and all committee members. I will return to my final question before we move on to other matters—which is to clarify, Professor Triggs, please, whether your statement:

Some students had gone away on holidays, were difficult to connect and so on. So that was why it took much longer than usual.

is a statement that you stand by?

Prof. Triggs : Well, this is a transcript. I would like to study the transcript. I have not seen this before. But my position is one that I stated on the first page of the transcript—that the matter is now still before the Federal Court, and I do not want to comment any further on the matter.

Senator PATERSON: You certainly did state that at the beginning of the transcript and then you went to comment on the matter. So I am just asking you to respond to a pretty plain black-and-white statement.

Mr PERRETT: Chair. I think that once the witness has answered surely it is a case that we could move on. We are going over old, tired ground here.

Senator PATERSON: Mr Perrett, you are entitled to use your time as you wish, and I am entitled to use mine as I wish. And this is how I wish to use mine. So, Professor Triggs, I invite you to respond to this statement in the transcript.

Prof. Triggs : As I have said, the matter is before the Federal Court, and I am not prepared, now that we have a formal inquiry into the matter, to make any further comments in relation to this case.

Senator PATERSON: Am I to understand from your statement then that the thing that has changed between the 7.30 report interview, where you were willing to comment, and now, where you are unwilling to comment, has been the commissioning of this inquiry?

Prof. Triggs : No. I did not say that all.

Senator PATERSON: Right. You said now that a formal inquiry has been commissioned you did not want to comment any further.

Prof. Triggs : I said in the interview, 'I do not want to comment on this Federal Court matter.'

Senator PATERSON: Yes, and then you did comment on it.

Prof. Triggs : I am saying it again, and I have said it over and over again, and I cannot say it more clearly than I have said it: I cannot make comments on the specific aspects of this case other than ones that I have made in relation to the timeliness or otherwise of the case—and I did so again on the record this morning and I did so some weeks ago before the Senate estimates committee—and that is, this is an unusual, rare case in which the matter took a great deal longer than is usually the case. The average time for settlement is under four months; 98 per cent of cases are resolved within a year. This is very unusual, and I have made comments about the time taken. But I cannot make any further comments in relation to a matter that is before the Federal Court.

Senator PATERSON: I appreciate that view—

CHAIR: Senator Patterson, I will make a determination. In my opening remarks I said:

If a witness objects to answering a question, the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may, of course, also be made at any other time.

Senator PATERSON: Thank you, Chair.

Mr PERRETT: Chair, it is the Deputy Chair here. We have had the same question answered the same way five times. I thought it was very clear what the President was saying and the reasons why. I would hope that we could move on, because there are many other aspects of the terms of reference that I would like to get to.

Senator PATERSON: Thank you again for your assistance, Deputy Chair, but this is an opportunity for the commission to state whether it is making a public interest immunity claim and it does not wish to answer the question and it has an option to do so.

Senator DI NATALE: Chair, it is an accepted principle that, when a case is before the courts, we do not prejudice the outcome through the questions that we ask. If the committee were to insist on an answer here, that would be setting an extremely dangerous precedent. So, given the ruling you have just made, it is a question for the committee to resolve—

Senator PATERSON: No, it is a question for the witness to answer, unless you are making—

Senator DI NATALE: The witness has answered this question already on five separate occasions. So I am requesting, through you, Chair, that we have an opportunity to discuss this, and, if Senator Paterson decides that he wants to continue with this line of questioning, that we, as a committee, resolve whether the witness should be compelled to answer it. But, again, I would urge the committee to consider very carefully prejudicing the outcome of a case that is before the courts.

CHAIR: I have just referred to the Senate standing orders, which say: 'if a minister or an officer declines to provide material'. And the question is: is the officer making a claim of public interest immunity? Are you, Professor Triggs?

Prof. Triggs : Can I take that on notice? We may need to consider that, and I will answer that question as quickly as I can, on notice, if I may.

CHAIR: Okay. All right.

Senator PATERSON: Chair, my understanding is that a public interest immunity claim cannot be taken on notice. A question can be taken on notice, but not a public interest immunity claim. If you are declining to answer a question, you have to state that it is because you are making a public interest immunity claim.

CHAIR: Senator Moore?

Senator MOORE: Chair, I would like to have a private meeting, and I would like to get some advice from the Clerk on this issue. I do not, from my experience, believe this is a public interest issue, and I would like to get some clarity on this from the Clerk. Do we want to defer questions on this and keep going and have a private meeting about this later, or actually break and have a private meeting on this at the moment?

