BILLS - Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017 - Second Reading
Posted in Pat's Speeches | February 16, 2017
I rise to speak on the Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017. This amendment would make substantial changes to the procedures for dealing with complaints lodged with the Human Rights Commission under part IIB of the Australian Human Rights Commission Act. These are complaints that allege unlawful discrimination under various provisions of the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. The bill also seeks to change the procedure for dealing with complaints lodged with the Australian Human Rights Commission under part IIB of the Australian Human Rights Commission Act 1986. The bill adds a requirement that the commission, on receiving a complaint, must engage in a preliminary assessment of the complaint and the evidence relating to it before proceeding to a full inquiry. It also adds requirements relating to informing respondents about the complaint.
On 8 November 2016, the Attorney-General referred to the Parliamentary Joint Committee on Human Rights an inquiry into whether the complaints-handling procedures of the Australian Human Rights Commission should be reformed and other matters relating to section 18C of the Racial Discrimination Act. The committee has been receiving submissions and conducting public hearings into these matters and is due to report on 28 February 2017.
Labor opposes this bill on the basis that it pre-empts the Parliamentary Joint Committee on Human Rights, which has been examining this exact issue and is due to report by the end of this month. To suggest that this chamber should support a bill today, or days before a report on this very important matter is released, is clearly contemptuous not only of the joint committee's function but also of the thousands of Australians who have made submissions to that inquiry expecting that their views would be considered and presented in the committee's report for consideration by the Senate. Perhaps Senator Burston believes that the views of the Australian people are not worthy of his consideration. Labor will carefully consider the committee's report before supporting any changes to the Human Rights Commission's complaint processes, which have been widely successful in conciliating complaints while also providing savings in legal costs.
The Human Rights Commission has a special responsibility as our national human rights institution: the protection and promotion of human rights in the country. It is empowered to administer those human rights statutes that Australia has implemented, independent of government. It works to make sure that Australia honours the human rights commitments we have made. The commission provides a direct service to the Australian community. The commission assists people to resolve disputes about discrimination and breaches of human rights. Much of the commission's work is also policy work. The commission promotes human rights and freedoms by engaging with government, industry and community groups. The commission has been responsible for building the case for change in many important issues. It also provides a human rights analysis to the courts and parliamentary inquiries, conducts research and contributes to partnerships.
In carrying out its conciliation function, the commission performs a vital role in ensuring access to justice for people who have experienced discrimination, harassment and vilification. Those sorts of measures ensure that, consistently with article 2 section 3(a) of the ICCPR, people whose human rights or freedoms have been breached have access to an effective remedy.
The commission's complaints process is set out in the Australian Human Rights Commission Act. Any person who wants to make a complaint of unlawful discrimination under one of these federal acts must first make the complaint to the commission. The commission inquires into the complaint and attempts to conciliate it. If a complaint cannot be resolved, the complainant then has the option of making an application to the Federal Circuit Court or the Federal Court. The commission's process and the judicial processes are complementary.
The commission's complaint processes focus on informal dispute resolution, which provides an assessable, timely and cost-effective way for parties to deal with discrimination related disputes. This benefits both the individual parties to a complaint. Users of the commission's services, both complainants and respondents, report high levels of satisfaction. The Human Rights Commission receives thousands of complaints each year, the overwhelming majority of which are settled through conciliation. In the 2016-17 financial year, the Human Rights Commission reported that 94 per cent of the surveyed parties to complaints were satisfied with the process. That figure rose to 98 per cent where complainants were conciliated. Those are not the figures of a process that is necessarily in need of reform.
The commission has been widely successful in reaching conciliation and keeping low the numbers of cases that are brought to court. I note that a recent cost-benefit analysis conducted by the Centre for International Economics found that the commission's dispute resolution service provides significant savings for the Australian community in terms of conciliating the vast majority of cases so that they are not required to be brought to court, saving public administrative and private legal costs.
These advocates of repealing section 18C of the Racial Discrimination Act like to create the spectre of thousands of vexatious complaints about human rights, particularly racial discrimination, brought to courts. The truth is that, in the 22 years that section 18C of the Racial Discrimination Act has been in existence, barely 100 cases have been brought to court. The remaining complaints were either withdrawn or sorted through the conciliation process of the Human Rights Commission, usually involving an apology or a retraction and no court involvement.
