Inquiry into freedom of speech
Australian Human Rights Commission submission to the Parliamentary Joint Committee on Human Rights
9 December 2016
Australia is rightly proud of its strong democratic institutions, the liberties enjoyed by its citizens and its culture of mutual respect and tolerance.
Our civic culture fosters respect for the rights of individuals, and for the responsibilities we owe to each other. This culture is mutually reinforcing. By recognising our reciprocal obligations, we strengthen the rights of each of us.
As a country, we have given expression to these values in a number of ways. We have ratified international conventions setting out the human rights of all Australians. These conventions typically reflect rights that have long been part of the common law. We have also translated rights into domestic legislation. By doing so, we enable individuals to access remedies when their rights are breached and we establish standards for public conduct that reflect how we want our society to operate.
This inquiry is about both rights and responsibilities: the right to freedom of expression and the responsibility not to engage in acts amounting to racial hatred or racial discrimination.
The Australian Human Rights Commission welcomes the opportunity to discuss both of these fundamentally important rights and the Commission’s role in promoting an understanding and acceptance of them.
The Commission has a particular role in relation to the legal provision that is the focus of this inquiry: section 18C of the Racial Discrimination Act 1975 (Cth) (RDA). The Commission receives thousands of complaints of unlawful discrimination, including complaints under section 18C, and acts as a conciliator between the parties to complaints. The overwhelming majority of complaints that proceed to conciliation are successfully conciliated, with very high rates of reported satisfaction from both complainants and respondents with the Commission’s processes. The Commission’s processes are quick, accessible and free for all parties.
Each year over the past five years, on average fewer than four complainants elected to take their matter to court under section 18C. The decision about whether to make an application to the court is entirely one for a complainant. The Commission is not involved in that process.
There has been some confusion about the way in which sections 18C and 18D of the RDA operate and the Commission supports the promotion of a clearer understanding of these provisions, and how they operate at law. This submission aims to provide a good foundation for that to occur.
The Commission has previously proposed a number of statutory improvements to assist both it and the courts in dealing efficiently with unmeritorious complaints. The recommendations in this submission reiterate these points.
For many years, the Commission has been active in promoting freedom of speech including by making submissions about proposed laws that may infringe freedom of speech, intervening as amicus curiae in court proceedings that raise freedom of speech issues, and convening public forums to discuss a range of areas including media and Internet regulation, intellectual property and defamation laws.
- The current Human Rights Commissioner has announced that he plans to address these free speech issues in his term as Commissioner. The Commission would welcome a reference from the Government to report on these issues in more detail.
- The Australian Human Rights Commission makes this submission to the Parliamentary Joint Committee on Human Rights in relation to its inquiry into freedom of speech.
The scope of the Committee’s inquiry, as set out in the terms of reference, is focussed on whether Part IIA of the RDA imposes unreasonable restrictions on freedom of speech and whether improvements could be made to the way in which the Commission handles the complaints it receives.
The Commission welcomes the opportunity to assist the Committee with its inquiry into these matters. The Commission is uniquely placed to comment on these issues given our legislative mandate under the RDA and Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), and our role in inquiring into and attempting to conciliate complaints alleging breaches of section 18C of the RDA.
The right to freedom of expression is of fundamental importance. It is vital to Australia’s liberal democracy, just as it is to the pursuit of science, commerce, art, public debate, private discussion and other crucial endeavours. The risks associated with limiting freedom of expression mean that the freedom extends to expression that may be regarded as deeply offensive.
Freedom from racial vilification and racial hatred is also crucially important. Racial vilification can harm the freedom of those who are its targets. It can have a silencing effect and can harm the ability of its victims to exercise their freedom of speech, among other freedoms.
Legislation that prohibits racial vilification ensures those who experience the harms of racial vilification have access to a legal remedy. Such legislation also sends a strong message about civility, respect and tolerance in a multicultural society.