CHAIR: In the interests of time, should we pursue another avenue?

Senator PATERSON: No, I think Senator Moore's proposal is correct. I think we should resolve this issue, and I am happy to have a private meeting to discuss it and seek advice if necessary.

CHAIR: Currently? Okay. I will now suspend the hearing temporarily so that we can deal with this matter in private.

Mr PERRETT: Chair?

CHAIR: Can we call you back, Mr Perrett, from our private meeting?

Mr PERRETT: Sure—from your private meeting.

CHAIR: Thanks.

Proceedings suspended from 14:48 to 15:3 8

CHAIR: I will now reconvene the hearing. Firstly, there is an amendment to the hearing schedule. With the agreement of the witnesses, we propose to continue with the Human Rights Commission until 4.15 this afternoon, followed by the Attorney-General's Department, if available.

After our deliberations in our private meeting, the committee has asked, Professor Triggs, in relation to Senator Paterson's questioning: are you claiming public interest immunity?

Prof. Triggs : I am taking the matter on notice with a view to discussing this issue with the Attorney and possibly taking a public interest immunity point. I, in the first instance, would like to take the issue on notice to discuss with the Attorney.

CHAIR: The committee did deliberate that there was the possibility of conducting an in-camera hearing should you wish to provide answers to those questions. But I take it that you are taking the matter on notice?

Prof. Triggs : On notice for the moment so that I can discuss it with the Attorney and have his views. Then we will decide what the next step is.

CHAIR: So we will proceed to a different line of questioning for now.

Prof. Triggs : Thank you.

Mr LEESER: In paragraph 28 of your submission you say:

It is important to recognise that any change to the Commission’s complaint handling process would affect the way in which all complaints are dealt with.

If I may say, I think the commission's submission is put on the basis that the same complaints-handling procedure would need to continue for all of the enactments and all the complaints that are made to it—so, the same complaints handling procedure for matters under the Sex Discrimination Act as the Racial Discrimination Act. I want to put to the commission that perhaps going forward it may be that we look at a slightly separate complaints-handling procedure for matters under the Racial Discrimination Act, and I wondered if the commission had a view about that.

Prof. Triggs : We have looked in detail at your very thoughtful proposals. We do have a hand-up to you to deal with each of them and I am wondering if this might be an appropriate moment to pass this up to you, because you will be going away to think much more broadly and this will end very soon, so it may be an opportunity to get these points across. With regard to that particular question, it would be theoretically possible to carve out the very small number of 18C matters so that they are dealt with differently than all the other complaints under our legislation. All I am doing is re-stating what you are suggesting. Our response to that, again with the deepest respect—because if I may say so you are one of the few people ever to come up to discuss these possibilities and come up with some imaginative ideas, so we really appreciate it—is that we do not actually support that idea, primarily because, firstly, only a very tiny number of matters ever concern 18C. It is 3.8 per cent of cases, which I think I have already mentioned. Also, it would add a very significant additional administrative burden to have staff who deal with those matters as distinct from other matters under a different regime. So I would have to say that for the moment we do not think that is a good idea, but we really applaud the fact that you are thinking of these things.

Mr LEESER: I note there is not any public controversy over other matters you are looking at.

Prof. Triggs : Indeed.

Mr LEESER: That is why it perhaps bears thinking about a separate regime for part IIA. I wanted to look as recommendations 1 and 2, which are outlined on page 41.

CHAIR: Does the committee wish to accept this document as being tabled? There being no objections it is so ordered.

Mr LEESER: I am obviously not going to be at liberty to have a look at this while I ask you some questions, but maybe when you come at another time I can revisit some of these points with you. Looking at recommendations 1 and 2 on page 41 of your submission, they are based on the assumption that it is enough if a complaint, if true, could constitute unlawful discrimination a complainant would need to show, or indicates unlawful discrimination, in both your recommendations. Isn't the appropriate test here really to be one of there being a reasonable prospect of the complaint succeeding. That is the test that is required of the courts. I know you are not a court and I know your function is different to that of a court. But a court is supervising this legislation and effectively supervising the work you are doing. Why then would you have a case that is brought to the commission with a lower standard?

Prof. Triggs : I will answer that and then pass to my colleague Mr Edgerton. My understanding would be that, were that to be the question, we would transform ourselves into a court. We would be making a decision. We would be second-guessing what the Federal Court would do and we would say that this is a matter we believe does not meet that standard. So we would be really replicating the role of the court.

