Tuesday 13 December 2016

Below is the President’s opening statement to the inquiry being conducted by the Joint Parliamentary Committee on Human Rights.

On behalf of the AHRC, may I thank you for the opportunity to explain our Submission to this Joint Parliamentary Inquiry into whether Part IIA of the RDA imposes unreasonable restrictions on freedom of speech and into the Commission’s complaints.

As the Commission celebrates its 30th anniversary this year, it is appropriate that Parliament should scrutinize 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 just received the Commission’s lengthy submission, I would like, briefly, to set out our responses to the terms of reference upon which you have been asked to report.

I would like to begin by referring to that valuable maxim for those who propose law reform, “Hard cases make bad law”.

There has been significant media and political debate about sections 18C and D of the RDA in the context of two complaints to the Commission that have been played out in the public arena. These complaints have been misreported by some sectors of the media, prompting concerns that both the RDA and the statute that determines the work of the Commission- the AHRC Act 1986- warrant reform.

I will begin with the second Term of Reference dealing with Commission’s statutory obligation to deal with, among other matters, complaints under four statutes; the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth).

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 received, on average, 20,000 enquiries and 2,300 complaints a year.  Of those complaints that the Commission attempts to conciliate, 76% are successfully resolved. The complaints process is free and provides a timely and efficient access to justice for tens of thousands of Australians as an alternative to lengthy and costly legal action before the courts.

The main features of the complaint processes are:

  • First, as the High Court has determined in the Brandy Case in 1995, the Commission is not a judicial body. It makes no decisions about the law or a complaint. It has no powers to determine or enforce any agreement that might have been 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. (s 46P)
  • 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 (s 46PF).
  • For practical purposes, all complaints of unlawful discrimination are subject to inquiry and conciliation by or through the President or her delegate.
  • The threshold for complaints 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 role of the Commission in inquiring and conciliating the complaint as an alternative to judicial proceedings.
  • Last year, of those complaints we attempted to conciliate, three quarters were successfully resolved, saving about $200m a year in potential Federal Court costs.
  • In the overwhelming majority of conciliated cases, parties mutually agree on outcomes that include an apology, removal of offensive materials (for example on line), changes to policies and staff training, and a financial settlement.  These outcomes are for the parties. The Commission does not direct these agreements.
  • The Commission process is assessed by 94% of both complainants and respondents surveyed as satisfied; 73% considered the service, ‘very good’ or ‘excellent’.
  • On average complaints are concluded within 3.8 months. 98% of complaints are terminated for one reason or another within 12 months. If the parties ask for more time, that will usually be granted in the interests of achieving a resolution.
  • 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 before first bringing their complaint to the Commission, once the Commission has terminated the matter, the complainant is free to apply to the Federal Court or Federal Circuit Court for a decision according to the law. In fact, on average, only about 2-3% of unresolved complaints ever proceed to court. The AHRC has no role whatsoever in the 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, and I use the word ‘rare’ advisedly, conciliation becomes difficult to achieve. 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 cannot correct inaccurate statements made in public. 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 discussion has been the power to terminate unmeritorious complaints.  The President has the power to terminate complaints that are vexations, trivial, misconceived or lacking in substance. In fact, about 46% 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 to facilitate conciliation and to respect the right of all parties, according to the principles of natural justice. This means that all parties have the protection of administrative law and the right to respond to allegations.

All laws and processes should be subject to regular review and if necessary reform. While the complaints process has been refined over 30 years and has provided genuine access for all to social justice, the Commission has, over many years, proposed improvements to the AHRC Act to deal more efficiently with unmeritorious cases.

Accordingly, the Commission suggests that the Committee consider amendments that:

  • The threshold for lodging a complaint be raised by requiring a complainant to allege an act which, if true, could constitute unlawful discrimination.
  • The written complaint should include details that indicate a breach of the relevant act
  • An application to the Federal Court should be permitted only with special leave of the Court when the President terminates a complaint because, for example, it is trivial, vexatious, misconceived or lacking in substance.