Under international human rights law, and under Australian law, neither freedom of expression nor freedom from racial vilification has been considered an absolute or unfettered right. Each of these freedoms has always been subject to limitations and restrictions. As a result, freedom of expression and freedom from racial vilification can and do co-exist. These two freedoms are also subject to further limitations and restrictions that accommodate other human rights and important interests.
In its current form, the RDA as applied by the courts and administered by the Australian Human Rights Commission has successfully resolved hundreds of complaints about racial vilification and racial hatred over the past two decades. Australian courts have interpreted section 18C to cover only acts that cause ‘profound and serious effects, not to be likened to mere slights’. In addition, section 18D provides broad exemptions to protect freedom of speech, including fair comment, and discussion and debate about matters of public interest.
The Commission considers that Part IIA of the RDA as it has been interpreted by the courts strikes an appropriate balance between freedom of speech and freedom from racial vilification.
The Commission observes that there is some confusion about the legal meaning of sections 18C and 18D, and of the Commission’s role in administering the RDA. In particular, it is important to make clear that the RDA does not prohibit speech or conduct that merely hurts a person’s feelings. The Commission supports the promotion of a clearer understanding of the judicial interpretation and practical operation of section 18C and the free speech exemptions in section 18D.
Throughout this submission, the Commission has used case studies of matters dealt with under the legislation to provide concrete examples of how cases under section 18C of the RDA are dealt with in practice.
At this stage, no Government Bill to amend Part IIA of the RDA has been introduced into Parliament, nor has this Committee been tasked with considering any specific amendments to the RDA. If that situation were to change, the Commission would comment on any proposed amendments.
Any proposal to amend the RDA should involve extensive public consultation as it has the capacity to affect the human rights of all Australians. In particular, there should be consultation with those communities whose members are most vulnerable to experiencing racial discrimination.
It is also important to recognise that racial vilification cannot be addressed only by legal prohibitions. Complementary education and awareness raising measures are also required to promote a culture of respect for human rights and responsibilities. The Commission will continue to play a key role in this regard.
This inquiry has also been asked to consider the Commission’s complaint handling function. Complaints made under section 18C of the RDA must first be made to the Commission. The same is true of any other complaint made under the RDA, the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth). The Commission’s role is to inquire into and attempt to conciliate complaints that are made.
The Commission performs a vital role in ensuring access to justice for people who have experienced discrimination, harassment and vilification. The Commission’s processes are free for both complainants and respondents. In 2015-16 the Commission successfully resolved 76% of complaints that proceeded to conciliation thereby diverting these cases from going to court. During the same period, 94% of all surveyed parties (both complainants and respondents) reported that they were satisfied with the service provided by the Commission, with 73% rating the service as ‘very good’ or ‘excellent’.
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. Complaints under section 18C are a small part of the overall number of complaints received by the Commission. Over the last five years, the Commission has received an average of 2,282 complaints each year. Around 5% of these complaints (117 on average) were complaints under section 18C of the RDA. Of these, on average less than 4 complaints per year under section 18C proceeded to court.
This submission makes a number of recommendations that address issues raised by the terms of reference for the inquiry. Broadly, those recommendations fall into three categories: the process for dealing with unmeritorious complaints, the speed with which complaints are dealt with, and the protection of freedom of speech in contexts beyond section 18C of the RDA.
The Commission has previously proposed and supported a number of statutory improvements to the AHRC Act to assist both it and the courts in dealing efficiently with unmeritorious complaints. In the context of this inquiry, the Commission recommends that:
the threshold for lodging a complaint with the Commission be raised to require the person lodging the complaint to allege an act which, if true, could constitute unlawful discrimination
the written complaint to the Commission be required to set out details of the alleged unlawful discrimination which are reasonably sufficient to indicate an alleged contravention of the relevant Act
if the President terminates a complaint on any of the grounds set out in section 46PH(1)(a) to (g) of the AHRC Act, (including that the complaint is trivial, vexatious, misconceived or lacking in substance) then an application cannot be made to the Federal Court or the Federal Circuit Court unless that court grants leave.