Mr LEESER: Are you effectively making a decision or are you offering an opinion as to what is happening? I see it more as offering an opinion rather than making a decision.

Prof. Triggs : It would be one thing to have an opinion, but if I understand the thrust of your suggestions they are ones that would lead to outcomes, and merely to express an opinion would not lead to an outcome. We do not give legal advice as such to our complainants and respondents, although we do give them as clear a view of the law as we understand it. So, in many cases, they will know what the respective legislation says and how the courts have typically interpreted it. But if I may I will pass to Mr Edgerton.

Mr PERRETT: Chair, it would be with Mr Leeser's permission, but there is something I could add to that question before we hear from Mr Edgerton, if that is okay with Mr Leeser?

CHAIR: Yes, Mr Perrett?

Mr PERRETT: It is that idea of: when looking at something, that it is not unlawful discrimination; so what is the evidence you look at, that you would say that this would not have any prospect of making a case for unlawful discrimination? So it is sort of the reverse of what you are already analysing. Do know what I am saying? It is under section 46PH, where you say that we terminate it because, in certain circumstances, it is not unlawful.

Mr Edgerton : Thanks, Mr Perrett; I think I understand that question. There are probably a number of different thresholds to think about. I think that, when I was responding to one of Senator Reynolds's questions before, I talked about the requirements for a valid complaint to be lodged, and they are quite low; it just needs to be a complaint in writing that alleges unlawful discrimination. If we are looking at our termination grounds for something that is trivial, vexatious, misleading or lacking in substance, again that is quite a low threshold, so we are talking about whether the case has a remote possibility of merit. If it does not, then we would terminate on that ground. That, though, does not mean that the complainant cannot go to court. So, even if it is terminated on a lacking-in-substance ground, the complainant still has a right to go to the Federal Court. One of our recommendations, recommendation 3, would change that—would mean that if something is terminated on that basis then you would need the leave of the court before proceeding.

Mr LEESER: I will come back to recommendation 3 if I may, but this is less about the termination, although it is a similar point; this is usually about the commencement of proceedings under recommendation 1 or recommendation 2, or lodgement of a complaint.

Mr Edgerton : That is right, and all recommendations 1 and 2 say is that it does amount to a raising of the threshold over what is there at the moment. At the moment, there is no requirement that there be any detail in the complaint that comes to the commission; there just needs to be a bare allegation that there has been unlawful discrimination. What recommendation 1 and 2 would do would be to require that allegation to contain some kernel that, if true, would amount to discrimination and also require it to have reasonably sufficient particulars of acts of alleged discrimination. So it is having more detail in the application now than is currently there. It does not require any evaluative process on the part of the commission. So the commission is not looking to see whether it considers that those acts are made out. All it is looking to do is to see whether an allegation is made which, if true, would amount to discrimination, ultimately. I think what you are asking, in terms of a reasonable prospect of success, is more of a merits evaluation of that complaint—'Is it likely to ultimately succeed?'—and that is more of an evidential question.

Mr LEESER: In the Federal Court, for instance, if you are to bring a case you are not allowed to lodge a proceeding unless you have got a reasonable prospect of success. I am saying: you are raising the threshold somewhat here, as to what you might put in, in terms of complaints that you might make to the commission. Why would you not have that same standard for the commission? We are applying the same law, whether it is the court or the commission applying the law. I suppose, as a supporter of section 18C and as somebody who wants to see public confidence in the commission's processes, the more that you align the commission to what the court is doing, I think perhaps the more solid the ground we are on.

Mr Edgerton : I agree with you that the court does apply that reasonable-prospects-of-success test. It does not apply it when cases are filed. So the registry staff, for example, do not look at a case that comes in—they do not check the statement of claim and then themselves make an assessment about whether there is a reasonable prospect of the case succeeding. Ultimately, that would be on application by one of the parties. But there is a real difference between the function that the commission performs and the function that the courts perform. Courts are about determining whether or not unlawful discrimination has occurred. The commission's role is not to make determinations—it has been the case for 16 years—and the commission's process is really focused on conciliation. What that means is: if there is an arguable case to be made that discrimination is there on the facts of the case, then the usual process at the commission is to proceed to conciliation. The reasonable-prospects test is a higher threshold than that. It is something that ultimately the court would make a call on, if the case went to court. But we think that, given the commission's role as a conciliator, it would be inappropriate for it to be making determinations at the outset about what ultimately a court might find.

