Address to the Executive Council of Australian Jewry Annual Conference

Address to the Executive Council of Australian Jewry, Annual Conference

The Hon Catherine Branson QC

President, Australian Human Rights Commission

1 December 2008

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Introduction

I would like to begin by paying my respects to the Gadigal people of the Eora nation, the traditional owners of the land on which we meet today.

I would also like to thank Mr Robert Goot SC and the Executive Council for inviting me to speak here today.

A little over a month ago, I started as the new President of the Australian Human Rights Commission, ending my time as a judge of the Federal Court of Australia.

I am delighted to take up this position as human rights have been important to me throughout my adult life. Without any strong personal religious beliefs, human rights are the values by which I have tried to live my life.

Since starting at the Commission, I have been amazed by the breadth of the Commission’s work and range of human rights issues with which it is involved. To name just a few, in the past year, the Commission has been working on the Close the Gap campaign to achieve equality in Indigenous health, encouraging employers to create family-friendly and flexible workplaces, and improving access for people with disability to transport and buildings.

I can’t hope to cover all of the Commission’s work in this speech today, so I thought I would focus on some of the Commission’s work in relation to racial discrimination. Later, I will talk about my priorities as President and my vision for a fairer Australia.

Racial discrimination and freedom of religion

Many of you may be familiar with some of the Commission’s work in the areas of racial discrimination and freedom of religion.

A large part of our work in this area involves our attempt to resolve complaints from people who believe they have been discriminated against because of their race or ethnic origin, or have been victims of racial hatred.

Most of these complaints are able to be conciliated between the parties. But much of the racism and discrimination that takes place in our society can never be adequately addressed through resolving individual complaints or, indeed, by the determination of individual court cases. In many cases, the discrimination is simply too pervasive, affecting broad community groups, and entrenched in social attitudes and practices.

That means that we also have to address racial discrimination on a more systematic level, through reviewing government policy and conducting community consultation and education to promote diversity and tolerance.

Overcoming racism and building social cohesion are key priorities for the Commission at the moment.

Australian society is more diverse, ethnically and religiously, than ever before. So it is important that we continue to explore issues of religion, culture, diversity and cohesion, and how they fit together in our society.

We have recently launched a major consultation project called Freedom of Religion and Belief in the 21st Century.

As the name suggests, this project aims to find out what are the best ways to promote freedom of religion and belief in Australia and how to build a more socially cohesive and harmonious society that protects these freedoms.

To do this, we’ve partnered with the Australian Multicultural Foundation, RMIT University and Monash University, and we will run the project in consultation with the Australian Partnership of Religious Organisations.

We want to hear from all of the diverse faith communities in Australia, as well as other community organisations and individuals, about what role belief and religion should play in our society. How Australia should balance social integration and cultural preservation?

Particular issues that we are interested in looking at are the relationships between religion and the law, religion and gender equality, the media and perceptions of faith, education and security.

We’re currently conducting consultation sessions in different states around Australia and have received a positive response in written submissions. So if you haven’t thought about doing so already, I encourage any of you who are interested in these issues to take part.

Freedom of speech

Another issue that needs ongoing exploration in a multicultural society is the balance between the right to freedom of expression and the right to live free from racial vilification.

The federal Racial Discrimination Act makes racial vilification unlawful. The Act makes it unlawful for a person to do something that is likely to offend, insult, humiliate or intimidate another person, and they do it because of that person’s race or ethnic origin.

The Act also attempts to balance the prohibition on racial vilification with the freedom of expression. It does this by excluding certain types of communication from the prohibition.

Some of the things that could be excluded from constituting racial vilification are an artistic work or performance, such as a play where racist attitudes are expressed by a character; a fair and accurate media report about an incident of racially offensive conduct; and an academic publication that discussing and debates public policy such as immigration or multiculturalism.

Whether the laws achieve the right balance between freedom of expression and the right to be free from racial vilification is something on which I expect many people here would have different opinions.

It is also difficult to assess how effective the laws have been in either prohibiting racial vilification or protecting the freedom of expression because there has been quite limited use of racial hatred laws in Australia.

No doubt you are familiar with cases such as Jones v Toben and Jones v Scully, which invoked these laws against people responsible for distributing racially offensive, anti-Semitic material.  But such cases are relatively rare. This means, I think, that we must question whether Australia’s current racial vilification laws are adequate to protect against racial vilification and deal with contemporary forms of race hate speech.  I also know that there is disappointment that the Court’s decisions have to date had less practical effect than ought to have been the case.

Many of you will know that I was the trial judge in Jones v Toben.  It was troubling enough for me to read the material published on the Adelaide Institute’s website.  Much more troubling, however, was the deeply offensive anti-Semitic mail sent to my chambers during the course of the hearing.  It gave me a new insight into the depth of anti-Semitic feeling within a small minority of our community.