I will now turn to the first Term of Reference that concerns section 18C and section 18D of the RDA. It may be useful to put these complaints into perspective, relative to the overwhelming bulk of the Commission’s work.

  • About 3.8% of complaints last year, or only 77 cases, were made under s18C.  The numbers of s18C complaints are declining. Fewer than 4 such complaints a year on average ever proceed to a court. In short, s18C, while attracting significant public discussion, is but a tiny part of the Commission’s daily work.
  • The small number of s 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 96.2% of the other complaints. Two thirds of these complaints concern discrimination in employment and the delivery of goods and services because of disability, gender, race 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 abuse.
  • May I repeat…”hard cases make bad law”. Any amendment to s 18C may attract severe and unintended consequences.
  • The Commission believes that s 18C and s 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 the 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, quite reasonably, believe that any mere offence or insult in the Australian vernacular will unjustifiably attract the anxiety and public condemnation that allegations racial vilification can attract; a complaint that, as we have seen, can all too easily be made under the current Act. As 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”, (2004) 220 CLR 1, at [239].
  • But of course, as lawyers, the Commission knows that the Federal Court of Australia and the Federal Circuit Court have been consistent in a number of cases in applying s 18C so that it covers only those acts that cause ‘profound and serious effects, not to be likened to mere slights’.
  • Herein lies the policy dilemma. There is, in the minds of some commentators, a disconnect between the consistent jurisprudence of the courts and the common or 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 D.
  • Some cases might help to illustrate the way the law applies in practice. It is notable that almost all s 18C cases before the courts are dismissed either because s 18C is not breached or because s 18D provides a free speech protection. Only a handful of complaints has been successful. In our submission we provide some examples.

The following three cases are unusual ones in which the civil action was successful:

    • This year, the Court in Murugesu v Australian Postal Corp. found that an employee who called the plaintiff a ‘fucking black bastard’, and told him that ‘you black bastards should do the slave jobs’, had been grossly offensive in breach of s 18C.
    • In Kanapathy’s case a solicitor was found to have breached s18C when she called a court security guard a ‘Singaporean prick’.
    • By contrast, the publications in the so-called Bolt case were found not to be protected by s 18D because they were inaccurate and not made in good faith.

The next four cases are more typical where the civil action failed, including on the free speech ground.

    • Walsh v Hanson, the Commission found that the publication “Pauline Hanson: the Truth” did not contravene s 18C because it dealt reasonably and in good faith with a matter of public interest.
    • In Hagan’s Case, the FCA found that a sports ground stand called “Nigger Brown” was not offensive, because it was a fond recognition of a former player.
    • In Bropho, the Federal Court found that a cartoon in the West Australian newspaper, depicting an aboriginal head asking to be sent back to England, was protected as artistic and published in good faith.
    • 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 as a comedy performance done in good faith.

In summary, most s 18C cases fail, often on the basis of freedom of speech.

I suggest that sections 18C and D send a clear an unequivocal message that abusive race hatred speech is not consistent with Australian values. Were s 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 I have mentioned is acceptable.  

I suggest that to weaken s18C in any way would be a seriously retrograde step. If anything, the section should be strengthened and clarified.

With respect to the third Term of Reference, the Commission totally rejects the underlying premise. The Commission does not solicit complaints. Complaints are a matter exclusively for the complainant.

Finally, may I point out that the budget of the Commission has been severely reduced over recent years for a number of reasons. The core funding of about $14m for all the Commission’s functions is seriously inadequate to respond to so many enquiries and complaints. As a backlog is now developing, the high standard of service to the community is jeopardised.

The terms of reference raise many complex questions for this Committee. I and my colleagues look forward to assisting the Inquiry in its considerations over the coming weeks.

Thank you

Photo: Australian Parliament House ParlView