Mr LEESER: But if a commission can terminate a matter that is lacking in substance—and this goes to some of the questions that Senators Reynolds was asking about with the interplay of section 18C and 18D, and the commission's assessment of those in the conciliation process—and if the commission is doing some level of assessment at any rate, why would the commission not be able to do that—to at least offer an opinion without making a determination, as it were, which gets around the chapter 3 issues?

Mr Edgerton : It does do that to some extent. In terms of making an assessment about trivial, vexatious, misconceived or lacking in substance, it will make a substance call. But, as I said, that is a very low threshold, and it is a lower threshold than reasonable prospects of success. There is an alternative ground that Mr Perrett referred to in section 46PH(1)(a), which is a 'not unlawful' ground. Typically the way in which the commission approaches that is: if there is a clear exemption that applies and it is obvious that the exemption applies, then the case can be terminated on the ground that it is not unlawful. But, again, if the case is arguable, we are unlikely to terminate on that ground. One example that is in our submission is: within the Age Discrimination Act there is an exemption for superannuation law that discriminates between people on the basis of age. If someone brings an age discrimination complaint to the commission and it clearly falls within that exception, we could apply that not unlawful ground and terminate on that basis. But in other cases where there are not applicable exemptions or where it is not clear if the exemption applies, we are much more likely to try and resolve the matter through conciliation.

Mr LEESER: Can I take you to the third recommendation about leave to go to court. What would be the grounds for leave to go to the Federal Court? What are the grounds for the Federal Court to assess whether leave should be granted? There are no grounds stated in this submission.

Mr Edgerton : There are not. That might be something that we would need to take on notice. I guess we had the idea that it would be a similar process to, for example, seeking leave to appeal an interlocutory judgement or, for example, a special leave application to the High Court—that there would have to be special circumstances such that the applicant could convince the court that it should hear the case.

Mr LEESER: I think I should indicate that I am as interested in some of the QUT issues as Senator Patterson because they illustrate some the questions that we trying to get at. One of things that I am interested in is: do you think we should look at putting some time frames around the conciliation process for parties to respond to requests and for the whole conciliation process to take place?

Mr Edgerton : I might let the president answer that, but if I can give you an initial response: most of the complaints that come to the commission are dealt with promptly. I think the president gave a figure of 98 per cent being dealt with within 12 months. That small number of cases that do take longer than that often have special circumstances attaching to them. There are particular cohorts of people who make complaints to the commission who need a lot of time to be able to effectively respond to those complaints. What I have in mind is people with particularly severe disabilities. I think if we started to put arbitrary deadlines on the length of the process the likely outcome is that some of those disenfranchised people would be likely to be the most affected by that.

Senator MOORE: I want to ask some questions at this stage about the term of reference which talks about soliciting complaints. I know your submission on page 69 over to 71 does talk about, from the Human Rights Commission's perspective, this issue of soliciting, and you also mentioned it in your opening statement. This particular issue really upsets me—that this has actually got this status in terms of an inference or a clear statement that the commission or other bodies are out there soliciting complaints. Until very recently—and, in fact, you talk about a Senate estimates question—had that issue been discussed with you? Had people talked about the commission soliciting complaints in the past?

Prof. Triggs : I will ask Dr Soutphommasane to answer that question, but I can say from my point of view of the last four and a half years it has never ever arisen. But I will now ask Dr Soutphommasane to respond.

Dr Soutphommasane : The issue has not been raised with me. It is a relatively new issue of concern.

Senator MOORE: Thank you, Dr Soutphommasane. Certainly one of the things that comes out consistently through the website and the interactions with the commission is the educative role that the commission plays. I am interested in your response as to whether the education role has been confused with solicitation—whether there has been any lack of understanding that educating people about their rights may be seen as actively calling people to make complaint.

Dr Soutphommasane : I think that is a fair characterisation of some of the commentary. There is a clear function attached to the Office of Race Discrimination Commissioner that is about promoting understanding and acceptance of and compliance with the Racial Discrimination Act. That function naturally extends to informing members of the Australian community about how they can access the law under the Racial Discrimination Act, including how they can lodge a complaint if they believe they have experienced racial discrimination or racial hatred. I certainly consider that an important part of my role and that it is an educative and informational role. And there is a clear expectation from the community, particularly members of communities who experience racism and hatred, that I play that role.