While I appreciate that Senator Burston, like me, is relatively new to the Senate, many members of this chamber will remember the Abbott government's withdrawal of his attempt to water down laws protecting against racial abuse, Holocaust denial and harmful hate speech back in 2014. The Abbott government's attempt to water down section 18C of the Racial Discrimination Act was proof of just how out of touch that government was with the mainstream Australian community, which rejected proposed repeals with rallies and thousands of emails and phone calls to elected representatives.
Senator Brandis, the Attorney-General and Leader of the Government in the Senate, rather infamously said, 'People have a right to be bigots, you know.' We know Senator Brandis's position on this issue. We know that some of the members opposite want to use protections against hate speech as a political football to appease the ignorant and deplorable in their party room, and I caution against doing this.
Labor will fight to defend laws against racist hate. We rarely hear advocates for the repeal of section 18C mention Section 18D of the Racial Discrimination Act, which includes broad-ranging exemptions to Section 18C, including 'in the performance of an artistic work' and 'in making a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief'. There are many laws that draw a line on what Australians can and cannot say, and this is a good thing. I hope that no member in this parliament would support the repeal of Australia's defamation laws or consumer laws that ensure that a product is what its manufacturer says it is or a law that bans speech that incites terrorism or violence. Just last year this parliament, with Labor's support, legislated to create a criminal offence for advocating genocide—and I am yet to hear those advocates for free speech protesting this resolution.
Labor are the party of free and fair speech, but we are not the party of hate speech. It is very easy to declare oneself to be committed to freedom of speech, but to those who advocate changing or repealing section 18C of the Racial Discrimination Act I ask: what is it that you want to be able to say? For some in this chamber, free speech is allowing reactionary shock-jocks to indulge in rants that fly in the face of the standards of truth and basic decency that our community expects and deserves. For others, freedom of speech is allowing insulting and offensive racist hate speech. We should condone or accept neither. Laws pertaining to speech are important because words do matter. To paraphrase the words of a speech I gave earlier in this chamber: words do matter, and how we use words is critical. With rights come responsibilities.
Discrimination, including racial discrimination, still occurs all over Australia—and that is why laws like Section 18C of the Racial Discrimination Act are so important. If those opposite do not believe me, I encourage them to go and talk to Indigenous Australians or to new migrants and ask if they have ever experienced racism or racist hate speech. The new Chief Justice of the High Court said in a judgement in 2001:
… to 'offend, insult, humiliate or intimidate' are profound and serious effects, not to be likened to mere slights.
I suggest that senators remember those words when they consider this bill and what it seeks to achieve. Words matter because words can hurt, they can alienate and they can and do discriminate.
Labor understand that freedom of speech should be rooted in the principles of human rights. We reject the false argument that practically any regulation or restriction on what we say infringes our right to free speech, and we reject this bill which seeks to strangle the capacity of the Human Rights Commission. Labor's position is that every Australian, regardless of their race or ethnic background, has the right to live in a society free from the threat of being insulted, humiliated, offended or intimidated because of their race, colour or ethnic origin. The Human Rights Commission is the independent body that provides an avenue for aggrieved citizens to complain if they feel that these rights have been violated. It is a great sadness to me that, instead of debating funding for schools, action on climate change or support for our great and diverse multicultural communities, this chamber is yet again debating the merits of protections against racist hate speech. Finding the balance between free speech and protections against certain kinds of speech is not easy. The balance struck, though, in our current anti-discrimination laws administered by the Human Rights Commission over the past 20 years has worked well and without controversy.
In conclusion, the Human Rights Commission has served Australia well. It has provided essential protections against discrimination based on age, disability, race and gender. Labor will not pre-empt the findings of the Senate committee on potential reforms to the Human Rights Commission's complaints processes, and that is the basis on which we cannot support this bill. But we will firmly stand with the great multicultural communities of Australia against any attempts to allow racist hate speech in our great country.