A current issue for our consideration is how can we address the impact of technological change on racism? New technologies, such as the internet and mobile phones, have the potential to change the way that racial and religious hatred are communicated. Cyber-racism can emanate from anywhere in the world and reach unparalleled audiences. Late November saw the release of the report on internet hate speech and the jurisdiction of the Canadian Human Rights Commission by Windsor Law Professor Richard Moon. He recommended that censorship of hate speech be dealt with exclusively by the criminal law. This recommendation has proved controversial in Canada. Nonetheless, the report is likely to prove of interest as we give consideration to cyber-racism in Australia.

Our current laws racial vilification laws have been in place for 13 years.  Whether they achieve an appropriate balance between the right to freedom of expression and the right to live free from racial vilification is something that we want to examine in the project on Freedom of Religion and Belief in the 21st Century.

Both freedom of expression and the right to non-discrimination on the basis of race are important features of a strong democratic society. So it is important to continually review the balance in light of evolving social and cultural conditions.

Community partnership projects

But there are limits to what the law can achieve. When it comes to creating social and cultural change, the law can send strong messages about what is acceptable in society. But ultimately, it cannot force people to change.

Even in racial discrimination cases that are successful in providing a remedy to individuals affected, many of the perpetrators remain committed to their prejudicial views.

In order to achieve meaningful and lasting social change, we also need to work locally, with communities and people who are directly involved, to promote awareness and to change basic attitudes and beliefs.

Only with such grass roots activities, bringing change from the ground upwards, will we achieve true social harmony and cohesion.

This is the idea behind the Commission’s work with Australia’s Muslim communities. Research and consultations over the past few years have shown that Muslim communities face some particular difficulties in relation to participation and inclusion in the wider Australian society.

The Commission has embarked on a number of projects aimed at enhancing social inclusion of Australia’s Muslim communities as part of its Community Partnerships for Human Rights program, with a particular focus on building more inclusive, harmonious and safer communities, and creating greater awareness of human rights.

One of these projects supports partnerships between local police and Muslim communities, particularly young people. The aim is to build trust and understanding between police and Muslim communities by helping to bring police and communities together through a range of activities, such as mentoring, sport and workshops on crime, law enforcement and discrimination.

Another project that we’ve recently started is a national community arts and culture initiative aimed at getting Muslim Australians, particularly young Muslim Australians involved in local arts-based programs that promote understanding of human rights issues. In partnership with a range of organisations across Australia, we hope this initiative will bring together Muslim Australians and people from non-Muslim backgrounds.

Through film, music, and other creative initiatives, art can provide a safe environment for participants to interact and explore the complex social and cultural issues related to human rights. This initiative has the potential not only to build the skills and capacity of those involved, but might also inspire collaborative and creative responses to these issues.

Creating a human rights culture

These projects are just a couple of examples of the types of things we can do to create a more harmonious and inclusive society for Australia.

Promoting open and respectful discussion about human rights issues is an important way of promoting understanding about what human rights mean to us and why it’s important that we protect them.

During my time at the Australian Human Rights Commission, I hope to encourage a new understanding of human rights in Australia.

I want all Australians to understand human rights as basic principles and values that can help us create the type of society we can be proud of.

I believe that we all want to live in a society where we can feel safe and protected from violence and harassment no matter what our gender, race or religion.

We all want to live in a democracy in which all of its members count because of who they really are, not because of the label put on them – whether it be a religious or racial label (a Jew, a Muslim, a Christian); an economic label (a consumer, a worker); or a political label (a voter in a marginal electorate).

We all want to live in a society where everyone has a chance to take advantage of his or her capacities - whatever they do, wherever they come from, whoever they are; a society where everyone has a real say about the world they live in.

We all want to live in a society where our children can access appropriate educational opportunities, whether they live in remote Australia or outer city suburbs; where the ageing can get the health care they need.

That kind of society is a society based on human rights.

The federal government has indicated that it will publicly consult with the Australian people about how we can best protect human rights and freedoms.

That consultation, which I hope will be announced before the end of the year, will be an important opportunity to find out what human rights really mean to people in Australia.

I will be working with all sectors of the community, including the federal government and public service, business leaders, community organisations, and disadvantaged communities to discuss how human rights might be relevant to their everyday lives.

Can I just say here that the Jewish community and its leaders have on many occasions provided outstanding and positive contributions to the promotion of human rights in Australia, particularly in promoting dialogue and understanding between diverse sectors of Australian society about human rights and freedom from racial discrimination. Last year, Mr Jeremy Jones was recognised for his  achievements in this area, being awarded the Human Rights Medal because of his dedication to, and consistently outstanding achievements in, the human rights arena over the last three decades. The judges particularly noted his cross-faith work that had been integral in building bridges between communities and minority groups.

I am conscious that the protection of human rights raises particular and important issues for faith-based communities. And I want to find out how effective Australia’s current human rights framework is at protecting the rights of these communities.

So I urge you all to contribute to the consultations about human rights so that your views about how human rights and freedoms should be protected in Australia are heard.