We have cited in our submission some of the public consultations that we have done in the past with various communities. One of the findings we had from those consultations was that there is a limited understanding of the Racial Discrimination Act and the protections that it affords so therefore that only heightens the importance of informing members of the public about the option they have to lodge a complaint if they believe they have experienced discrimination or hatred. That is a very different matter to calling for or soliciting complaints, which is a characterisation that the commission and I do not accept with respect to public statements I have made.

Senator MOORE: Has the commission had similar concerns raised about other elements of your responsibilities such as the Sex Discrimination Act or the ageing area?

Prof. Triggs : Not to my knowledge. I think one point that is worth stressing is that the commissioners play no role whatsoever in the complaints process. They have a predominantly advocacy and educational role. The president is exclusively responsible for this process so there is, in a sense, a Chinese wall—the commissioners do not engage in this process at all or they may on occasion ask to be informed about a matter but they have no role whatsoever in the way in which it is ultimately handled by the commission. I think it has been a very exceptional point made very recently that simply to advise a member of the public that they have the option or right to use processes under the Australian Human Rights Commission Act should not be confused with soliciting for complaints; they are two totally different things.

Senator MOORE: Following up on that point, certainly one of the things under the legislation is that you need to be personally discriminated against to make a claim. This term of reference refers to commissioners or third parties. I am raising the issue of the third party element, that someone could be deeply offended by something and be unable to complain themselves. This is clearly in the race area or in the Queensland legislation about abuse on the basis of sexuality. You may well be concerned about something that is there but you cannot complain so you may be, in your enthusiasm, trying to find someone else. Has the commission ever been aware of that kind of activity?

Prof. Triggs : The answer to that is yes. I will ask Mr Edgerton to expand on that. Or can I take that on notice?

Senator MOORE: That will be fine.

Prof. Triggs : Very briefly, the person must be the person aggrieved or acting on behalf of a person who is aggrieved. There are objective and subjective elements to the standard and I think it might be more helpful to the committee if we were to provide you with an answer on notice that sets that out as clearly as possible. We do in the submission but—

Senator MOORE: You provide in evidence the satisfaction rates of your clients.

Prof. Triggs : Yes.

Senator MOORE: How is that ascertained? Is that by survey? How do you find out that the large numbers that you put in your submission are actually content with the process or have felt as though it met their needs?

Prof. Triggs : We survey them once the matter is completed and ask them to give us their views on how they thought the process was handled. One of the things that we are gratified by is that the entities against whom complaints have been made have agreed, in 94 per cent of cases, that the process is satisfactory. I think it recognises the very great skill of our accredited conciliators within the staff, because they really try to be neutral, to facilitate the conciliation but not to direct it, in any sense, at all. It is ultimately a voluntary matter for the parties.

When that is very clear, the respondents will usually respond favourably to that environment, because they know that they will have, in a way, their opportunity to present their position. And it is confidential so that nobody is embarrassed—in most cases they never become public—that the parties are free to express their views, explain their different perceptions and reach an agreement that they themselves have agreed to.

Mr BROADBENT: We are having a conversation as we go into this inquiry about some serious matters, in regard to the balance between freedom of expression and totally inappropriate language in a multicultural society. This committee is only one part of that conversation. You are another part of that conversation. How do you think we can move towards balancing those two issues?

Prof. Triggs : You are asking the critical question: how does society achieve a balance between or among rights? Very few rights are absolute. Almost all rights have to be balanced. Parliament has determined the way in which this is to be balanced—in this case, with 18C on the one hand balanced by 18D on the other. If I may, I will pass to the Human Rights Commissioner, Mr Ed Santow, because I know he will want to contribute to this discussion.

Mr BROADBENT: I think you got off the hook very lightly.

Prof. Triggs : I promise you I did not mean to!

Mr Santow : The commission's position on the interaction between freedom of expression, on one hand, and freedom from racial vilification and hatred, on the other hand, is summarised at paragraphs 15 to 18 of our submission. Essentially, our position is this: freedom of speech is absolutely vital in Australia's liberal democracy and in almost every human endeavour, be it science, commerce, art, public discussion or private debate. We are better off to offer some measure of protection even to offensive speech, because that protects those important social goods. Striking the right balance is difficult, in many areas, including in defamation, privacy, intellectual property and so on.

This particular parliamentary committee has set out, I think very helpfully, in its 2014 guide to human rights the four key principles that should apply in this situation. We would certainly endorse those four key principles. They are: any restriction must be prescribed by law; it must pursue a legitimate purpose; there must be a rational connection to the objective; and it must satisfy the proportionality principle, which is a principle from international human rights law. Those are the principles that for us are clearly engaged.