More detail about these recommendations is set out in section 8.5 below.
The speed with which complaints are handled by the Commission has been impacted by significant and ongoing resource constraints. These constraints have led to a reduction in staff and an increased burden on the remaining staff. Timeframes for the handling of complaints would be significantly improved if the Commission were appropriately resourced. The Commission recommends that the specific funding cuts to the Commission in the 2014-15 Budget and the 2014-15 Mid-Year Economic and Fiscal Outlook (MYEFO), which have had a disproportionate impact on the Commission in comparison to other similar agencies, be restored.
Finally, the Commission has been active over many years in promoting an understanding and acceptance of freedom of speech in a broad range of contexts (see section 10 below). If this Committee considers that further inquiry is needed into freedom of speech issues as they arise in other areas of law – that is, beyond section 18C of the RDA – the Commission recommends that the Attorney-General request the Commission to undertake that broader inquiry.
This submission addresses the following issues in turn:
a summary of the Commission’s recommendations;
Australia’s international obligations to provide for freedom of expression while also protecting people from racial hatred;
the background to the enactment of Part IIA of the RDA, and how it currently operates;
the seriousness of the conduct caught by Part IIA, having regard to the recent public debate;
the exemptions available in section 18D;
other measures to combat racial vilification and racial hatred in Australia;
the Commission’s processes for handling complaints of unlawful discrimination, including complaints under Part IIA of the RDA;
the incorrect suggestion in the terms of reference for this inquiry that the Commission has engaged in a practice of ‘soliciting’ complaints;
- the Commission’s work in relation to freedom of speech.
- The Commission makes the following recommendations:
The Commission recommends that the requirements in section 46P of the AHRC Act for the lodging of a complaint with the Commission be amended to require that the person lodging the complaint must allege an act which, if true, could constitute unlawful discrimination.
The Commission recommends that section 46P of the AHRC Act be amended to require the written complaint to set out details of the alleged unlawful discrimination which are reasonably sufficient to indicate an alleged contravention of the relevant Act.
The Commission recommends that section 46PO of the AHRC Act be amended to provide that if the President terminates a complaint on any of the grounds set out in section 46PH(1)(a) to (g), then an application cannot be made to the Federal Court or the Federal Circuit Court unless that court grants leave.
The Commission recommends that the following particular steps are taken to alleviate the recent budget constraints that have had a disproportionate impact on the Commission in comparison to other similar agencies:
(a) reverse the cuts announced in the 2014-15 MYEFO of $1.7 million for 2016-17 and $1.6 million for 2017-18;
(b) restore in future budget processes the funding removed in the 2014-15 Budget for the 7th full time Commissioner (who has been appointed since early 2014); and
(c) include in future budget processes equivalent funding for the 8th full time Commissioner (who has been appointed since mid-2016).
The Commission recommends that if this Committee considers that a more comprehensive inquiry is needed into the other freedom of speech issues adverted to by this inquiry’s terms of reference and referred to in section 10 of this submission, the Attorney-General request the Commission to undertake that broader inquiry.
-  In particular s 20 of the RDA and s 11(1)(e), (g) and (h) of the AHRC Act.
-  Throughout this submission, the Commission uses the terms ‘freedom of speech’ and ‘freedom of expression’ interchangeably. Article 19(2) of the ICCPR uses the term ‘freedom of expression’.
-  Throughout this submission, the Commission uses the terms ‘racial vilification’ and ‘racial hatred’ interchangeably. The title to Part IIA of the RDA uses the term ‘racial hatred’, although the Federal Court has held that an applicant is not required to prove that an act had its basis in ‘racial hatred’ in order to establish a breach of section 18C of the RDA (Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, 357  (Kiefel J); Toben v Jones (2003) 129 FCR 515, 549  (Allsop J)).