CHAIR: Section 18C has been held by the courts to only apply to conduct having 'profound and serious effect and not likened to mere slights'. What would you say to a proposal to amend the Racial Discrimination Act, specifically to reflect such wording or clarify this meaning?

Prof. Triggs : Can I ask Dr Soutphommasane to deal with that because he is primarily, as the commissioner, responsible for that act.

Dr Soutphommasane : The law as it currently stands is the subject of settled law. There have been more than 100 judgements and determinations made over almost 20 years that reflect what you have just mentioned—namely that section 18C will cover only acts which cause profound and serious effects. In terms of proposals to amend the act, the commission's position is that an amendment is not necessary given the judicial interpretation and practical operation of the act. If there were to be any clarification of the act, it would only be warranted if there were uncertainty in how the law is applied. I do not believe that is the case given the weight of judicial authority on this matter. Insofar as there is a problem to solve, the problem appears to be a lack of understanding and explanation of how sections 18C and 18D relate and interact. The commission supports a better explanation of the operation of the law. If people were to appreciate that section 18C only applies to serious and profound effects, that it does involve an objective test and not a subjective hurt-feelings test, and if people also appreciated that 18C is accompanied by 18D, which means that you can cause racial offence, insult, humiliation or intimidation to others provided that you have done something reasonably and in good faith in the realms of artistic work, public discussion and fair comment and reporting of matters of public interest, I believe there would be a more ready understanding of the appropriate balance that is struck by the law in its current form. Again I would reiterate the uncertainty that any amendment would introduce to the operation of the law because there would be a need for the courts to interpret any amendment or change to the legislation. The status quo means that we have close to 20 years of settled law and jurisprudence upon which to draw.

CHAIR: Thank you. Do you consider that a proposal to remove the words 'offend' and 'insult' from section 18C of the Racial Discrimination Act would be compatible with Australia's international human rights obligations with respect to hate speech? Would such an amendment better balance interests relating to freedom of speech? And would protections in relation to hate speech be sufficient?

Dr Soutphommasane : By way of background, the full court of the Federal Court has held that the current form of part IIA is consistent with the obligations Australia owes under international law and is an appropriate expression of Australia's commitment to eliminate all forms of racial discrimination. If there were to be a removal of 'offend' and 'insult' from the provisions of section 18C or, for that matter, if there were to be any dilution or weakening of those provisions, I would be concerned that it would send the wrong message and that it would amount to Australia not conveying its commitment under international law with the same force. That is to say it could well involve a retrograde step and not be entirely in the full spirit of Australia's obligation to nip racial hatred in the bud and eliminate all forms of racial discrimination and hatred. It is important to recognise that the role of part IIA is to intervene and ensure that acts do not escalate into more serious forms of racial hatred and discrimination, and that is the role and function of part IIA in its current form.

CHAIR: Thank you. Are there any other amendments that could be made to part IIA of the Racial Discrimination Act that would still comply with Australia's obligations with respect to hate speech?

Dr Soutphommasane : If there are proposals to amend the law, it is incumbent on those proposing it to make the case and the argument for it. As I have noted, the current form of part IIA is entirely in line with Australia's international legal obligations and expresses the full spirit of our society's commitment to eliminating racial discrimination. But insofar as we are talking about our international legal obligations, there is a matter which has not been referred to yet, and that is the reservation that Australia currently has with respect to article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. That establishes a requirement to declare an offence punishable by law or dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination as well as all acts of violence or incitement to such acts against any group or group of persons of another colour or ethnic origin.

If we are talking about strengthening Australia's expression of its international legal obligations, it may perhaps be open to consider possible strengthening that can be made to the Commonwealth Criminal Code, which currently has provisions concerning the urging of violence against groups but which arguably could benefit from some revision. So taking a broad view of the issue, Australia could give fuller effect to its international legal obligations if it were to consider strengthening its criminal prohibitions against racial hatred and incitement.

Mr BROADBENT: I understand the term 'racial hatred', but I do not understand what 'hate speech' means. It does not mean anything. What is 'hate speech'? Is it inappropriate speech?

CHAIR: Is there a definition?

Mr BROADBENT: What is 'hate speech' and where does it come from?

Dr Soutphommasane : You raise an interesting question. Of course, we will have all kinds of terms used to describe speech and conduct which may have the effect of discriminating against others on the basis of race or that have the effect of expressing racial contempt or hatred. 'Hate speech' is one of those terms, but it is not a term that has expression in the Racial Discrimination Act as it currently stands. I do not believe it is a phrase that we have used in our submission because of the imprecise nature of that term. The terms in which we discuss expressions of racial hatred or conduct that may contribute to racial hatred include 'racial abuse', 'racial vilification' and 'racial harassment'. Some may use hate speech, but you will find that the commission has used other language to describe the kind of conduct that is under consideration here. I hope that is helpful.

Mr BROADBENT: Yes, thank you. It is being used in our notes here. So I am asking the question of our committee as much as I am asking the question of your organisation.

Dr Soutphommasane : Thank you. If I could quickly add: the word 'hatred' does not appear explicitly in the words of part IIA besides the heading of that part of the Racial Discrimination Act. But as I mentioned, the provisions of part IIA are directed at conduct that may escalate and add up to incitement or promotion of racial hatred and discrimination.

Senator REYNOLDS: I have a follow-up question in relation to your recommendations (1) to (3). On the face of it, I think they are actually very sensible ways of tightening the ability to go to the Federal Court. Could I have a couple of things clarified. In section 46PO, which is a current section where that can occur, it states:

… any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination …

But I could not find in the act any description of an 'affected person', whereas your submission talks about, and I think elsewhere in the act, and Professor Triggs talked today about an 'aggrieved person'. I might sound a bit pedantic, but in this discussion it is quite important to know who this applies to. Are you able to clarify the difference between an 'aggrieved person' and an 'affected person'?

Mr Edgerton : Yes. In section 3 of our act, an 'affected person' in relation to a complaint is defined as:

… a person on whose behalf the complaint was lodged.

It is either that person or the person who lodged a complaint that can make an application to a court once a case has been terminated.

Senator REYNOLDS: For example, a trade union or others could do it on behalf. So that is an affected person. What is an aggrieved person?

Mr Edgerton : A person aggrieved is a person who can lodge a complaint with the commission, and there is a lot of case law about what a person aggrieved is but it is essentially someone with standing to bring a complaint.

Senator REYNOLDS: For a layperson, what is the difference under the act between an aggrieved person and an affected person? Or are they essentially the same; two different ways of looking at the same thing?

Mr Edgerton : I think that they did choose language to differentiate between the two ends of the process and, in order to be able to make a complaint, you have to be aggrieved by the conduct, but I think that the people on whose behalf you are making the complaint would also need to having standing, so they would need to be aggrieved persons as well.

Senator REYNOLDS: Can you take that on notice. This is a really important point when you read the legislation, if we are going to tighten up this process, to be very clear about whether it is just a complainant or someone on behalf of the complainant, because affected person seems to be so general it could be almost anybody who is offended by the whole process.

Mr Edgerton : That is not the case, because it can only be someone who has made the complaint or someone on whose behalf the complaint has been made. They are the only people who can—

Senator REYNOLDS: If you could just clarify that further and then, in relation to your recommendations, where that would fit in because it does seem to be germane.

Ms MADELEINE KING: I know time is escaping us. I want to note and thank Professor Triggs for bringing it up earlier—section 6 of the submission that sets out the various exemptions under section 18D. Basically, there are quite long and descriptive pieces and summaries of what I would crudely term the racist things people still can do. There is an exemption, and it is very expansive and I would like to note it. What I would like you to comment on—and you might come back to this in a further submission—is the impact on complainants of the kinds of behaviours and speech that section 18C is trying prevent. Do you have any examples of how this kind of behaviour and speech does affect these people?

Prof. Triggs : There is a certain amount of social research that has been done which is powerful. There is a phrase 'Sticks and stones may break my bones but words will never hurt me' but the truth, we would say, is rather different. Words are important in society and they affect people deeply. There is certainly a lot of social science in relation to that, and we will take it on notice and get you some of that work that might help you understand. I think what we are really trying to come to grips with is: what is the social policy that underlies this provision? What is it the parliament was trying to protect and guard against when it enacted this law; and how are we giving effect to that fundamental hurt both to society and to the individual? So we will be very happy to come back to you.

CHAIR: Are you able to take two more quick questions?

Prof. Triggs : Yes, certainly.

Mr LEESER: I just wanted to clarify—I think you agreed with this earlier—that inserting into section 18C something that, as it were, legislates that it is only for profound and serious effects not to be likened to mere slights is something that the commission would support. Does the commission see that that would alter the law in any substantial way?

Prof. Triggs : Were the words of the court to be legislated?

Mr LEESER: Correct.

Prof. Triggs : Perhaps, again, I really must repeat that we do not want to get into a process of legislative drafting. Can I say that there are many ways in which the jurisprudence of the court could be more clearly available to the public. It might be possible to have a note to the statute which refers to that language of the court. It might be possible to develop some guidelines that could be used whenever the section is examined. It might be possible to broaden educational tools to make sure that this language is better understood or it might be possible to amend the precise words themselves.

We at the commission believe at the moment that the provision has a very clear jurisprudence, that it has worked very well and that it would be a retrograde step to amend it, because, in a way, that would put the jurisprudence right back to square one. We would have to go back to the courts again and see how new words are to be interpreted, and that opens up another range of possibilities. We feel that the better approach would be to clarify what the words actually mean according to the jurisprudence of the court. It has been consistent, it has been long term and it has actually worked very well for a very long time. But there are techniques for doing it. And I think perhaps when we are a little further down the track and if we have the opportunity to speak to you again then maybe it will be appropriate for us to comment on some of the ideas you are looking at. Or we would be very happy to do that during the process.

Mr PERRETT: I have a question further to what the president said. I was just wondering whether you could comment broadly on the impact on the complainants of the hate speech complained on. Could you give some examples, obviously without identifying complainants, in terms of that idea of feeling heard and that their complaint has been validated? I know you gave some average time frames, but perhaps you could go to that idea of the time frame between receiving the complaint and holding the conciliation and perhaps resolving it—76 per cent of the time—just how complainants feel in terms of being heard by a significant force.

Prof. Triggs : We will take all of those on notice and provide that information to you as soon as we can.

Senator REYNOLDS: I have a question that follows on from Ms King's questions, and it relates to a discussion we started having this morning about the Press Club speech on 17 November by Marcia Langton, Jacinta Price and Josephine Cashman, which you said you were aware of but had not yet seen. Perhaps I could ask you to take on notice a couple of aspects of that, because it was utterly shocking what they were saying. I will just read out a couple of things to give context to this question. They talked about reverse discrimination in the fact that their Indigenous leaders were not held to the same standards of account for human rights for women and children that the rest of us are, because they were not allowed to talk about these issues. They saw this provision as actually being a form of reverse discrimination. Jacinta Price said: 'We need to be able to do what the West has had the privilege to do for so long through constructive criticism and our leaders need to be held to account, just like everybody else in this country.' I think she was referring to the 10,000 Indigenous fathers—Aboriginal fathers—who are now in jail for committing the most heinous crimes against their family members. So, what they are saying, clearly, if you would have a look at that, is that in the operation of this particular act—what we are talking about now—how do we make sure that it is not used to stop us talking about human rights issues that we desperately need to bring to light?

Prof. Triggs : I think that is a very important question. Very briefly, I can say that the Children's Commissioner, Megan Mitchell, who is with us today, has already done work in relation to this issue and has reported. But we will give you a much more complete answer to that question. It is a fair question. In other words, we do not want a situation in which 18C, unprotected by 18D, would have a chilling effect on matters of public interest that need to be discussed, particularly difficult issues like this. So, I think your question is a very good one, and we will come back to you as quickly as we can.

Mr BROADBENT: I just want to say something while Mr Perrett is on the line. Mr Perrett, we were stuck with the word 'incentivation' about 10 years ago, or 20 years ago, and we are still stuck with it today. I do not want 'hate speech' to become the general-use word for inappropriate language, because it denigrates the nation.

Mr Santow : If I could just make one more point, paragraph 4 of the terms of reference draws attention to other free speech issues beyond those set out in the Racial Discrimination Act. Part 10 of our submission deals with some of those broader free speech issues. I would particularly draw your attention to recommendation 5 of our submission, which presents the option of the government through the Attorney-General asking the commission to undertake I guess a more comprehensive inquiry into some of those other free speech issues in areas such as access to the internet, privacy and media freedom to report on contentious public policy issues and so on. So, I just wanted to draw that to your attention.

CHAIR: Professor Triggs, I thank all representatives from the Australian Human Rights Commission for your time today and answering these questions. Just a friendly reminder that the return date for questions taken on notice is 9 January. We will now have a five-minute recess while we proceed to the Attorney-General's Department.